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05/10/2022 - Regular - Packet
City of Port Orchard Council Meeting Agenda May 10, 2022 6:30 p.m. The City Council meeting is held remotely through Zoom. We have provided options for the public to attend through telephone, internet or other means of remote access, and also provides the ability for persons attending the meeting (not in- person) to hear each other at the same time. Therefore; Remote access only Link: https://us02web.zoom.us/J/88345057450 Zoom Webinar ID: 883 4505 7450 Zoom Call-In: 1 253 215 8782 Guiding Principles •Are we raising the bar? •Are we honoring the past, but not living in the past? •Are we building connections with outside partners? •Is the decision-making process positively impacting diversity, equity, and inclusion? 1.CALL TO ORDER A.Pledge of Allegiance 2.APPROVAL OF AGENDA 3.CITIZENS COMMENTS (Please limit your comments to 3 minutes for items listed on the Agenda and that are not for a Public Hearing. Please keep your comments respectful and no personal attacks. This is a comment period and not a question-and-answer session. When recognized by the Mayor, please state your name for the official record. If you are attending remotely via telephone, enter *9 from your keypad to raise your hand. 4.CONSENT AGENDA (Approval of Consent Agenda passes all routine items listed below, which have been distributed to each Councilmember for reading and study. Consent Agenda items are not considered separately unless a Councilmember so requests. In the event of such a request, the item is returned to Business Items.) A.Approval of Vouchers and Electronic Payments B.Approval of Payroll and Direct Deposits C.Adoption of a Resolution Declaring Certain Equipment as Surplus and Authorizing its Disposition (Wallace) Page 4 D.Approval of the April 26, 2022, City Council Meeting Minutes Page 6 5.PRESENTATION 6.PUBLIC HEARING A.McCormick Woods Phases III, IV, and V Preliminary Plats for the Extension of Term and Revisions to Vested Development Standards (Bond) Page 12 Mayor: Rob Putaansuu Administrative Official Councilmembers: Mark Trenary E/D & Tourism Committee, Chair Utilities/Sewer Advisory Committee Transportation Committee KRCC-alt Shawn Cucciardi Finance Committee E/D & Tourism Committee Lodging Tax, Chair Fred Chang Economic Development & Tourism Committee Land Use Committee Transportation Committee Jay Rosapepe Finance Committee, Land Use Committee KRCC, PSRC-alt, PSRC Transpol-alt, KRCC Transpol alt, KRCC Planpol-alt, John Clauson Finance Committee, Chair Utilities/Sewer Advisory Committee Kitsap Public Health District-alt Cindy Lucarelli (Mayor Pro-Tempore) Festival of Chimes & Lights Committee, Chair Utilities/Sewer Advisory Committee, Chair Kitsap Economic Development Alliance Scott Diener Land Use Committee, Chair Transportation Committee Department Directors: Nicholas Bond, AICP Development Director Mark Dorsey, P.E. Director of Public Works/City Engineer Tim Drury Municipal Court Judge Noah Crocker, M.B.A. Finance Director Matt Brown Police Chief Brandy Wallace, MMC, CPRO City Clerk Meeting Location: Council Chambers, 3rd Floor 216 Prospect Street Port Orchard, WA 98366 Contact us: (360) 876-4407 cityhall@cityofportorchard.us Please turn off cell phones during meeting and hold your questions for staff until the meeting has been adjourned. The Council may consider other ordinances and matters not listed on the Agenda, unless specific notification period is required. Meeting materials are available on the City’s website at: www.cityofportorchard.us or by contacting the City Clerk’s office at (360) 876-4407. May 10, 2022, Meeting Agenda Page 2 of 3 B.Ordinances Adopting Port Orchard Municipal Code Chapter 20.70 Wireless Communication Facilities, Port Orchard Municipal Code Chapter 20.72 Small Cell Wireless Communication Facilities, and Amending Port Orchard Municipal Code Section 20.39.270 (Bond) Page 65 C.McCormick West Development Agreement for the Extension of Term and Revisions to Vested Development Standards (Bond) Page 95 D.Haven Townhomes Development Agreement for Transportation Impact Fee Credits (Bond) Page 111 7.BUSINESS ITEMS A.Adoption of an Ordinance Adopting Port Orchard Municipal Code Chapter 20.70 Wireless Communication Facilities (Bond) Page 113 B.Adoption of an Ordinance Adopting Port Orchard Municipal Code Chapter 20.72 Small Cell Wireless Communication Facilities and Amending Port Orchard Municipal Code Section 20.39.270 (Bond) Page 139 C.Adoption of an Ordinance Approving a Development Agreement for the Haven Townhomes Project for Transportation Impact Fee Credits (Bond) Page 159 D.Adoption of an Ordinance Approving a Grant Agreement with the State of WA TIB for Improvements to Pottery Road (Dorsey) Page 185 E.Adoption of an Ordinance Approving a Contract with the WA State Department of Transportation for the Bay Street Pedestrian Pathway West Situational Study (Dorsey) Page 193 F.Adoption of a Resolution Approving a Contract with Olson Brothers Pro-Vac, LLC for the 2022 Stormwater Catch Basin and Pipe Maintenance Project (Dorsey) Page 204 G.Adoption of a Resolution Approving a Contract with Makers Architecture and Urban Design LLP for Development of a Housing Action Plan (Bond) Page 242 H.Adoption of a Resolution Authorizing the Purchase of a Body-Worn Camera System for the Police Department (M. Brown) Page 264 I.Approval of Amendment No. 3 to Contract No. 082-19 with Kitsap Public Facility District for the Community Event Center Project (Bond) Page 281 J.Approval of a 2-Day Use of Parking Lot No. 4: Fathoms O’ Fun Pirates Rendezvous (Wallace) Page 308 K.Approval of Road Closures for a Special Event: Fathoms O’ Fun Grand Parade (Wallace) Page 319 L.Approval of the April 19, 2022, Work Study Session Meeting Minutes Page 348 8.DISCUSSION ITEMS (No Action to be Taken) A.Continued: Veterans Park 9.REPORTS OF COUNCIL COMMITTEES 10.REPORT OF MAYOR 11.REPORT OF DEPARTMENT HEADS 12.CITIZEN COMMENTS (Please limit your comments to 3 minutes for any items not up for Public Hearing. When recognized by the Mayor, please state your name for the official record. If you are attending remotely via telephone, enter *9 from your keypad to raise your hand.) 13.EXECUTIVE SESSION: Pursuant to RCW 42.30.110, the City Council may hold an executive session. The topic(s) and the session duration will be announced prior to the executive session. 14.CITY COUNCIL GOOD OF THE ORDER Please turn off cell phones during meeting and hold your questions for staff until the meeting has been adjourned. The Council may consider other ordinances and matters not listed on the Agenda, unless specific notification period is required. Meeting materials are available on the City’s website at: www.cityofportorchard.us or by contacting the City Clerk’s office at (360) 876-4407. May 10, 2022, Meeting Agenda Page 3 of 3 15.ADJOURNMENT Economic Development and Tourism May 16, 2022; 9:30am; 3rd *West Sound Utility District, 2924 SE Lund Avenue, Port Orchard City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: Assets of the City that are no longer useable, no longer of value to the City, or are surplus to City needs may be removed from City ownership, sold, or in any other way disposed with a declaration of surplus by the City Council. Staff is asking the Council to surplus obsolete council chambers audio equipment – amplifiers, signal processors and control units. The Finance department has estimated the current value of $0.00. Although the City’s internal asset value of the item has been determined to be of no value, any money from the sale of surplus property is deposited into the Fund which owned the item. When disposal is to the general public through direct sale, sealed bid or auction, final determination of value shall be the highest responsible bid or offer. The City may transfer a surplus asset to another public agency upon written request and a determination that it is in the public interest. Staff will dispose the item in a manner that reflects the best interest of the City. Recommendation: Staff recommends adoption of a Resolution declaring the equipment as surplus. Relationship to Comprehensive Plan: N/A Motion for consideration: I move to adopt a Resolution declaring obsolete council chambers audio equipment – amplifiers, signal processors and control units as surplus and allowing for its disposition in a manner that reflects the best interest of the City. Fiscal Impact: Money received from the disposition of surplus equipment is deposited in the Fund of ownership. Alternatives: Do not adopt. Attachments: Resolution Page 4 of 351 RESOLUTION NO. _____ A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, DECLARING CERTAIN EQUIPMENT AS SURPLUS AND AUTHORIZING ITS DISPOSITION. WHEREAS, certain council chambers audio equipment – amplifiers, signal processors and control units owned by the City of Port Orchard have become surplus to the needs of the City; and WHEREAS, the City Council has determined that the present fair market value of the obsolete council equipment to be $0.00; and WHEREAS, the City Council has, pursuant to the requirements of POMC 1.30.020, considered the possible future requirements of the City, the present value of the equipment, the likelihood of locating a buyer, possible intergovernmental cooperation, and the general welfare of the citizens of Port Orchard in determining whether it is in the best interests of the City to dispose of such equipment; and WHEREAS, the City Council desires to dispose of said equipment in the best interests of the City, now, therefore; THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: the obsolete council chambers audio equipment – amplifiers, signal processors and control units are declared as surplus to the needs of the City. Staff is instructed to dispose of the items in a manner that reflects the best interest of the City. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage this 10th day of May 2022. Robert Putaansuu, Mayor ATTEST: Brandy Wallace, MMC, City Clerk Page 5 of 351 City of Port Orchard Council Meeting Minutes Regular Meeting of April 26, 2022 1. CALL TO ORDER AND ROLL CALL Mayor Putaansuu called the meeting to order at 6:30 p.m. Roll call was taken by the City Clerk as follows: Mayor Pro-Tem Lucarelli Present via Remote Access Councilmember Chang Present via Remote Access Councilmember Clauson Present via Remote Access Councilmember Cucciardi Present via Remote Access Councilmember Diener Present via Remote Access Councilmember Trenary Present via Remote Access Councilmember Rosapepe Present via Remote Access Mayor Putaansuu Present via Remote Access Staff present via remote access: Finance Director Crocker, Police Chief M. Brown, Community Development Director Bond, Utility Manager J. Brown, City Attorney Archer, HR Manager Lund, HR Specialist Spalding, City Clerk Wallace, and Deputy City Clerk Floyd. The meeting also streamed live on YouTube. A. PLEDGE OF ALLEGIANCE (Time Stamp: 0:00:32) Mayor Putaansuu led the audience and Council in the Pledge of Allegiance. 2. APPROVAL OF AGENDA (Time Stamp: 0:00:52) MOTION: By Councilmember Clauson, seconded by Councilmember Cucciardi, to add Business Item 7H Adoption of a Resolution Regarding Code Enforcement Abatement Action at 4145 Ramsey Road SE. The motion carried. MOTION: By Councilmember Diener, seconded by Councilmember Lucarelli, to approve the agenda as modified. The motion carried. 3. CITIZENS COMMENTS (Time Stamp: 0:02:47) There were no citizen comments. Page 6 of 351 Minutes of April 26, 2022 Page 2 of 6 4. CONSENT AGENDA (Time Stamp: 0:03:28) A. Approval of Voucher Nos. 83909 through 83979 including bank drafts in the amount of $211,083.28 and EFT’s in the amount of $195,208.03 totaling $406,291.31. B. Approval of Payroll Check Nos. 83903 through 83908 including bank drafts and EFT’s in the amount of $223,130.30 and Direct Deposits in the amount of $214,562.63 totaling $437,692.93. C. Approval of a Lease with the Washington State Military Department for the Port Orchard Storage Building (Contract No. 006-22) D. Adoption of a Resolution Authorizing the Purchase of Twenty-Five Ballistic Helmets via DES Master Contract No. 164712 (Resolution No. 042-22) E. Approval of the April 12, 2022, City Council Meeting Minutes MOTION: By Councilmember Diener, seconded by Councilmember Trenary, to approve the consent agenda. The motion carried. 5. PRESENTATION (Time Stamp 0:03:58) A. Visit Kitsap-City of Port Orchard Tourism Beth Javens, Director of Visit Kitsap, provided a presentation which included a brief history, tourism due to the pandemic, support of local businesses, outdoor activities, hyper-local communities, marketing and advertising for Port Orchard, evolving the look and feel of the Visit Kitsap brand, Datafy program, website and city analytics, Kitsap Film Office application, Maritime Washington National Heritage Area, and water trail system. 6. PUBLIC HEARING There were no public hearings. 7. EXECUTIVE SESSION (Time Stamp 0:26:20) At 6:57 p.m., Mayor Putaansuu recessed the meeting for a 15-minute executive session pursuant to RCW 42.30.110(1)(i) to discuss litigation or legal risks of a proposed action where public discussion would have adverse legal or financial consequences to the City. City Attorney Archer and Development Director Bond were invited to attend, and City Attorney Archer noted action will follow. 8. BUSINESS ITEMS (Time Stamp: 0:27:29) A. Approval of a Memorandum of Understanding Regarding In Re: National Prescription Opiate Litigation, Case No. 1:17-MD-2804, United States District Court Page 7 of 351 Minutes of April 26, 2022 Page 3 of 6 MOTION: By Councilmember Cucciardi, seconded by Councilmember Diener, to authorize the Mayor to execute the Memorandum of Understanding in this opiate litigation. The motion carried. (Contract No. 067-22) B. Adoption of an Ordinance Accepting a Loan from the Drinking Water State Revolving Fund (DWSRF) as Managed by Washington State Department of Health (DOH) for the Well #11 Development, Treatment and Booster Pump Station Project (Time Stamp: 0:32:16) MOTION: By Councilmember Lucarelli, seconded by Councilmember Clauson, to adopt Ordinance No. 012-22, authorizing the Mayor to execute Contract No. C058-22 with the Washington State Department of Health and accepting a DWSRF Construction Loan in the amount $8,080,000. The motion carried. C. Adoption of a Resolution Regarding Code Enforcement Abatement Action at 515 Perry Avenue North (Time Stamp 0:36:17) MOTION: By Councilmember Clauson, seconded by Councilmember Lucarelli, to adopt a resolution authorizing the Mayor or designee to move forward with legal action against the owners of real property located at 515 Perry Avenue North, for all claims and damages appropriate to remediate the public nuisance conditions and code violations existing on said property. The motion carried. (Resolution No. 045-22) D. Adoption of a Resolution Pertaining to the City’s Wellness Committee and Implementation Policies and Repealing and Replacing Resolution No. 1799 (Time Stamp 0:45:27) MOTION: By Councilmember Diener, seconded by Councilmember Trenary, to adopt the attached resolution, pertaining to the City’s Wellness Committee, repealing, and replacing Resolution No. 1799. The motion carried. (Resolution No. 043-22) E. Adoption of a Resolution Establishing Fee Schedules for the Departments of Community Development and Public Works (Time Stamp 0:50:04) MOTION: By Councilmember Diener, seconded by Councilmember Lucarelli, to adopt a resolution establishing fee schedules for the departments of Community Development and Public Works as presented. The motion carried. Page 8 of 351 Minutes of April 26, 2022 Page 4 of 6 (Resolution No. 044-22) F. Adoption of a Resolution Authorizing the City to Apply for 3 Recreation Conservation Office Grants (Time Stamp 0:53:56) MOTION: By Councilmember Clauson, seconded by Councilmember Diener, to adopt a resolution authorizing the City’s application for RCO grant funding for the RCO ALEA Port Orchard Waterfront Plaza and Enhancement project, the RCO YAF Givens Park Basketball and Tennis Court Remodel project, and the RCO WWRP - Recreation Old Clifton Road Separated Pathway project, and for the Mayor to sign all necessary forms to effectuate the application. The motion carried. (Resolution No. 040-22) G. Approval of Road Closures for a Special Event: Mustangs on the Waterfront (Time Stamp 058:36) MOTION: By Councilmember Lucarelli, seconded by Councilmember Trenary, to approve the road closures identified in the application for the Mustangs on the Waterfront event taking place on Sunday, July 31, 2022, as presented The motion carried. H. New Item: Adoption of a Resolution Regarding Code Enforcement Abatement Action at 4145 Ramsey Road SE (Time Stamp 1:02:26) MOTION: By Councilmember Cucciardi, seconded by Councilmember Clauson, to authorize the Mayor or designee, Code Enforcement Officer and City Attorney to move forward with the lawsuit for nuisance abatement. The motion carried. (Resolution No. 041-22) 9. DISCUSSION ITEMS (No Action to be Taken) (Time Stamp: 1:07:32) A. Continued: Veterans Park Mayor Putaansuu shared that at the Housing Kitsap meeting, Commissioner Wolf announced Housing Kitsap issued final notices to anyone in the park. They have 72 hours to vacate. Services were offered to everyone at the park. City Attorney Archer explained most of the park population has moved on and the County has committed to cleanup. The RV which was parked at the south end of the park is now parked in the Tractor Supply parking lot which is private property. Page 9 of 351 Minutes of April 26, 2022 Page 5 of 6 Council Direction: No direction was given to staff. 10. REPORTS OF COUNCIL COMMITTEES (Time Stamp: 1:09:58) Mayor Putaansuu reported the Economic Development and Tourism Committee is scheduled to meet May 16th. The Utilities Committee is scheduled to meet May 10th. The Sewer Advisory Committee is scheduled to meet May 18th. Councilmember Clauson reported on the April 19th Finance Committee meeting. Councilmember Chang reported on the April 26th Transportation Committee meeting. Councilmember Lucarelli reported on the April 18th Festival of Chimes and Lights Committee meeting. The next meeting is scheduled for May 16th. Councilmember Chang and Community Development Director Bond reported on the April 20th Land Use Committee meeting. Mayor Putaansuu briefly spoke about Housing Kitsap and audits. 11. REPORT OF MAYOR (Time Stamp: 1:25:08) The Mayor reported on the following: • In accordance with Ordinance 008-20 ‘Delegating Authority to the Mayor for Creating and Modification of Job Descriptions’ he reported on a revised job description for the Court Administrator; • Public Facilities District meeting updates; and • Reported on Council meeting minutes from 50 and 75 years ago. 12. REPORT OF DEPARTMENT HEADS (Time Stamp 1:31:39) Community Development Director Bond reported on the KRCC (Kitsap Regional Coordinating Council) population and employment target setting. HR Manager Lund reported the City will receive its 100th employee the following day. Police Chief Brown reported on hiring and retirement of employees, calls for service, and vigilante shooting arrests. 13. CITIZEN COMMENTS (Time Stamp: 1:35:19) Gregor Fjellrev spoke to the presentation from Visit Kitsap, social media, and properties located at 515 Perry Avenue and 4145 Ramsey Road. Page 10 of 351 Minutes of April 26, 2022 Page 6 of 6 14. GOOD OF THE ORDER (Time Stamp: 1:38:40) There were no good of the order comments. 15. ADJOURNMENT The meeting adjourned at 8:25 p.m. No other action was taken. Audio/Visual was successful. Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 11 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City has negotiated an amendment of the development agreement associated with McCormick Woods Phases III, IV, and V Preliminary Plats recorded on September 16, 2013 through the development agreement process coupled with the Credit Agreement for Capital Facility Charges executed by the City and McCormick Communities on May 14, 2022. The construction of five Capital Improvement Projects by McCormick Communities, L.L.C. enables the City to supply water to and outside of the McCormick property and increase the City’s total water storage capacity by 50 % in all pressure zones. The construction projects described in the CFC Credit Agreement provide a benefit to the City and its residents. This agreement, if approved, would extend the term of the Annexation Agreement 20 years from the date of execution of this agreement or until McCormick receives the Maximum Water CFC Credit as described in Sections 6 and 11 of the Credit Agreement. However, certain development standards established in the initial Development Agreement are outdated and/or irrelevant. Specifically, McCormick waives any vesting to: • former development standards of residential lots and structures; and • the previous roadway sections. Subsequent development must demonstrate consistency with the current regulations associated with those listed above, or as described in Appendix D attached to this Report. Additionally, McCormick Communities agrees to develop a park, Saint Andrew’s Park, largely consistent with Exhibit C of the Development Agreement within five years of the execution date of the development agreement or upon recording of the next 150 lots recorded within the area, whichever occurs first. Saint Andrew’s Park is to be owned and maintained by the McCormick Woods Homeowners Association in perpetuity. The preliminary plat of McCormick Woods was approved based on Kitsap County’s system for approval of modifications to preliminary plats during the final plat approval process. The City and McCormick Communities recognize that the City’s standards for distinguishing between minor modification, which may be approved by the staff, and major modifications, which requires review by the Hearing Examiner, are more stringent than the County’s. Through this agreement though, City staff is authorized to permit minor modifications without the necessity of further review by the Hearing Examiner during the final plat process provided that the modification is consistent with the Page 12 of 351 Public Hearing 6A Page 2 of 2 Department of Ecology’s Stormwater Management Manual in effect at the time of the modification and does not exceed certain thresholds established in the agreement. Additionally, development in the area remain vested to the previous performance standards related to critical areas, but updated wetland delineations will be required upon the submittal of subsequent development activity permit applications. POMC 20.26 (Development Agreements) outlines the process for development agreement approval. Developers seeking a development agreement, must submit an application. In this case, the application for the development agreement was filed on April 1, 2022. The proposed development agreement is related to the May 14, 2022 Credit Agreement for Capital Facility Charges and development agreement associated with McCormick Woods Phases III, IV, and V Preliminary Plats recorded on September 16, 2013. If the ordinance for the Development Agreement is approved subsequent to the public hearing (Council Agenda Item XX), the Developer will receive a term extension and modified performance standards related to the September 16, 2013 McCormick Woods Phases III, IV, and V Preliminary Plats Development Agreement. Relationship to Comprehensive Plan: The Development Agreement includes a portion of the Capital Improvement Program, which is incorporated into the Comprehensive Plan by reference. Recommendation: Staff recommends that the City Council hold a public hearing on the McCormick Woods development agreement amending development agreement associated with McCormick Woods Phases III, IV, and V Preliminary Plats recorded on September 16, 2013. Fiscal Impact: The proposed amendment results in the developer constructing five projects on the City’s current Capital Improvement Plan (that the City is unable to finance and construct itself. Alternatives: Do not approve the Development Agreement; request changes to the Development Agreement. Attachments: Ordinance; McCormick Woods Development Agreement; Exhibits to McCormick Woods Development Agreement, 2013 McCormick Woods DA Page 13 of 351 1584495.1 - 366922 -0037 ORDINANCE NO. ___ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE AN AMENDED DEVELOPMENT AGREEMENT WITH McCORMICK COMMUNITIES, LLC FOR THE McCORMICK WOODS DEVELOPMENT, PHASES III, IV, AND V PRELIMINARY PLATS; PROVIDING FOR SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to RCW 36.70B.170, the City Council has the authority to review and enter into development agreements that govern the development and use of real property within the City; and WHEREAS, the City Council has adopted standards and procedures governing the City’s use of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code (POMC); and WHEREAS, McCormick Communities, LLC’s predecessor, GEM 1 LLC entered into a Development Agreement with Port Orchard for the Development known as “McCormick Woods”, Phases III, IV, and V Preliminary Plats and such Development Agreement was recorded on September 16, 2013; and WHEREAS, the City and McCormick Communities, LLC have prepared an Amendment to that Development Agreement, for the purposes of extending the term of the Development Agreement, waiving certain vesting to prior development standards, establishing new applicable standards, addressing minor modifications, updating applicable roadway standards, and establishing the timing and scope of the development of the St. Andrew’s Park to be located within the Development; and WHEREAS, the Amendment of the Development Agreement is attached to this Ordinance as “Exhibit A”; and WHEREAS, on DATE , 2022, the City’s SEPA official issued a determination of non-significance for the proposed Amendment of the Development Agreement and there have been no appeals; and WHEREAS, on DATE , 2022, the City Council held a public hearing on the proposed Amendment of the Development Agreement, and (comments received/not received, etc); and Page 14 of 351 Ordinance No. __-22 Page 2 of 3 1584495.1 - 366922 -0037 WHEREAS, the City Council, after careful consideration of the Amendment of the Development Agreement and all public comments and testimony, finds that the Amendment of the Development Agreement is consistent with the City’s Comprehensive Plan and development regulations, the Growth Management Act, Chapter 36.70A RCW, and that the amendments herein are in the best interests of the residents of the City; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. Findings. The City Council adopts all of the “Whereas” sections of this ordinance and all “Whereas” sections of the Amendment of the Development Agreement as findings in support of this ordinance. SECTION 2. Authorization. The City Council approves of and authorizes the Mayor to execute an Amendment of the with McCormick Communities, LLC as provided in “Exhibit A” of this Ordinance. SECTION 3. 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 of constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 4. Corrections. Upon the approval of the city attorney, the city clerk and/or code publisher is authorized to make any necessary technical corrections to this Ordinance, including but not limited to the correction of scrivener’s/clerical errors, references, Ordinance numbering, section/subsection numbers, and any reference thereto. SECTION 5. Effective Date. This Ordinance shall be published in the official newspaper of the city and shall take full force and effect five(5) days after posting and publication as required by law. A summary of this Ordinance may be published in lieu of publishing the entire Ordinance, as authorized by state law. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this day of May, 2022. ____ Robert Putaansuu, Mayor Page 15 of 351 Ordinance No. __-22 Page 3 of 3 1584495.1 - 366922 -0037 ATTEST: _______ Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: Sponsored by: Charlotte A. Archer, City Attorney ****, Council Member PUBLISHED: EFFECTIVE DATE: EXHIBIT A: McCORMICK COMMUNITIES, LLC AMENDMENT TO DEVELOPMENT AGREEMENT FOR McCORMICK WOODS, PHASES III, IV, and V PRELIMINARY PLATS Page 16 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 1 1526807.13 - 366922 -0037 FG:74422323.6 AMENDMENT OF DEVELOPMENT AGREEMENT McCormick Woods Phases III, IV, and V Preliminary Plats This AMENDMENT OF DEVELOPMENT AGREEMENT for McCormick Woods Phases III, IV, and V Preliminary Plats (“Amendment Agreement”) is entered into between the City of Port Orchard, a Washington municipal corporation (“City” or “Port Orchard”) and McCormick Communities, LLC, a Washington limited liability company (“McCormick”). City and McCormick are each a “Party” and together the “Parties” to this Amendment Agreement. RECITALS A. In 2013 the City and McCormick’s predecessor in interest, GEM 1 LLC, entered into the “DEVELOPMENT AGREEMENT for McCormick Woods Phases III, IV, and V Preliminary Plat” recorded on September 16, 2013 (“Development Agreement”). The Development Agreement, as stated in its Recital F, is a development agreement authorized by RCW 36.70C.170. B. McCormick Woods is a portion of the larger McCormick Property that is described in the CREDIT AGREEMENT FOR CAPITAL FACILITY CHARGES (“Credit Agreement”) that the Parties are executing simultaneously with this Amendment Agreement. The McCormick Woods portion of the larger McCormick Property is depicted on Exhibit A to this Amendment Agreement. C. As set forth in the Credit Agreement, McCormick is financing and constructing five projects on the City’s current Capital Improvement Plan (hereafter the Five CIP Projects) that the City is unable to finance and construct itself. By doing so, McCormick is creating water infrastructure that will enable the City to supply water to the McCormick Property as the City agreed to do in the 1998 PSA between the City and McCormick’s predecessor, the McCormick Water Company. D. By constructing the Five CIP Projects, McCormick also is constructing water infrastructure that will enable the City to provide water to areas of the City outside of the McCormick Property. McCormick’s construction will increase the City’s total water storage capacity by approximately 50% in all pressure zones and create infrastructure to serve the entire City in the event of shortfalls in water supply or storage in other areas of the City. E. The CIP estimates the total cost of the Five CIP Projects to be $11,840,625. McCormick will receive partial reimbursement for this investment in the Five CIP Projects by means of the Water CFC Credit described in the Credit Agreement. As stated in Section 3 of the Credit Agreement, McCormick and the City anticipate that McCormick will construct the Five CIP Projects within the next five years (although drilling of Well 12 may take longer because the City needs to first secure water rights under the Foster program), but McCormick will receive the anticipated credit per ERU over the next 20 years, and may never receive full credit, depending on the market for lots within the McCormick Property. Page 17 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 2 1526807.13 - 366922 -0037 FG:74422323.6 F. When the $11,840,625 invested by McCormick in the Five CIP Projects is adjusted for the time value of money over 20 years, the additional financing cost to McCormick is between $1,933,991 and $2,544,900, depending on the rate at which new ERUs are developed. This financing cost is not reimbursable under the CFC Credit Agreement, but it presents significant public benefit to the City and constitutes consideration for the City entering into this Amendment Agreement to extend the term of the Annexation Agreement to coincide with the term of the Credit Agreement, so that sufficient ERUs are potentially available to provide the credits needed to defray a meaningful portion of the costs of financing and building the Five CIP Projects. G. In addition, Section 3 of the Development Agreement vests McCormick to Development Standards as defined in section 1.a(5) of the Development Agreement together with the “changes” to these Development Standards identified in section 3 of the Development Agreement. McCormick is willing to forgo its vested rights to the “changes” to the Development Standards set forth in subsections 3.a, 3.b, and 3.h of the Development Agreement. H. On March 14, 2022 the City and McCormick executed the Credit Agreement, and the Parties are now executing this Amendment Agreement while also amending the Annexation Agreement for McCormick West. These three agreements are intended to be construed together as part of a larger agreement between the Parties, with each agreement constituting part of the consideration for the other two agreements. I. In consideration of the promises and undertakings described above together with those in the Credit Agreement, the City and McCormick agree as follows: AGREEMENT 1. Development Agreement affirmed. The Development Agreement, together with the vested rights that McCormick obtained pursuant to RCW 58.17.033(1) when it submitted complete applications for the preliminary plats of McCormick Woods Phases III, IV, and V, are affirmed except as modified by this agreement. 2. Extension of term: The term of the Development Agreement and of the associated vested rights, are hereby extended to coincide with the term of the Credit Agreement, which shall be 20 years from execution of this Amendment Agreement or until McCormick receives the Maximum Water CFC Credit as described in Sections 6 and 11 of the Credit Agreement. However, in no case shall this Agreement extend beyond the twenty-year extension term. 3. Section 3 Development Standards. Section 3 of the Development Agreement vests McCormick to Development Standards as defined in Section 1.a(5) of the Development Agreement together with “changes” to these Development Standards identified in Section 3 of the Development Agreement. McCormick hereby waives its vested rights under Page 18 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 3 1526807.13 - 366922 -0037 FG:74422323.6 subsections 3.a, 3.b, 3.e, and 3.h, and agrees to modify its vested rights under subsections 3.d and 3.f as set forth below in sections 4 and 5 of this Amendment Agreement (there is no subsection 3.g in the Development Agreement). McCormick otherwise agrees that development of residential lots and structures within McCormick Woods will be consistent with Title 20 of the City Code as it exists of the date of execution of this agreement, except as provided in subsection 3.c (landscaping), provided that in the event of conflict between specific regulations within Title 20 and the development depicted and approved on the face of the Preliminary Plats for Phases III, IV, and V of McCormick Woods, including any amendments to these Preliminary Plats, the Preliminary Plats shall control. Provided, however, if major modifications are made to a plat, then those modifications would be based on the then-current applicable regulations and that plat would not be vested to an earlier vesting date under either the Development Agreement, or this Amendment. Further, provided, that future owner(s) of any of the parcels of the Property to which this Amendment applies may, at their option, waive this or subsequent vesting. 4. Section 3.d Minor Modifications. Section 3.d is hereby amended to read as follows: Final Plat – Minor modifications. The preliminary plats of McCormick Woods (Phases III, IV, and V) were designed and approved based on Kitsap County’s system for approval of minor modifications to the preliminary plat during the final plat review and approval process. The Parties recognize that the City’s standards for distinguishing between minor modification, which may be approved by the staff, and major modifications, which require re-review by the Hearing Examiner, are more stringent than the County’s. During the final plat process for McCormick Woods (Phases III, IV, and V), the City staff is authorized to permit minor modifications without the necessity of further review by the Hearing Examiner so long as the modification is consistent with the Department of Ecology’s Stormwater Management Manual in effect at the time of the modification and also does not (1) increase or decrease the number of authorized homes by more than 30 dwelling units, (2) increase the number of lots by more than 30 lots (however, modifying single- family dwelling units to attached (zero lot line) housing units would qualify for a minor modification); (3) increase traffic volumes above the volume contemplated by the 2021 Development Agreement for Transportation; (4) require modification or alteration of a critical area or buffer that was not contemplated by the preliminary plat approval or as described in Section 7 of the Amendment; or (5) reduce the amount of open space or recreational facilities contemplated by the preliminary plat approval. 5. Section 3.f Vesting Waived; Updated Roadway Cross Sections. McCormick waives its Section 3.f vesting to the Road Cross Sections that were attached as Appendix D-1. A new Appendix D-1 with applicable Road Cross Sections is attached to this Amendment Agreement and will replace the Appendix D-1 to the Development Agreement. These updated Road Cross Sections will apply to future phases of the development. Any phases currently under review that have utilized the Road Cross Sections from Appendix D-1 the Development Agreement do not need to use the updated Road Cross Sections contained in this Amendment. Page 19 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 4 1526807.13 - 366922 -0037 FG:74422323.6 6. A new section 3A is being added to the Development Agreement to read as follows: 3A. McCormick Woods, Phase V Park Development. The Preliminary Plat approval for McCormick Woods, Phase V required the development of a park of approximately three acres in size (Condition 10). McCormick will develop the Park at the location shown on Exhibit B to this Amendment, and the current Park Master Plan is attached as Exhibit C. The current “working name” of the Park is St. Andrew’s Park. McCormick will complete the construction of the St. Andrew’s Park no later than five (5) years from the date of this Amendment, or upon the recording of the next 150 lots within McCormick Woods, whichever occurs first. St. Andrew’s Park will be developed and improved with the following amenities: playground equipment which has been approved by the U.S. Consumer Product Safety Commission (CPSC) in accordance with ASTM F1487, active recreation facilities, open space, and landscaping with native vegetation. The City accepts and approves the Park Master Plan (Exhibit C). McCormick will apply for and obtain the City’s review and approval for the necessary permits to construct St. Andrew’s Park as generally described herein and shown on Exhibit C. The Park will be owned and maintained in perpetuity by McCormick or by the subsequent Homeowner’s Association who will own the Park and be responsible for its maintenance. 7. Section 4.a Extension. The Term of this Agreement is addressed in Section 2 of this Amendment, therefore, the option for a five-year extension addressed in Section 4.a of the Annexation Agreement is no longer appropriate and McCormick waives its right to request such an extension under this Amendment. 8. Critical Areas Vesting and Updating. Critical areas were established under the preliminary plat approval process, including buffers and other standards. McCormick remains vested to these critical area performance standards. The prior wetland categorization will also remain in place. However, since wetlands do migrate and change over time, updated wetland delineation will be required at the time of submittal of a land disturbing activity permit so that the locations of the buffers and wetland boundaries will be consistent with the then-present site conditions. 9. Default. Failure or delay by either Party to perform any term or provision of this Amendment Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Amendment Agreement, the Party alleging such default or breach shall give the other Party not less than thirty (30) days’ notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During this thirty (30) day period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings. After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other Party to this Amendment Agreement may, at its option, institute legal proceedings pursuant to this Amendment Agreement. Page 20 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 5 1526807.13 - 366922 -0037 FG:74422323.6 10. Non-Waiver of Breach. The failure of a Party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be and remain in full force and effect. 11. Conflict. In the event of any conflict between this Amendment Agreement and the Port Orchard Municipal Code, this Agreement shall control. 12. Resolution of Disputes and Governing Law. If any dispute arises between the City and McCormick under any of the provisions of this Amendment Agreement, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. This Amendment Agreement shall be governed by and construed in accordance with the laws of the State of Washington. The non-prevailing party in any action brought to enforce this Amendment Agreement shall pay the other parties' expenses and reasonable attorney's fees. 13. Written Notice. All written communications regarding enforcement or alleged breach of this Amendment Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Unless otherwise specified, any written notice hereunder shall become effective upon the date of both emailing and mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated below: McCORMICK: CITY: Eric Campbell 12332 NE 115th Place Kirkland, WA 98033 eric@mspgroupllc.com Nick Tosti 805 Kirkland Avenue, Suite 200 Kirkland, WA 98033 Rob Putaansuu, Mayor City of Port Orchard 216 Prospect Street Port Orchard WA 98366 rputaansuu@cityofportorchard.us A copy shall also be transmitted to the City Clerk at the above address. 14. Assignment. In the event that McCormick assigns the Credit Agreement in accordance with Section 19 of the Credit Agreement, this Amendment Agreement shall be deemed to be simultaneously assigned to the same assignee. 15. Modification. No waiver, alteration, or modification of any of the provisions of this Amendment Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and McCormick. 16. Severability. The provisions of this Amendment Agreement are declared to be severable. If any provision of this Amendment Agreement is for any reasons held to be invalid or Page 21 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 6 1526807.13 - 366922 -0037 FG:74422323.6 unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. 17. Good Faith and Due Diligence. The Parties agree to perform all obligations under this Amendment Agreement in good faith and with due diligence. 18. Binding on Successors. The rights, obligations, conditions, and interests set forth in this Amendment Agreement shall run with the land and shall inure to the benefit of and be binding upon McCormick, and its heirs, personal representatives, successors. and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement on this day of , 2022. MCCORMICK COMMUNITIES, LLC CITY OF PORT ORCHARD By: By: Its: Its: Mayor APPROVED AS TO FORM: APPROVED AS TO FORM: Patrick Schneider Jennifer S. Robertson Attorney for McCormick Communities Attorney for Port Orchard ATTEST: Brandy Wallace, MMC Port Orchard City Clerk Page 22 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 7 1526807.13 - 366922 -0037 FG:74422323.6 STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu 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 Mayor of Port Orchard to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 20 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Page 23 of 351 Amendment of Development Agreement, McCormick Woods (Phases III, IV, and V) Page 8 1526807.13 - 366922 -0037 FG:74422323.6 STATE OF WASHINGTON ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that Mr. is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the of McCormick Communities, LLC to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 20 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Page 24 of 351 Exhibit A McCormick Woods Page 25 of 351 Exhibit B St. Andrews Park St Andrews Park Page 26 of 351 Page 27 of 351 Est. 1890 12" GRAVEL McCormick Woods Development Agreement Road Sections - Appendix D-1 Ian Smith, PE April 26, 2022 NTS Drawn By: Date: Scale: St. Andrews Drive SW Road Section 1 (Replaced Section 1, 2, 3) 60' ROW 11' DRIVE LANE 11' DRIVE LANE 6' MIN DITCH 3:1 MAX4' SHOULDER (2)10' SEPARATED PATH 4' SHOULDER (1) 9' DITCH 3:1 MAX 12" GRAVEL 12" GRAVEL (1) DRAINAGE CONDITIONS MAY VARY AND INCLUDE PIPED CONVEYANCE ON ONE SIDE OR BOTH SIDES OF THE STREET. ROAD MAY BE CROWNED OR SUPERELEVATED TO REFLECT DRAINAGE CONDITIONS. (2) EDGE OF SEPARATED PATH SHALL BE A MINIMUM OF 10-FT FROM EDGE OF TRAVEL WAY WHEN NO BARRIER IS PRESENT St. Andrews Drive SW Road Section 2 (Replaced Section 1, 2, 3) 60' ROW 11' DRIVE LANE 11' DRIVE LANE 3' MIN BUFFER2' MIN (2)10' SEPARATED PATH GUARDRAIL AS REQUIRED, OR OTHER APPROVED SYSTEM STD C&G (TYP) 1.5'1.5' St. Andrews Drive SW Road Section 3 (Replaced Section 1, 2, 3) 60' ROW 11' DRIVE LANE 11' DRIVE LANE 4' SHOULDER (1) 9' DITCH 3:1 MAX 12" GRAVEL (1) DRAINAGE CONDITIONS MAY VARY AND INCLUDE PIPED CONVEYANCE ON ONE SIDE OR BOTH SIDES OF THE STREET. ROAD MAY BE CROWNED OR SUPERELEVATED TO REFLECT DRAINAGE CONDITIONS. 3' MIN BUFFER (2)10' SEPARATED PATH STD C&G (TYP) 1.5' St. Andrews Drive SW Road Section 4 (Replaced Section 1, 2, 3) 60' ROW 11' DRIVE LANE 11' DRIVE LANE 4' SHOULDER (1) 9' DITCH 3:1 MAX (1) DRAINAGE CONDITIONS MAY VARY AND INCLUDE PIPED CONVEYANCE ON ONE SIDE OR BOTH SIDES OF THE STREET. ROAD MAY BE CROWNED OR SUPERELEVATED TO REFLECT DRAINAGE CONDITIONS. (2)10' SEPARATED PATH 4' SHOULDER 6' MIN BUFFER 3:1 MAX 12" GRAVEL Page 28 of 351 Est. 1890 McCormick Woods Development Agreement Road Sections - Appendix D-1 Ian Smith, PE April 26, 2022 NTS Drawn By: Date: Scale: 5' WALK 4.5' PLANTER 10' DRIVE LANE 0.5' CURB 38' ROW 27' ROW 10' DRIVE LANE7' PARKING Local Road Minor w/ Parking One Side (Replaced Section 6) 11' ROW 10' DRIVE LANE 0.5' CURB 32' ROW 21' ROW 10' DRIVE LANE Local Minor Access w/o Parking (Replaced Section 6) 11' ROW 5' WALK 5.5' PLANTER AT INTERSECTIONS, WHERE PARKING CANNOT BE PROVIDED, TRAVEL WAY SHALL NARROW WITH CURB BULB OUTS TO 20' ROAD SECTION SHALL ONLY BE ALLOWED WHERE LOTS DO NOT FRONT ON BOTH SIDES OF THE RIGHT-OF-WAY AND WHERE APPROVED BY THE CITY ROAD SECTION SHALL ONLY BE ALLOWED WHERE LOTS DO NOT FRONT ON BOTH SIDES OF THE RIGHT-OF-WAY AND WHERE APPROVED BY THE CITY 5' WALK 5.5' PLANTER 10' DRIVE LANE 5.5' PLANTER 5' WALK 42' ROW 21' ROW 21' ROW 10' DRIVE LANE Local Road Minor w/o Parking (Replaced Section 5) 7' PARKING 5' WALK 4.5' PLANTER 10' DRIVE LANE 5.5' PLANTER 5' WALK 47' ROW 27' ROW 21' ROW 10' DRIVE LANE7' PARKING 5' WALK 4.5' PLANTER 10' DRIVE LANE 4.5' PLANTER 5' WALK 54' ROW 27' ROW 27' ROW 10' DRIVE LANE7' PARKING Local Road Minor w/ Parking One Side (Replaced Section 5) Local Road Minor w/ Parking Both Sides (Replaced Section 5) AT INTERSECTIONS, WHERE PARKING CANNOT BE PROVIDED, TRAVEL WAY SHALL NARROW WITH CURB BULB OUTS TO 20'AT INTERSECTIONS, WHERE PARKING CANNOT BE PROVIDED, TRAVEL WAY SHALL NARROW WITH CURB BULB OUTS TO 20' Page 29 of 351 Est. 1890 McCormick Woods Development Agreement Road Sections - Appendix D-1 Ian Smith, PE April 26, 2022 NTS Drawn By: Date: Scale: 20' TRACT WIDTH 18' PAVEMENT 6' PATH 60' ROW 30' ROW 30' ROW 11' DRIVE LANE Private Access Tract ( Replaced Section 7)Hawkstone Ave SW (Replace Section 4) THICKENED EDGE 12" GRAVEL 12" GRAVEL 11' DRIVE LANE 6' PATH 6' PLANTER 6' PLANTER THICKENED EDGE 20' TRACT WIDTH 10' PAVEMENT Alley (Added Section) 10' PAVEMENT Page 30 of 351 Page 31 of 351 Page 32 of 351 Page 33 of 351 Page 34 of 351 Page 35 of 351 Page 36 of 351 Page 37 of 351 Page 38 of 351 Page 39 of 351 Page 40 of 351 Page 41 of 351 Page 42 of 351 Page 43 of 351 Page 44 of 351 Page 45 of 351 Page 46 of 351 Page 47 of 351 Page 48 of 351 Page 49 of 351 Page 50 of 351 Page 51 of 351 Page 52 of 351 Page 53 of 351 Page 54 of 351 Page 55 of 351 Page 56 of 351 Page 57 of 351 Page 58 of 351 Page 59 of 351 Page 60 of 351 Page 61 of 351 Page 62 of 351 Page 63 of 351 Page 64 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City Council is asked to consider the adoption of proposed chapters POMC 20.70 Wireless Communication Facilities, POMC 20.72 Small Cell Wireless Communication Facilities and amend POMC 20.39.270. The purpose of the codes is to regulate the placement, construction, and modification of wireless communication facilities and small cell wireless telecommunication facilities, to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in Port Orchard. Proposed chapters POMC 20.70 and POMC 20.72 include standards for the design and aesthetics associated with these facilities. POMC 20.39.270 is to be amended to create consistency with existing code language and the proposed language in POMC 20.70 and POMC 20.72. The City of Port Orchard SEPA Responsible Official issued a Determination of Nonsignificance (DNS) on April 1, 2022. The City did not receive written comments in response to the DNS and the DNS was not appealed. Proper notice was provided to the Washington State Department of Commerce regarding the intent to adopt the regulations. Notice of Hearing for the Planning Commission consideration of the draft code was provided on March 21, 2022 consistent with the requirements of POMC 20.25. The Department of Community Development received comments regarding the draft Ordinance from wireless communication providers and incorporated some of the suggested changes into the draft code prior to the April 5, 2022 Planning Commission public hearing. On April 5, 2022 the Planning Commission held a public hearing to take public testimony and subsequently recommended approval of the proposed ordinances to the City Council, but asked staff to continue working with the providers to refine the draft language prior to City Council action. The code before the City Council is the result of a responsive effort with the providers and staff to provide a code which provides a predictable permitting process that meets the needs of the providers while considering the impacts wireless facilities may have on the community. However, based on public comment submitted by Wireless Policy Group (WPG) and received subsequent to the April 5, 2002 Planning Commission hearing, the City Council may want to consider the following issues: 1. Utility Pole Height for Collocations: Draft POMC 20.70.120.1 proposes a maximum utility pole height of 50 feet. WPG suggests increasing the maximum height an additional 25 feet indicating that 50 feet Page 65 of 351 Public Hearing 6B Page 2 of 2 is “typically not enough to accommodate both a carrier’s antennas at the elevation needed for service and the required vertical separation from electrical wires.” 2. Feasibility of Concealed Building-Mounted Antennas: WPG indicates in draft POMC 20.70.100.2. that the screening material must be transparent in order to effectively operate the required antennas and requiring screening to be the same material as the building prevents the use of the use of the antenna. Staff modified the language to include “complementary materials” to address this issue. Additionally, WPG seeks clarification on to draft POMC 20.70.100.1 regarding a required rooftop setback related to roof-top mounted equipment. Staff considers this a non-issue as the setbacks required for rooftop mechanical equipment and other rooftop features are addressed ass permissible height encroachments in POMC 20.40.050(2) and the required setbacks provide adequate mitigation for such features. 3. Eligible Facilities Requests: WPG indicates draft POMC 20.70.200(D) is inconsistent with federal law where conditions of approval requiring all performance standards be satisfied in the event the City does not issue a Decision on the request in a timely manner. Staff modified draft POMC 20.70.200(D) to require “compliance with applicable provisions of building, structural, electrical, and safety codes and noise regulations” as standard conditions of approval in the event a Decision is not issued in a timely manner. 4. Height Waiver: WPG request clarifying language in regard to height waiver requests noting the 1996 Telecom Act and the carrier’s service objectives. (see page 19 of the redline comments from Meridee Pabst) Relationship to Comprehensive Plan: Implementation of the adopted City of Port Orchard Comprehensive Plan Land Use Element. Recommendation: Staff recommends the City Council hold a public hearing on an Ordinance adopting POMC 20.70 Wireless Communication Facilities, and an Ordinance adopting POMC 20.72 Small Cell Wireless Communication Facilities and amending POMC 20.39.270. Motion for consideration: N/A Attachments: Written Public Comments. The following items may be found attached to the staff reports for the corresponding business items (Business Items 7A and 7B) on the agenda for May 10, 2022: 1. Ordinance adopting POMC 20.70 Wireless Communication Facilities 2. Ordinance adopting POMC 20.72 Small Cell Wireless Communication Facilities and amending POMC 20.39.270 Page 66 of 351 AT&T Comments – 04-29-2022 1 1489606.6 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 CHAPTER 20.70 WIRELESS COMMUNICATION FACILITIES Sections: 20.70.010 Purpose 20.70.020 Authority and Application 20.70.030 Exemptions 20.70.040 Permits Required 20.70.050 Types of Permits—Priority—Restrictions 20.70.060 New Towers 20.70.070 General Requirements 20.70.080 Electrical Transmission Tower Co-Location-Specific Development Standards 20.70.090 Adding Antennas to Existing WCF Tower-Specific Development Standards 20.70.100 Concealed Building Mounted Development Requirements 20.70.110 Non-concealed Building Mounted Development Requirements 20.70.120 Utility Pole Co-location 20.70.130 Towers-Specific Development Standards 20.70.140 Request to Use Non-concealed Building Attached in Lieu of a Concealed Building Attached 20.70.150 Landscaping/Screening 20.70.160 Zoning Setback Exceptions 20.70.170 Height Waivers 20.70.190 Removal of Abandoned Wireless Communication Facilities 20.70.200 Standards for Eligible Facilities Modifications 20.70.210 Expiration of Wireless Facility Permits 20.70.010 Purpose A. The purpose of this Chapter is to regulate the placement, construction and modification of wireless communication facilities, in order to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the City. The purpose of this Chapter will be achieved through adherence to the following objectives: 1. Establish clear and nondiscriminatory local regulations concerning wireless telecommunications providers and services that are consistent with Federal and State laws and regulations pertaining to telecommunications providers; 2. Protect residential areas and land uses from potential adverse impacts that wireless communication facilities might create, including but not limited to impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors, and health Page 67 of 351 AT&T Comments – 04-29-2022 2 1489606.6 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 and safety of persons and property; 3. Encourage providers of wireless communication facilities to locate these facilities, to the extent possible, in areas where the adverse impact on the community is minimal; 4. Encourage the location of wireless communication facilities in nonresidential areas and allow wireless communication facilities in residential areas only when necessary, to meet functional requirements of the telecommunications industry; 5. Minimize the total number of wireless communication facilities in residential areas; 6. Require cooperation between competitors and, as a primary option, joint use of new and existing towers, tower sites and suitable structures to the greatest extent possible, in order to reduce cumulative negative impact upon the City; 7. Allow wireless communication companies to use City property (i.e., City Hall, Community Center, utilities property, parks, etc.) for the placement of wireless facilities, where consistent with other public needs, as a means to generate revenue for the City; 8. Ensure wireless communication facilities are configured in a way that minimizes the adverse visual impact of the wireless communication facilities, as viewed from different vantage points, through careful design, landscape screening, minimal impact siting options and camouflaging techniques, and through assessment of technology, current location options, siting, future available locations, innovative siting techniques and siting possibilities beyond the jurisdictional boundaries of the City; 9. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently; 10. Provide for the removal of wireless communication facilities that are abandoned or no longer inspected for safety concerns and Building Code compliance, and provide a mechanism for the City to cause these abandoned wireless communication facilities to be removed, to protect the residents from imminent harm and danger; 11. Avoid potential damage to adjacent properties from tower failure, through engineering, careful siting, height limits, and maintenance of wireless communication facilities; and 12. Provide a means for public input on major wireless communications facility placement, construction, and modification. B. In furtherance of these objectives, the City shall give due consideration to the Comprehensive Land Use Plan, Land Use and Development Regulations, existing land uses, and environmentally sensitive areas in approving sites for the location of communication towers and antennas. C. These objectives were developed to protect the public health, safety, and welfare, to protect property values, and to minimize visual impact, while furthering the development of enhanced telecommunication services in the City. These objectives were designed to comply with the Telecommunications Act of 1996. The provisions of this Chapter are not intended to Page 68 of 351 AT&T Comments – 04-29-2022 3 1489606.6 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 and shall not be interpreted to prohibit or to have the effect of prohibiting personal wireless services. This Chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services. Page 69 of 351 AT&T Comments – 04-29-2022 4 1489606.6 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 D. To the extent that any provision of this Chapter is inconsistent or conflicts with any other City ordinance, this Chapter shall control. Otherwise, this Chapter shall be construed consistently with the other provisions and regulations of the City. E. In reviewing any application to place, construct or modify wireless communication facilities, the City shall act within a reasonable period of time after an application for a permit is duly filed, taking into account the nature and scope of the application. Any decision to deny an application shall be in writing, supported by substantial evidence contained in a written record. The City shall approve, approve with conditions, or deny the application in accordance with Title 20 of the Port Orchard Municipal Code, this Chapter, the adopted Port Orchard Comprehensive Plan, and other applicable ordinances and regulations. 20.70.020 Authority and Application. The provisions of this Chapter shall apply to the placement, construction, or modification of all wireless communication facilities, except as specifically exempted in POMC Section 20.70.030. 20.70.030 Exemptions. The provisions of this Chapter shall not apply to the following: 1. Wireless communication facilities permits are not required for subparagraphs 1.a through 1.e of this section; however, other permits, such as a grading permit, street excavation permit, traffic management plan, or building permit may be required: a. Routine maintenance and repair of wireless communication facilities when no traffic impacts will occur. This shall not include changes in height or dimensions of towers or buildings; provided that the wireless communication facility received approval from the City of Port Orchard or Kitsap County for the original placement, construction, or subsequent modification. When traffic impacts will occur, a traffic control plan approved by the City is required prior to performing the work. b. Changing of antennas on wireless communication facilities is exempt from wireless facilities permits, provided the total area of the new antennas and support structure is not increased more than ten percent (10%) of the previous area or if the area is reduced. c. Changing or adding additional antennas within a previously permitted concealed building-mounted installation is exempt provided there is no visible change from the outside. d. Bird exclusionary devices may be added to towers and are not subject to height limitations. e. Additional ground equipment may be placed within an approved equipment enclosure, provided the height of the equipment does not extend above the screening fence. 2. An antenna that is designed to receive or send direct broadcast satellite service and/or broadband signals, or other means for providing internet service including direct-to- Page 70 of 351 AT&T Comments – 04-29-2022 5 1489606.6 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 home satellite services, and that is one (1) meter or less in diameter or diagonal measurement, and when the antenna is attached to the residence or business that is utilizing the service. Page 71 of 351 AT&T Comments – 04-29-2022 6 1489606.6 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 3. An antenna that is designed to receive video programming services via multipoint distribution services, including multi-channel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one (1) meter or less in diameter or diagonal measurement. 4. An antenna that is designed to receive television broadcast signals. 5. Antennas for the receiving and sending of amateur radio devices or HAM radios, provided that the antennas meet the height requirements of the applicable zoning district, and are owned and operated by a Federally-licensed amateur radio station operator or are used exclusively for receive-only antennas. In order to reasonably accommodate licensed amateur radio operators as required by Federal Code of Regulations, 47 CFR Part 97, as amended, and Order and Opinion (PRB-1) of the Federal Communication Commission of September 1985, and RCW 35A.21.260, a licensed amateur radio operator may locate a tower not to exceed the height requirements of the applicable zoning district, provided the following requirements are met for such towers located in a residentially-zoned district: a. The tower and any antennas located thereon shall not have any lights of any kind on it and shall not be illuminated either directly or indirectly by any artificial means; b. The color of the tower and any antennas located thereon must all be the same and such that it blends into the sky, to the extent allowed under requirements set forth by the Federal Aviation Administration; c. No advertising logo, trademark, figurine or other similar marking or lettering shall be placed on the tower or any wireless communication facilities mounted or otherwise attached thereto or any building used in conjunction therewith; d. The tower shall be located a distance equal to or greater than its height from any existing residential structure located on adjacent parcels of property, including any attached accessory structures; e. A tower must be at least three-quarters of its height from any property line on the parcel of property on which it is located, unless a licensed engineer certifies that the tower will not collapse or that it is designed in such a way that, in the event of collapse, it falls within itself, and in that event, it must be located at least one-third of its height from any property line; f. No signs shall be used in conjunction with the tower, except for one sign not larger than 8½" high and 11" wide and as required by Federal regulations; g. Towers shall not be leased or rented to commercial users, and shall not otherwise be used for commercial purposes; and h. All towers must meet all applicable State and Federal statutes, rules, and regulations, including obtaining a building permit from the City, if necessary. Page 72 of 351 AT&T Comments – 04-29-2022 7 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 6. Emergency communications equipment during a declared public emergency, when the equipment is owned and operated by an appropriate public entity. 7. Wireless Communications Facilities (“WCFs”) used for temporary emergency communications in the event of a disaster, or emergency preparedness, and for any other public health or safety purpose, including, by way of illustration and not limitation, any communications systems utilized by first responders such as police or fire. 8. Any wireless internet facility that is owned and operated by a government entity. 9. Antennas and related equipment no more than 3 feet in height that are being stored, shipped or displayed for sale. 10. Radar systems for military and civilian communication and navigation. 11. Small wireless facilities as defined by POMC Section 20.29.030 and regulated by POMC Chapter 20.72. 20.70.040 Permits Required. A. No person may place, construct, or modify a wireless communication facility subject to this Chapter without first having in place a permit issued in accordance with this Chapter. Except as otherwise provided herein, the requirements of this Chapter are in addition to the applicable requirements of POMC Title 20. B. Any application submitted pursuant to this Chapter shall be reviewed and evaluated by the Director for all projects located on public or private property. The Director of Public Works or his/her designee shall review all proposed wireless communication facilities that are totally within City right-of-way. If a project is both on private or public property and City right-of-way, the Community Development Director shall review the application. Regardless of whether the Community Development Director or the Director of Public Works is reviewing the application, all applications will be reviewed and evaluated pursuant to the provisions of this Chapter. C. The applicant is responsible for obtaining all other permits from any other appropriate governing body (i.e., Washington State Department of Labor and Industries, Federal Aviation Administration, etc.). For purposes of this chapter, the “applicant” is inclusive of the party who applies for permits and the party or parties will own, operate, or manage the wireless communication facility. D. This Chapter provides guidelines for the placement, construction, and modification of wireless communication facilities, which are not otherwise exempt as set forth in POMC Section 20.70.030. E. No provision of this Chapter shall be interpreted to allow the installation of a wireless communication facility to reduce the minimum parking or landscaping required on a site. F. Wireless communication facilities that are governed under this Chapter shall not be eligible for variances under POMC Chapter 20.28. Any request to deviate from this Chapter shall be based on the exceptions or waivers set forth in this Chapter. G. Third Party Expert Review. Applicants use various methodologies and analyses, Commented [MP1]: To direct the reader to the Page 73 of 351 AT&T Comments – 04-29-2022 8 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 including geographically-based computer software, to determine the specific technical parameters of the services to be provided utilizing the proposed wireless communication facilities, such as expected coverage area, antenna configuration, capacity, and topographic constraints that affect signal paths. In certain instances, a third party expert may be needed to review the engineering and technical data submitted by an applicant for a permit. The City may at its discretion require an engineering and technical review as part of a permitting process. The costs of the technical review shall be borne by the applicant. H. The selection of the third-party expert may be by mutual agreement between the applicant and the City, or at the discretion of the City, with a provision for the applicant and beneficially interested parties to comment on the proposed expert and review his/her qualifications. The third party expert review is intended to address interference and public safety issues and be a site-specific review of engineering and technical aspects of the proposed wireless communication facilities and/or a review of the applicants' methodology and equipment used, and is not intended to be a subjective review of the site which was selected by an applicant. Based on the results of the expert review, the City may require changes to the application. The expert review shall address the following: 1. The accuracy and completeness of submissions; 2. The applicability of analysis techniques and methodologies; 3. The validity of conclusions reached; 4. The viability of other sites in the City for the use intended by the applicant; and 5. Any specific engineering or technical issues designated by the City. I. No alterations or changes shall be made to plans approved by the Director, Director of Public Works, or Hearing Examiner without approval from the City. Minor changes which do not change the overall project may be approved by the Community Development Director as a minor modification. 20.70.050 Types of Permits-Priority--Restrictions. A. Applications will be reviewed based on the type of wireless communication facilities requested to be permitted. Each wireless communication facility requires the appropriate type of project permit review, as shown in Table A. In the event of uncertainty on the type of a wireless facility, the Community Development Director shall have the authority to determine how a proposed facility is incorporated into Table A. TABLE A Type of Permit Required, Based on Type of Zoning(1) Commented [MP2]: This table is not entirely consistent with the Land Use Table in POMC 20.39.040: 1. The types of facilities listed in the Table in POMC 20.39.040 are limited to only small wireless facilities and towers (and amateur towers). While this table lists collocations on WCFs and attachments to other existing/replacement structures, the Table in POMC 20.39.040 does not. 2. The table in POMC 20.39.040 does not list towers as a Page 74 of 351 AT&T Comments – 04-29-2022 9 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 Public existing or replacement location; Transmission tower co-location; Attachment to water tower, ballfield lights, or similar Type 2 Type 1 height extension adjustment request beyond the limitations in the Spectrum Act; height waiver under POMC (1) Zoning for any private/public property or right-of-way: Residential – R1, R2, R3, R4, R5, R6, RMU. Commercial and Public– NMU, BPMU, CMU, DMU, GMU, CC, CH, IF. PF, PR, CI, Industrial – LI, HI. (2) Provided the height of the tower or utility pole does not increase and the square footage of the enclosure area does not increase beyond the limits set forth in Section 6409 of the Spectrum Act. (3) An applicant may request to install a non-concealed building attached facility, under POMC Section 20.70.140. B. The priorities for the type of wireless communication facility shall be based upon their Commented [MP3]: Commented [MP4]: preference below; AT&T suggests it be clearly listed in this Table A and that the list of existing structures that may support a WCF be inclusive of other similar structures. We note that the list in the siting preferences in Subsection (C)(1) is not exclusive, but rather is illustrative, and we suggest this table match that approach. Water towers and ballfield/stadium lights are commonly used support Commented [MP5]: For consistency with other Commented [MP6]: Does Port Orchard zone much of its ROW? Compare with POMC 20.31.030 (Interpretation – Page 75 of 351 AT&T Comments – 04-29-2022 10 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 placement in Table A; the most desirable location for facilities are located toward the top of the table and least-desirable location for facilities are located toward the bottom of the table. Any application for a wireless communication facility must follow the hierarchy of Table A. For example, an applicant must demonstrate by engineering evidence that using a transmission tower co-location is not possible before moving to a utility pole replacement for co-location, and so forth, with the last possible siting option being a new tower or waiver request. C. The City's preferences for locating new wireless communication facilities are as follows: 1. Place antennas on existing or replacement structures, such as buildings, towers, water towers, ballfield lights, or electrical transmission towers. 2. Place wireless communication facilities in non- residentially zoned districts and non- residential property. 3. Place antennas and towers on public property and on appropriate rights-of-way if practical, provided that no obligation is created herein for the City to allow the use of City property or public right-of-way for this purpose. 4. City Property/Public Rights-of-Way. The placement of personal wireless communication facilities on City-owned property and public rights-of-way will be subject to other applicable sections of the Port Orchard Municipal Code and review by other departments (i.e., Public Works, Parks and Recreation, etc.) and may require a facilities lease. 5. Wireless communication facilities shall not be permitted on property designated as landmark or as part of a historic district. D. Applicants shall submit all of the information required pursuant to POMC Section 20.24.030 and the following: 1. Type 1: Applicant shall submit: a. A completed application form provided by the Department of Community Development. b. Four sets of plans prepared by a design professional. The plans shall include a vicinity map, site map, architectural elevations, method of attachment, proposed screening, location of proposed antennas, and all other information which accurately depicts the proposed project. Minimum size is 8.5'' by 11". Plans shall be no greater than 24" x 36". a. If the proposal is submitted as an Eligible Facilities Request: • A letter from the applicant outlining the proposed project and an evaluation from the applicant with regard to the City's Code requirements and whether the proposal qualifies for review under Section 6409 of the Spectrum Act. • Information sufficient to determine whether a proposed facilities modification per POMC Section 20.70.200 would be a substantial change to an existing eligible support structure. b. Sensitive Area studies and proposed mitigation (if required). c. If an outdoor generator is proposed, a report prepared by an acoustical engineer Commented [MP7]: separate category for transmission tower collocations in Commented [MP8]: Commented [MP9]: Clarification that these items are Page 76 of 351 AT&T Comments – 04-29-2022 11 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 demonstrating compliance with Chapter 173-60 WAC and POMC 9.24.050. d. SEPA Application (if required). 2. Type 2: Applicant shall submit all information required for a Type 1 application, plus the following: a. Four sets of photo simulations that depict the existing and proposed view of the proposed facility. b. Materials board for the screening material. c. If landscaping is proposed, four sets of a landscaping plan prepared by a Washington State-licensed landscape architect. d. Letter from a radio frequency engineer that demonstrates that the facility meets Federal requirements for allowed emissions. e. If the facility is located within a residential zone, a report from a radio frequency engineer explaining the need for the proposed wireless communication facility. Additionally, the applicant shall provide detailed discussion on why the wireless communication facility cannot be located within a commercial or industrial zone. 3. Type 3: The applicant shall submit all the information required for Type 1 and Type 2 applications, plus the following: a. All information required for new towers under POMC Section 20.70.060. b. The radio frequency engineer report shall include a discussion of the information required under POMC Section 20.70.060. c. Provisions for mailing labels for all property owners and tenants/residents within 500 feet of the subject property. d. Engineering plans for the proposed tower. e. A vicinity map depicting the proposed extent of the service area. f. A graphic simulation showing the appearance of the proposed tower and ancillary structures and ancillary facilities from five points within the impacted vicinity. Such points are to be mutually agreed upon by the Director of Community Development and applicant. All plans and photo simulations shall include the maximum build-out of the proposed facility to the extent such information is known by the applicant. g. Evidence that the tower has been designed to meet the minimum structural standards for wireless communication facilities for a minimum of three providers of voice, video or data transmission services, including the applicant, and including a description of the number and types of antennas the tower can accommodate, to the extent known by the applicant. 20.70.060 New Towers. A. New towers are not permitted within the City unless the Hearing Examiner finds that the applicant has demonstrated by a preponderance of the evidence that: 1. Alternates: No existing tower or structure, or other feasible site not requiring a new tower in the City, can accommodate the applicant's proposed wireless communication facility; Page 77 of 351 AT&T Comments – 04-29-2022 12 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 and 2. Least intrusive: The proposed new wireless communication facility is designed and located in a manner that is, in consideration of the values, objectives and regulations set forth in this chapter, POMC Title 20, and the Comprehensive Land Use Plan, the least intrusive upon the surrounding area. B. The Hearing Examiner shall be the reviewing body on the application to construct a new tower and shall determine whether or not each of the above requirements is met. Examples of evidence demonstrating the foregoing requirements include, but are not limited to, the following: 1. That the tower height is the minimum necessary in order to achieve the coverage objective; 2. That no available existing towers or structures or alternative sites are located within the geographic area required to meet the applicant's engineering requirements to meet its coverage objective (regardless of the geographical boundaries of the City); 3. That available existing towers or structures are not of a sufficient height or could not feasibly be extended to a sufficient height to meet the applicant's engineering requirements to meet its coverage objective; 4. That available existing structures or towers do not have sufficient structural strength to support the applicant's proposed antenna and ancillary facilities; 5. That the applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing structures would cause interference with the applicant's proposed antenna; 6. That the fees, costs, or contractual provisions required by the owner or operator in order to share an existing tower or structure, or to locate at an alternative site, or to adapt an existing tower or structure or alternative site for sharing, are unreasonable. Costs exceeding new tower construction by 25% are presumed to be unreasonable; and/or the applicant demonstrates other limiting factors that render existing towers and structures or other sites unsuitable or unavailable. All radiofrequency (RF) engineering evidence must be provided and certified by a RF engineer and clearly demonstrate the evidence required. Any required structural engineering evidence shall be provided and certified by a Washington registered and qualified professional engineer. C. The Hearing Examiner, after holding a public hearing, shall either approve, approve with conditions, or deny the application, or remand the application back to staff for further investigation in a manner consistent with the Hearing Examiner order. 20.70.070 General Requirements. Page 78 of 351 AT&T Comments – 04-29-2022 13 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 The following shall apply to all wireless communication facilities regardless of the type of facility: 1. Noise: Any facility that requires a generator or other device which will create noise must demonstrate compliance with Chapter 173-60 WAC and POMC 9.24.050. A noise report, prepared by an acoustical engineer, shall be submitted with any application to construct and operate a wireless communication facility that will have a generator or similar device. The City may require that the report be reviewed by a third party expert at the expense of the applicant. 2. Signage: Only safety signs or those mandated by other government entities may be located on wireless communication facilities. No other types of signs are permitted on wireless communication facilities. 3. Parking: Any application must demonstrate that there is sufficient space for temporary parking for regular maintenance of the proposed facility. 4. Finish: A tower shall either maintain a galvanized steel finish or, subject to any applicable standards of the FCC, be painted a neutral color so as to reduce its visual obtrusiveness. 5. Design: The design of all buildings and ancillary structures shall use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natural setting and built environment. 6. Color: All antennas and ancillary facilities located on buildings or structures other than towers shall be of a neutral color that is identical to or closely compatible with the color of the supporting structure so as to make the antenna and ancillary facilities as visually unobtrusive as possible. 7. Lighting: Towers shall not be artificially lighted unless required by the FCC or other applicable authority. If lighting is required, the reviewing authority shall review the lighting alternatives and approve the design that would cause the least disturbance to the surrounding areas. No strobe lighting of any type is permitted on any tower. 8. Advertising: No advertising is permitted at wireless communication facility sites or on any ancillary structure or facilities equipment compound. 20.70.080 Specific Development Standards for Electrical Transmission Tower Co-Location. The following requirements shall apply: 1. Height: There is no height requirement for antennas that are located on electrical transmission towers. 2. Antenna aesthetics: There are no restrictions on the type of antennas located on the electrical transmission tower. The antennas must be painted to match the color of the electrical transmission tower. 3. Antenna intensity: There is no limit on the number of antennas that may be located on an electrical transmission tower structure. Page 79 of 351 AT&T Comments – 04-29-2022 14 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 4. Feed lines and coaxial cables: Feed lines and coaxial cables shall be attached to one of the legs of the electrical transmission tower. The feed lines and cables must be painted to match the color of the electrical transmission tower. 5. Cabinet equipment: Cabinet equipment shall be located directly under the electrical transmission tower where the antennas are located or a concealed location. The wireless communication equipment compound shall be fenced; the fence shall have a minimum height of six (6) feet and a maximum height of eight (8) feet. The fence shall include slats, wood panels, or other materials to screen the equipment from view. Barbed wire is not allowed. 6. Setbacks: Since the facility will be located on an existing electrical transmission tower, setbacks shall not apply. 20.70.090 Specific Development Standards for Adding Antennas to Existing WCF Tower. The following requirements shall apply: 1. Height: The height must not exceed what was approved under the original application to construct the tower. If the height shall exceed what was originally approved, approval as a Type 2 decision is required, provided, however, that increases up to the limitation set forth in Section 6409 of the Spectrum Act shall be allowed. 2. Antenna aesthetics: Antennas shall be painted to match the color scheme of the tower. 3. Antenna intensity: There is no limit on the number of antennas that may be located on an existing tower. 4. Feed lines and coaxial cables: Feed lines and coaxial cables shall be located within the tower. Any exposed feed lines or coaxial cables (such as when extended out of the tower to connect to the antennas) must match the tower. 5. Cabinet equipment: A new cabinet shall be located within the equipment enclosure that was approved as part of the original application. If the applicant wishes to expand the equipment enclosure from what was approved by the City or County under the previous application beyond the increase limitations set forth in Section 64.09 of the Spectrum Act, the applicant shall seek a wireless communication facility (Type 2) application for only the equipment enclosure increase. 6. Setbacks: Setbacks shall not apply when an applicant installs new antennas on an existing tower and uses an existing equipment enclosure. If the equipment enclosure is increased, it must meet setbacks. 20.70.100 Concealed Building Mounted Development Requirements. The following requirements shall apply: Page 80 of 351 AT&T Comments – 04-29-2022 15 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1. Height: The proposed facility must meet the height requirement of the applicable zoning category including, as applicable, allowed mechanical equipment encroachments consistent with POMC 20.40.050(2)(c); provided, that the facility need not be set 10 feet back from the edge of the roof if its concealment under this subsection makes such setback infeasible. The antennas can qualify under POMC Section 20.127.360, "Roof- Mounted Mechanical Equipment", if the antennas are located in a church spire, chimney or fake chimney, elevator tower, mechanical equipment room, or other similar rooftop appurtenances usually required to be placed on a roof and not intended for human occupancy. Stand-alone antennas shall not qualify as rooftop appurtenances. 2. Antennas aesthetics: The antennas must be concealed from view by blending with the architectural style of the building. This could include steeple-like structures and parapet walls. The screening must be made out of the same material and be the same color as the building or otherwise compatible with existing building and building-mounted equipment. If not screened, aAntennas shall be painted to match the color scheme of the building(s). 3. Feed lines and coaxial cables: Feed lines and cables should be located below the parapet of the rooftop. 4. Cabinet equipment: If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then the City's first preference is to locate the equipment on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six (6) foot-tall fence, and materials shall be used to screen the equipment from view. Barbed wire may not be used. 5. Setbacks: The proposed wireless communication facilities facility must meet the setback of the applicable zoning category where the facility is to be located. 20.70.110 Non-concealed Building Mounted Development Requirements. The following requirements shall apply: 1. Height: The proposed facility must meet the height requirements of the applicable zoning category. If the building where the facility is located is at or above the maximum height requirements, the antennas are permitted to extend a maximum of three (3) feet above the existing roof line. Non-concealed building mounted facilities shall not qualify as "Roof-Mounted Mechanical Equipment" under POMC Section 20.127.360. 2. Antenna aesthetics: The first preference for any proposed facility is to utilize flush- mounted antennas. Nonflush mounted antennas may be used when their visual impact will be negated by the scale of the antennas to the building. "Shrouds" are not required unless they provide a better visual appearance than exposed antennas. Antennas shall be painted to match Commented [MP10]: methods here – such as church spires and chimneys – are Page 81 of 351 AT&T Comments – 04-29-2022 16 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 the color scheme of the building(s). 3. Feed lines and coaxial cables: Feed lines and cables should be located below the parapet of the rooftop. If the feed lines and cables must be visible, they must match the color scheme of the building(s). 4. Cabinet equipment: If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then it must be located on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six (6) foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire may not be used. 20.70.120 Utility Pole Co-location. The following requirements shall apply: 1. Height: The height of a utility pole co-location is limited to 215 feet above the replaced utility pole, and may be not greater than 650 feet in height in residential zones. Within all other zones, the height of the utility pole is limited to 50 feet or the minimum height standards of the underlying zoning, whichever is greater. 2. Replacement pole: The replaced utility pole must be used by the owner of the utility pole to support its utility lines (phone lines or electric). A replaced utility pole cannot be used to provide secondary functions to utility poles in the area. 3. Pole aesthetics: The replaced utility pole must have the color and general appearance of the adjacent utility poles. 4. Pedestrian impact: The proposal shall not result in a significant change or cause degradation in the pedestrian environment. For replacement poles, the proposal shall be consistent with the City’s adopted public works engineering standards and specifications such that the ability to make future pedestrian improvements shall not be impacted or future relocation must be otherwise addressed in the applicable franchise agreement. In addition, the location of the replacement pole shall be selected to reduce impacts to the current and future pedestrian environment. 5. Cabinet equipment: Unless approved by the Director of Public Works, all cabinet equipment and the equipment enclosure must be placed outside of City right-of-way. If located on a parcel that contains a building, the equipment enclosure must be located next to the building, or where it has the least visual impact on surrounding properties. The cabinet equipment must be screened from view. The screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six (6) foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire is not allowed. Commented [MP11]: These suggested changes make this form of deployment more feasible, increasing the likelihood that a carrier can utilize an existing/replacement structure and avoid erecting a new tower. This approach is consistent with the City’s stated siting preferences above. Importantly related to feasibility, in addition to the WCF’s antennas needing height to operate effectively, electrical safety standards require certain vertical clearances from electric Commented [MP12]: the most intense industrial and commercial zones, have a maximum building height of 35 feet, which would limit all make this type of deployment largely infeasible. If a cap on height is retained for any zones, this should be “maximum” Page 82 of 351 AT&T Comments – 04-29-2022 17 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 6. Setbacks: Any portion of the wireless communication facilities located within City right-of-way is not required to meet setbacks. The City will evaluate setbacks on private property under the setback requirements set forth in POMC Section 20.70.170. 20.70.130 Towers-Specific Development Standards. The following requirements shall apply: 1. Height: Any proposed tower with antennas shall not exceed 70 feet without a height waiver as described in POMC 20.70.170. Bird exclusionary devices are not subject to height limitations. 2. Antenna and tower aesthetics: The applicant shall utilize a wireless communication concealed facility and shall use such methods as to help the tower to blend with the natural and built environment. The choice of concealing the wireless communication facility must be consistent with the overall use of the site. For example, having a tower appear like a flagpole would not be consistent if there are no buildings on the site. If a flag or other wind device is attached to the pole, it must be appropriate in scale to the size and diameter of the tower. 3. Setbacks: A facility that is used for wireless communications, must be set back from the all property lines the greater of: a. Fifty (50) feet; or b. If the tower is to be constructed with breakpoint technology, oOne hundred ten percent of the height from the highest engineered break point to the top of structure, as certified by a professional engineer. For example, a 100 foot pole with no breakpoint would require a 110 foot setback. If the breakpoint is located at the 50 foot level, then the setback would be 55 feet. For purposes of this subsection, “breakpoint technology” shall mean towers designed with breakpoint technology engineer points on the top portion of the tower to fold over onto itself in extreme stress such as earthquake and extraordinary high winds, rather than fall its full length from the base. However, if an exception is granted under POMC Section 20.70.170 with regard to height, the setback from all property lines of the proposed wireless communication facilities will increase two (2) feet for every one (1) foot in excess of the maximum permitted height in the zoning districtpermitted by Subsection (1) of this Section. 4. Color: The color of the tower shall be based on the surrounding land uses. 5. Feed lines and coaxial cables: All feed lines and cables must be located within the tower. Feed lines and cables connecting the tower to the equipment enclosure, which are not located within the wireless communication facility equipment compound, must be located underground. 20.70.140 Request to Use Non-concealed Building Attached in Lieu of a Concealed Building Attached. Commented [MP13]: For clarity. Commented [MP14]: Because this definition is applicable to setbacks for new towers rather than EFRs, AT&T suggests Commented [MP15]: Page 83 of 351 AT&T Comments – 04-29-2022 18 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 The use of concealed building facilities shall have first priority in all residential and commercial zones. However, an applicant may request to construct a non-concealed building attached wireless communication facility in lieu of a concealed wireless communication facility. The following criteria shall be used: 1. Due to the size of the building and the proposed location of the antennas, the visual impact of the exposed antennas will be minimal in relation to the building. 2. Cables are concealed from view and any visible cables are reduced in visibility by sheathing or painting to match the building where they are located. 3. Cabinet equipment is adequately screened from view. 4. Due to the style or design of the building, the use of a concealed facility would reduce the visual appearance of the building. 5. The building where the antennas are located is at least 200 feet from any body of water or waterway that is designated as either shoreline or critical area. 20.70.150 Landscaping/Screening. A. The visual impacts of wireless communication facilities shall be mitigated and softened through landscaping or other screening materials at the base of the tower, facility equipment compound, equipment enclosures, and ancillary structures, with the exception of wireless communication facilities located on transmission towers, or if the antenna is mounted flush on an existing building or camouflaged as part of the building and other equipment is housed inside an existing structure. The Community Development Director, Director of Public Works or Hearing Examiner, as appropriate, may reduce or waive the standards for those sides of the wireless communication facility that are not in public view, when a combination of existing vegetation, topography, walls, decorative fences or other features achieve the same degree of screening as the required landscaping; in locations where the visual impact of the tower would be minimal; and in those locations where large wooded lots and natural growth around the property perimeter may be a sufficient buffer, provided that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping. B. Landscaping shall be installed on the outside of fences of equipment compounds. Existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute for or as a supplement to landscaping or screening requirements, provided that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping. The following requirements apply: 1. Type A landscaping consistent with the requirements of POMC 20.128.060 (A) shall be placed around the perimeter of the equipment cabinet enclosurecompound, except that a maximum ten (10)-foot portion of the fence may remain without landscaping in order to provide access to the enclosurecompound. 2. The landscaping area shall be a minimum of five ten (510) feet in width around the Commented [MP16]: For clarification. These standards are applicable to landscaping around fenced equipment Page 84 of 351 AT&T Comments – 04-29-2022 19 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 perimeter of the enclosureequipment compound. 3. The applicant shall utilize evergreens that shall be a minimum of six (6) feet tall at the time of planting. 4. Applicant shall utilize irrigation or an approved maintenance schedule that will ensure that the plantings are established after two years from the date of planting. C. The applicant shall replace any unhealthy or dead plant materials in conformance with the approved landscaping development proposal and shall maintain all landscape materials for the life of the facility. In the event that landscaping is not maintained at the required level, the Community Development Director, after giving thirty (30) days advance written notice, may maintain or establish the landscaping at the expense of the owner or operator and bill the owner or operator for such costs until such costs are paid in full. 20.70.160 Zoning Setback Exceptions. A. Generally, wireless communication facilities placed on private property must meet the setbacks of the underlying zoningthis chapter. However, in some circumstances, allowing modifications to setbacks may better achieve the goal of this Chapter of concealing such facilities from view. B. The Community Development Director or Hearing Examiner, depending on the type of application, may permit modifications to be made to setbacks when: 1. An applicant for a wireless communication facility can demonstrate that placing the facility on certain portions of a property will provide better screening and aesthetic considerations than provided under the existing setback requirements; or 2. The modification will aid in retaining open space and trees on the site; or 3. The proposed location allows for the wireless communication facility to be located a greater distance from residentially-zoned properties. C. This zoning setback modification cannot be used to waive/modify any required setback required under the State Building Code or Fire Code or used to reduce the safety of the facility. 20.70.170 Height Waivers. A. Where the Hearing Examiner finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the height limitations of the Land Use and Development Regulations, or the purpose of these regulations may be served to a greater extent by an alternative proposal, or that these regulations have the effect of prohibiting wireless service under the 1996 Telecom Act, it may approve an adjustment to these regulations; provided that the applicant demonstrates that the adjustments are consistent with the values, objectives, standards, and requirements of this Chapter, POMC Title 20, and the Comprehensive Land Use Plan, and demonstrate the following: 1. A particular and identifiable hardship exists, or a specific circumstance warrants the granting of an adjustment. Factors to be considered in determining the existence of a hardship Commented [MP17]: Page 85 of 351 AT&T Comments – 04-29-2022 20 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 shall include, but not be limited to: a. Topography and other site features; b. Availability of alternative site locations; c. Geographic location of property; c.d. The carrier’s service objectives; and d.e. Size/magnitude of project being evaluated and availability of co-location. B. In approving the adjustment request, the Hearing Examiner may impose such conditions as it deems appropriate to assure consistency with the values, objectives, standards, and requirements of this Chapter, POMC Title 20, and the Comprehensive Land Use Plan and to ensure that the granting of the height adjustment will not be detrimental to the public safety, health, or welfare, or injurious to other property, and will promote the public interest. C. A petition for any such adjustment shall be submitted, in writing, by the applicant with the application for Hearing Examiner review. The petition shall state fully the grounds for the adjustment and all of the facts relied upon by the applicant. 20.70.190 Removal of Abandoned Wireless Communication Facilities. Any antenna or tower that, after the initial operation of the facility, is not used for the purpose for which it was intended (based on the original application) and such non-use lasts for a continuous period of twelve (12) months or longer, shall be considered abandoned, and the owner of such antenna or tower shall remove same within ninety (90) days of receipt of notice from the City notifying the owner of such abandonment. Failure to remove such abandoned tower or commence removal within ninety (90) days of such notice shall result in the City declaring the antenna and/or tower a public nuisance. If there are two or more users of a single tower, then this section shall not become effective until all users cease using the tower. 20.70.200 Standards for Eligible Facilities Modifications. This section implements § 6409 of the "Middle Class Tax Relief and Job Creation Act of 2012" (the "Spectrum Act", PL-112- 96; codified at 47 U.S.C. § 1455(a)) see also 47 CFR § 1.6100 - Wireless Facility Modifications, which requires the City to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station. The intent is to exempt eligible facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act, while preserving the City's right to continue to enforce and condition approvals under this chapter on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety. A. Definitions. Page 86 of 351 AT&T Comments – 04-29-2022 21 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 1. "Base station" shall mean and refer to the structure or equipment at a fixed location that enables wireless communications licensed or authorized by the FCC, between user equipment and a communications network. The term does not encompass a tower as defined in this chapter or any equipment associated with a tower. a. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. b. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks). c. The term includes any structure other than a tower that, at the time an eligible facilities modification application is filed with the City under this chapter, supports or houses equipment described in subparagraphs (a) and (b) of POMC Section 20.70.200.A.1, and that has been reviewed and approved under the applicable zoning or siting process, or under another State, county or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. d. The term does not include any structure that, at the time a completed eligible facilities modification application is filed with the City under this section, does not support or house equipment described in subparagraphs (a) and (b) of POMC Section 20.70.200.A.1. 2. "Eligible facilities modification" shall mean and refer to any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and that does not result in a substantial change in the physical dimensions of an eligible support structure. 3. "Eligible support structure" shall mean and refer to any existing tower or base station as defined in this chapter, provided it is in existence at the time the eligible facilities modification application is filed with the City under this chapter. 4. "Existing" shall mean and refer to a constructed tower or base station that was reviewed and approved under the applicable zoning or siting process and lawfully constructed. 5. "Proposed facilities modification" shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving: a. collocation of new transmission equipment; b. removal of transmission equipment; or c. replacement of transmission equipment. 6. "Site" shall mean and refer to the current boundaries of the leased or owned property surrounding a tower (other than a tower in the public rights-of-way) and any access or utility easements currently related to the site and, for other eligible support structures, shall mean and be further restricted to, that area in proximity to the structure and to other Page 87 of 351 AT&T Comments – 04-29-2022 22 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 transmission equipment already deployed on the ground. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a State or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the section 6409(a) process. 7. "Substantial Change". A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria: a. For towers not in the public rights-of-way, it increases the height of the tower by more than ten percent (10%) or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty (20) feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent (10%) or more than ten (10) feet, whichever is greater. Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act. b. For towers not in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty (20) feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six (6) feet. c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four (4) cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than ten percent (10%) larger in height or overall volume than any other ground cabinets associated with the structure. d. It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than thirty (30) feet in any direction. The site boundary from which the thirty (30) feet is measured excludes any access or utility easements currently related to the site; e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment provided, however, that this limitation does not apply to any modification that is non-compliant Page 88 of 351 AT&T Comments – 04-29-2022 23 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 only in a manner that would not exceed the thresholds identified in this section. 8. "Tower" shall mean and refer to any structure built for the sole or primary purpose of supporting any antennas and their associated facilities, licensed or authorized by the FCC, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. 9. “Break Point Technology” shall mean towers designed with break point technology engineer points on the top portion of the tower to fold over onto itself in extreme stress such as earthquake and extraordinary high winds, rather than fall its full length from the base. 10. "Transmission Equipment" shall mean and refer to equipment that facilitates transmission for any wireless communication service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. B. Proposed facilities modification applications are not subject to the application requirements set forth in POMC Section 20.24.020 but may still require construction permits such as grading, street excavation, and building permits, and will also require approval of traffic control plans if traffic will be impacted. C. City decisions on eligible facilities modifications shall be issued within sixty (60) days from the date the application is received by the City, subtracting any time between the City's notice of incomplete application or request for additional information and the applicant's resubmittal. Following a supplemental submission, the City will respond to the applicant within ten (10) days, stating whether the additional information is sufficient to complete review of the application. This timing supersedes Chapter 20.24 POMC. D. If the City fails to approve or deny an eligible facilities modification within the time frame for review, the applicant may notify the City in writing that the review period has expired, and that the application has therefore been deemed granted. In such case, all limitations of this Section 20.170.200 and compliance with applicable provisions of building, structural, electrical, and safety codes and noise regulations performance standards contained in this chapter shall automatically be considered conditions of such approval. E. Applicants and the City may bring claims related to Section 6409 (a) to any court of competent jurisdiction. 20.70.210 Expiration of Wireless Facility Permits. A wireless facility permit shall automatically expire three (3) years after a Notice of Decision approving the permit is issued unless a building permit conforming to plans for which the wireless Commented [MP18]: Because this definition is applicable to setbacks for new facilities rather than EFRs, AT&T Commented [MP19]: associated FCC Orders. See AT&T’s comment letter for Page 89 of 351 AT&T Comments – 04-29-2022 24 1489606.7 - 366922 -0021 1489606.7 - 366922 -0021 facility permit was granted is obtained within that period of time. If a building permit is not required for the proposed work, such as changing antennas on an existing tower, then the substantial construction of the proposed work shall be completed within one (1) year after a Notice of Decision approving the permit is issued. The Director of Community Development may authorize a longer period for completion of work if the applicant can demonstrate why additional time is required and submits a written request for extension prior to expiration of the wireless facilities permit. Page 90 of 351 DENVER SAN FRANCISCO LOS ANGELES SEATTLE PORTLAND meridee.pabst@wirelesspolicy.com 1420 NW Gilman Blvd Ste #9030 Issaquah WA 98027 www.wirelesspolicy.com (office) 425.628.2660 (wireless) 360.567.5574 (fax) 206.219.6717 April 29, 2022 The Honorable Rob Putaansuu Port Orchard City Council 216 Prospect Street Port Orchard, WA 98366 SENT VIA EMAIL: rputaansuu@cityofportorchard.us; councilmembers@cityofportorchard.us Re: Proposed Amendments to Title 20: New Chapters 20.70 and 20.72 Wireless Communication Facilities Dear Mayor Putaansuu and Councilmembers: On behalf of New Cingular Wireless PCS, LLC (“AT&T”), I provide these comments on the proposed City of Port Orchard (“City”) code amendments referenced above. AT&T supports the City’s efforts to update its code for consistency with the latest regulations and orders of the Federal Communications Commission (“FCC”). Moreover, AT&T appreciates staff’s availability during this code update process, and its fair consideration of AT&T’s comments on earlier drafts. This comment letter and enclosed redline focus on a handful of outstanding issues that AT&T asks that the City consider in finalizing the proposed code. Skyrocketing Demand for Wireless Service AT&T continues to improve its network in response to skyrocketing demand for wireless service. Of note: • AT&T estimates that since the introduction of the iPhone in 2007, mobile data usage has increased 730,000% on its network.1 • Over 80 percent of Americans rely exclusively or primarily on wireless communications in their homes.2 1 https://www.business.att.com/explore/make-the-switch.html 2 Wireless Substitution: Early Release of Estimates from the National Health Interview Survey, January- June 2021, available at https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless202111.pdf. Page 91 of 351 April 29, 2022 Page 2 • As of June 2021, 68.0% of adults and 79.1% of children live in wireless-only households.3 This is an approximately nine-point increase over only two years’ time.4 This increase is coupled with a nearly 8-point drop in households with both a landline and wireless.5 Americans are continuing to abandon their home landlines and rely on wireless service. • According to the National Emergency Number Association (“NENA”), an estimated 240 million calls are made to 9-1-1 in the U.S. each year, and in many areas, 80% or more are from wireless devices.6 Specific Comments and Suggested Changes AT&T suggests the following changes for feasibility and consistency with federal law: • Utility Pole Height for Collocations. The City lists utility pole collocations as a preferred method of siting, consistent with many jurisdictions that prefer that a carrier avoid installing a new tower. But an additional 15 feet in height capped at a total of only 50 feet7 is typically not enough to accommodate both a carrier’s antennas at the elevation needed for service and the required vertical separation from electrical wires.8 A 50-foot cap would also restrict the availability of existing poles, eliminating those that are already near or in excess of 50 feet. To make a utility pole attachment a feasible alternative, AT&T suggests that the City’s code allow up to an additional 25 feet in height, without the maximum height capped (unless the pole is located in a residential zone, where AT&T suggests a 65-foot cap). We understand from the discussion at the April 20th Land Use Committee meeting that the equipment standards might be of greater concern than the maximum height for utility pole collocations, and we note that proposed POMC 20.70.120(5) requires that supporting equipment be placed outside of the right- of-way and screened from view. See page 16 of the enclosed redline for specific suggested changes. • Feasibility of Concealed Building-Mounted Antennas. The draft code provides that, for concealed building-mounted antennas, “[t]he screening must be made 3 Id. 4 Id., Table 1 on p. 4. 5 Id. 6 https://www.nena.org/page/911Statistics 7 Proposed POMC 20.70.120(1). 8 Consider that 50 feet is the maximum height for small wireless facilities (“SWF”) intended to serve a smaller area. See the FCC’s definition of SWF at 47 C.F.R. § 1.6002(l). Page 92 of 351 April 29, 2022 Page 3 out of the same material,”9 but screening for antennas must be RF transparent, so it cannot be the same material. The screening can be colored to be similar to the building material and look like a feature of the building, and we have suggested a clarification to make this standard feasible. In addition, the 10-foot rooftop setback incorporated by reference in draft POMC 20.70.100(1) is not necessarily consistent with allowed concealment in a church steeple or chimney structure, which are often at the edge of a roof, and AT&T suggests a clarification to address feasibility of this type of design. See page 15 of the enclosed redline for specific suggested changes. • Eligible Facilities Requests (47 C.F.R. § 1.6100). Proposed POMC 20.70.200(D) contains a provision inconsistent with federal law where it provides that any eligible facilities request that is deemed granted will be subject to the performance standards of POMC Chapter 20.70 as conditions of approval. Performance standards that would apply to an initial installation of a wireless facility do not apply to an eligible facilities request; instead, the proposal is reviewed under the zoning code solely for purposes of deciding whether the modification is a “substantial change” and is also subject to building, structural, electrical, and safety codes as well as noise regulations.10 AT&T suggests a clarification to POMC 20.70.200(D) to match the City’s scope of review under 47 C.F.R. § 1.6100. See page 23 of the enclosed redline for specific suggested changes. • Height Waiver. A wireless applicant is most likely to seek a height waiver when wireless service is prohibited by limitations on height, contrary to federal law. Such a prohibition of service may or may not be related to the physical characteristics of the proposed site, and carriers typically support requests for waivers with propagation maps and other materials demonstrating their specific service objective. AT&T suggests that POMC 20.70.170 be clarified to allow waivers in such circumstances. See pages 19-20 of the enclosed redline for specific suggested changes. 9 Proposed POMC 20.70.100(2). 10 Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket No. 13- 238 and 13-32, WC Docket No. 11-59, Report and Order, 29 FCC Rcd 12865, ¶ 202 (2014) (2014 Infrastructure Order), aff’d, Montgomery Cty. v. FCC, 811 F.3d 121 (4th Cir. 2015). Page 93 of 351 April 29, 2022 Page 4 Final Clarifications Finally, the draft code would benefit from several clarifications for internal consistency and to better guide applicants and staff going forward. We have provided these suggested clarifications in the enclosed redline. We appreciate your consideration of AT&T’s comments and for all the efforts by the City’s leaders and staff to establish workable policies for the wireless industry, including AT&T, and the people living and working in the Port Orchard community. Sincerely, Meridee Pabst meridee.pabst@wirelesspolicy.com Enclosure: Redline of Proposed Chapter 20.70 cc: Nick Bond, Community Development Director Jim Fisk, Senior Planner Page 94 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City has negotiated an amendment of Annexation Agreement No. 085-11 through the development agreement process coupled with the Credit Agreement for Capital Facility Charges executed by the City and McCormick Communities May 14, 2022. The construction of five Capital Improvement Projects by McCormick Communities, L.L.C. enables the City to supply water to and outside of the McCormick property and increase the City’s total water storage capacity by 50 % in all pressure zones. The construction projects described in the CFC Credit Agreement provide a benefit to the City and its residents. This agreement, if approved, would extend the term of the Annexation Agreement 20 years from the date of execution of this agreement or until McCormick receives the Maximum Water CFC Credit as described in Sections 6 and 11 of the Credit Agreement. However, certain development standards established in the initial Annexation Agreement are outdated and/or irrelevant. Specifically, McCormick waives any vesting to: • former stormwater control standard; • former drainage regulations; • the previous roadway sections; and, • former Port Orchard Municipal Code 16.30. Subsequent development must demonstrate consistency with the current regulations associated with those listed above, or as described in Appendix D attached to this Report. The preliminary plat of McCormick West was approved based on Kitsap County’s system for approval of modifications to preliminary plats during the final plat approval process. The City and McCormick Communities recognize that the City’s standards for distinguishing between minor modification, which may be approved by the staff, and major modifications, which requires review by the Hearing Examiner, are more stringent than the County’s. Through this agreement though, City staff is authorized to permit minor modifications without the necessity of further review by the Hearing Examiner during the final plat process provided that the modification is consistent with the Department of Ecology’s Stormwater Management Manual in effect at the time of the modification and does not exceed certain thresholds established in the agreement. Additionally, development in the area remain vested to the previous performance standards related to critical areas, but updated wetland delineations will be required upon the submittal of subsequent development activity permit applications. Page 95 of 351 Public Hearing 6C Page 2 of 2 POMC 20.26 (Development Agreements) outlines the process for development agreement approval. Developers seeking a development agreement, must submit an application. In this case, the application for the development agreement was filed on April 1, 2022. The proposed development agreement is related to the May 14, 2022 Credit Agreement for Capital Facility Charges and Annexation Agreement No. 085-11. If the ordinance for the Development Agreement is approved subsequent to the public hearing on the May 10, 2021 City Council agenda as a business item, the Developer will receive a term extension of Annexation Agreement 085-11 and modified performance standards. Relationship to Comprehensive Plan: The Development Agreement includes a portion of the Capital Improvement Program, which is incorporated into the Comprehensive Plan by reference. Recommendation: Staff recommends that the City Council hold a public hearing on the McCormick West development agreement amending Annexation Agreement No. 085-11. Fiscal Impact: The proposed amendment results in the developer constructing five projects on the City’s current Capital Improvement Plan (that the City is unable to finance and construct itself. Alternatives: Do not approve the Development Agreement; request changes to the Development Agreement. Attachments: Draft ordinance, Amendment of Annexation Agreement No. 085-11, Exhibit A, and Road Sections Appendix D. Page 96 of 351 1584506.1 - 366922 -0037 ORDINANCE NO. __ -22 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE AN AMENDED DEVELOPMENT AGREEMENT WITH McCORMICK COMMUNITIES, LLC FOR THE McCORMICK WEST DEVELOPMENT; PROVIDING FOR SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to RCW 36.70B.170, the City Council has the authority to review and enter into development agreements that govern the development and use of real property within the City; and WHEREAS, the City Council has adopted standards and procedures governing the City’s use of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code (POMC); and WHEREAS, McCormick Communities, LLC’s predecessor, GEM 1 LLC entered into a pre- annexation Development Agreement with Port Orchard for the Development known as “McCormick West” which was titled “Annexation Agreement No. 085-11 for McCormick West” (hereinafter “Development Agreement”); and WHEREAS, Port Orchard annexed McCormick West on November 22, 2011 by passage of Ordinance No. 018-11; and WHEREAS, the City and McCormick Communities, LLC have prepared an Amendment to that Development Agreement, for the purposes of extending the term of the Development Agreement, waiving certain vesting to prior development standards, establishing new applicable standards, addressing minor modifications, updating applicable roadway standards, and establishing the sewer capacity reservation for the completion of the McCormick West Development; and WHEREAS, the Amendment of the Development Agreement is attached to this Ordinance as “Exhibit A”; and WHEREAS, on DATE , 2022, the City’s SEPA official issued a determination of non-significance for the proposed Amendment of the Development Agreement and there have been no appeals; and WHEREAS, on May 10, 2022, the City Council held a public hearing on the proposed Amendment of the Development Agreement, and (comments received/not received, etc); and Page 97 of 351 Ordinance No. __-22 Page 2 of 3 1584506.1 - 366922 -0037 WHEREAS, the City Council, after careful consideration of the Amendment of the Development Agreement and all public comments and testimony, finds that the Amendment of the Development Agreement is consistent with the City’s Comprehensive Plan and development regulations, the Growth Management Act, Chapter 36.70A RCW, and that the amendments herein are in the best interests of the residents of the City; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. Findings. The City Council adopts all of the “Whereas” sections of this ordinance and all “Whereas” sections of the Amendment of the Development Agreement as findings in support of this ordinance. SECTION 2. Authorization. The City Council approves of and authorizes the Mayor to execute an Amendment of the with McCormick Communities, LLC as provided in “Exhibit A” of this Ordinance. SECTION 3. 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 of constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 4. Corrections. Upon the approval of the city attorney, the city clerk and/or code publisher is authorized to make any necessary technical corrections to this Ordinance, including but not limited to the correction of scrivener’s/clerical errors, references, Ordinance numbering, section/subsection numbers, and any reference thereto. SECTION 5. Effective Date. This Ordinance shall be published in the official newspaper of the city and shall take full force and effect five(5) days after posting and publication as required by law. A summary of this Ordinance may be published in lieu of publishing the entire Ordinance, as authorized by state law. Page 98 of 351 Ordinance No. __-22 Page 3 of 3 1584506.1 - 366922 -0037 PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this day of May, 2022. ____ Robert Putaansuu, Mayor ATTEST: _______ Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: Sponsored by: Charlotte A. Archer, City Attorney ****, Council Member PUBLISHED: EFFECTIVE DATE: EXHIBIT A: McCORMICK COMMUNITIES, LLC AMENDMENT TO DEVELOPMENT AGREEMENT FOR McCORMICK WEST Page 99 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 1 FG:74413905.9/1518180.12 - 366922 -0037 AMENDMENT OF ANNEXATION AGREEMENT No. 085-11 McCormick West This AMENDMENT OF ANNEXATION AGREEMENT No. 085-11 (“Amendment Agreement”) is entered into between the City of Port Orchard, a Washington municipal corporation (“City” or “Port Orchard”) and McCormick Communities, LLC, a Washington limited liability company (“McCormick”). City and McCormick are each a “Party” and together the “Parties” to this Amendment Agreement. RECITALS A. In 2011 the City and McCormick’s predecessor in interest, GEM 1 LLC, entered into the “ANNEXATION AGREEMENT No. 085-11 for McCormick West” (“Annexation Agreement”). McCormick West comprises the McCormick West Master Plan and Preliminary Plat. The Annexation Agreement, as stated in its Recital G, is a development agreement authorized by RCW 36.70B.170 that applies to the area subject to the McCormick West Master Plan and Preliminary Plat that the City was preparing to annex to the City. B. On November 22nd, 2011 the City approved ordinance 018-11 annexing McCormick West subject to the Annexation Agreement. McCormick West is a portion of the larger McCormick Property that is described in the CREDIT AGREEMENT FOR CAPITAL FACILITY CHARGES (“Credit Agreement”) that the Parties are executing in sequence with this Amendment Agreement. The McCormick West portion of the larger McCormick Property is depicted on Exhibit A to this Amendment Agreement. C. As set forth in the Credit Agreement, McCormick is financing and constructing five projects on the City’s current Capital Improvement Plan (hereafter the Five CIP Projects) that the City is unable to finance and construct itself. By doing so, McCormick is creating water infrastructure that will enable the City to supply water to the McCormick Property as the City agreed to do in the 1998 PSA between the City and McCormick’s predecessor, the McCormick Water Company. D. By constructing the Five CIP Projects, McCormick also is constructing water infrastructure that will enable the City to provide water to areas of the City outside of the McCormick Property. McCormick’s construction will increase the City’s total water storage capacity by 50% in all pressure zones and create infrastructure to serve the entire City in the event of shortfalls in water supply or storage in other areas of the City. E. The CIP estimates the total cost of the Five CIP Projects to be $11,840,625. McCormick will receive partial reimbursement for this investment in the Five CIP Projects by means of the Water CFC Credit described in the Credit Agreement. As stated in Section 3 of the Credit Agreement, McCormick and the City anticipate that McCormick will construct the Five CIP Projects within the next five years (although drilling of Well 12 may take longer because the City needs to first secure water rights under the Foster program), but Page 100 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 2 FG:74413905.9/1518180.12 - 366922 -0037 McCormick will receive the anticipated credit per ERU over the next 20 years, and may never receive full credit, depending on the market for lots within the McCormick Property. F. When the $11,840,625 invested by McCormick in the Five CIP Projects is adjusted for the time value of money over 20 years, the additional financing cost to McCormick is between $1,933,991 and $2,544,900, depending on the rate at which new ERUs are developed. This financing cost is not reimbursable under the CFC Credit Agreement, but it presents significant public benefit to the City and constitutes consideration for the City entering into this Amendment Agreement to extend the term of the Annexation Agreement to coincide with the term of the Credit Agreement, so that sufficient ERUs are potentially available to provide the credits needed to defray a meaningful portion of the costs of financing and building the Five CIP Projects. G. In addition, Section 3 of the Annexation Agreement vests McCormick to former Section 16.30 of the Port Orchard Municipal Code, with some exceptions, and McCormick is willing to forgo its vested rights and instead vest to the City’s regulations in its current Unified Development Code, subject to one modification set forth below in Section 3. This agreement by McCormick to waive its vested right to Section 16.30 of the former Code constitutes additional consideration to the City to enter into this Amendment Agreement. H. On March 14, 2022 the City and McCormick executed the Credit Agreement, and the Parties are now executing this Amendment Agreement while also amending the Development Agreement for McCormick Woods Phases III, IV, and V. These three agreements are intended to be construed together as part of a larger agreement between the Parties, with each agreement constituting part of the consideration for the other two agreements. I. On April 17, 2018 the City entered into an Agreement with Winward McCormick, LLC which is related to McCormick Communities, LLC for the purpose of Winward McCormick, LLC constructing Sewer Lift Station #1. The construction of Sewer Lift Station #1 provides additional consideration for this Amendment. J. In consideration of the promises and undertakings described above together with those in the Credit Agreement, the City and McCormick agree as follows: AGREEMENT 1. Annexation Agreement affirmed. The Annexation Agreement, together with the vested rights that McCormick obtained pursuant to RCW 58.17.033(1) when it submitted a complete application for the preliminary plat of McCormick West and when the Kitsap County Board of County Commissioners approved this Preliminary Plat, are affirmed except as modified by this Amendment Agreement. 2. Extension of term: The term of the Annexation Agreement and of the associated vested rights, are hereby extended to coincide with the term of the Credit Agreement, which shall Page 101 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 3 FG:74413905.9/1518180.12 - 366922 -0037 be 20 years from execution of this Amendment Agreement or until McCormick receives the Maximum Water CFC Credit as described in Sections 6 and 11 of the Credit Agreement. However, in no case shall this Agreement extend beyond the twenty-year extension term. 3. Section 3.c Vesting Waived. McCormick waives its Section 3.c vesting to former stormwater control standards and to former drainage regulations. 4. Section 3.d Vesting Waived; Updated Roadway Cross Sections. McCormick waives its Section 3.d vesting to the Road Cross Sections that were attached as Appendix D. A new Appendix D with applicable Road Cross Sections is attached to this Amendment Agreement and will replace the Appendix D to the Annexation Agreement. These updated Road Cross Sections will apply to future phases of the development. Any phases currently under LDAP/SDP permit application review that have utilized the Road Cross Sections from Appendix D of the Annexation Agreement do not need to use the updated Road Cross Sections contained in this Amendment. 5. Section 3.e Vesting Waived. McCormick waives its Section 3.e vesting to former POMC 16.30 and agrees that development of residential structures and lots within McCormick West shall be consistent with Title 20 as it exists as of the date of execution of this Agreement, provided that POMC §20.32.020(6)(c) shall not apply and POMC §20.34.030(5)(d) and (6)(d) are modified so that rear yard setbacks from alleys for both principal and accessory structures shall be a minimum four (4) feet; and provided further that in the event of conflict between specific regulations within Title 20 and the development depicted and approved on the face of the Preliminary Plat, including any approved amendments to the Preliminary Plat, the Preliminary Plat shall control. However, if major modifications are made to the Preliminary Plat, then those modifications would be based on the then-current applicable regulations and that plat would not be vested to an earlier vesting date under either the Development Agreement, or this Amendment. Further, provided, that future owner(s) of any of the parcels of the Property to which this Amendment applies may, at their option, waive this or subsequent vesting. 6. Section 3.f Amended. Section 3.f is hereby amended to read as follows: Final Plat – Minor modifications. The preliminary plat of McCormick West was designed and approved based on Kitsap County’s system for approval of minor modifications to the preliminary plat during the final plat review and approval process. The Parties recognize that the City’s standards for distinguishing between minor modification, which may be approved by the staff, and major modifications, which require re-review by the Hearing Examiner, are more stringent than the County’s. During the final plat process for McCormick West, the City staff is authorized to permit minor modifications without the necessity of further review by the Hearing Examiner so long as the modification is consistent with the Department of Ecology’s Stormwater Management Manual in effect at the time of the modification and also does not (1) increase or decrease the number of authorized homes by more than 30 dwelling units; (2) increase the number of lots by more Page 102 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 4 FG:74413905.9/1518180.12 - 366922 -0037 than 30 lots (however, modifying single-family dwelling units to attached (zero lot line) housing units would qualify for a minor modification); (3) increase traffic volumes above the volume contemplated by the 2021 Development Agreement for Transportation; (4) require modification or alteration of a critical area or buffer that was not contemplated by the preliminary plat approval or as described in Section 8 of this Amendment; or (5) reduce the amount of open space or recreational facilities contemplated by the preliminary plat approval. 7. Section 4.a Extension. The Term of this Agreement is addressed in Section 2 of this Amendment, therefore, the option for a five-year extension addressed in Section 4.a of the Annexation Agreement is no longer appropriate and McCormick waives its right to request such an extension under this Amendment. 8. Critical Areas Vesting and Updating. Critical areas were established under the preliminary plat approval process, including buffers and other standards. McCormick remains vested to these critical area performance standards. The prior wetland categorization will also remain in place. However, since wetlands do migrate and change over time, updated wetland delineations will be required at the time of submittal of a land disturbing activity permit so that the locations of the buffers and wetland boundaries will be consistent with the then-present site conditions. 9. Sewer Capacity Reservation. Approval of this Agreement by the City Council is equivalent to issuance of a sewer capacity reservation certificate (CRC) under POMC Chapter 20.180 for 1,575 dwelling units. The sewer capacity reservation shall expire if this Agreement is not subsequently executed by the Mayor, and once executed, the capacity reservation will expire with this Agreement. 10. Default. Failure or delay by either Party to perform any term or provision of this Amendment Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Amendment Agreement, the Party alleging such default or breach shall give the other Party not less than thirty (30) days’ notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During this thirty (30) day period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings. After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other Party to this Amendment Agreement may, at its option, institute legal proceedings pursuant to this Amendment Agreement. 11. Non-Waiver of Breach. The failure of a Party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be and remain in full force and effect. Page 103 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 5 FG:74413905.9/1518180.12 - 366922 -0037 12. Conflict. In the event of any conflict between this Amendment Agreement and the Port Orchard Municipal Code, this Agreement shall control. 13. Resolution of Disputes and Governing Law. If any dispute arises between the City and McCormick under any of the provisions of this Amendment Agreement, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. This Amendment Agreement shall be governed by and construed in accordance with the laws of the State of Washington. The non-prevailing party in any action brought to enforce this Amendment Agreement shall pay the other parties' expenses and reasonable attorney's fees. 14. Written Notice. All written communications regarding enforcement or alleged breach of this Amendment Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Unless otherwise specified, any written notice hereunder shall become effective upon the date of both emailing and mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated below: McCORMICK: CITY: Eric Campbell 12332 NE 115th Place Kirkland, WA 98033 eric@mspgroupllc.com Nick Tosti 805 Kirkland Avenue, Suite 200 Kirkland, WA 98033 Rob Putaansuu, Mayor City of Port Orchard 216 Prospect Street Port Orchard WA 98366 rputaansuu@cityofportorchard.us A copy shall also be transmitted to the City Clerk at the above address. 15. Assignment. In the event that McCormick assigns the Credit Agreement in accordance with Section 19 of the Credit Agreement, this Amendment Agreement shall be deemed to be simultaneously assigned to the same assignee. 16. Modification. No waiver, alteration, or modification of any of the provisions of this Amendment Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and McCormick. 17. Severability. The provisions of this Amendment Agreement are declared to be severable. If any provision of this Amendment Agreement is for any reasons held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. 18. Good Faith and Due Diligence. The Parties agree to perform all obligations under this Amendment Agreement in good faith and with due diligence. Page 104 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 6 FG:74413905.9/1518180.12 - 366922 -0037 19. Binding on Successors. The rights, obligations, conditions, and interests set forth in this Amendment Agreement shall run with the land and shall inure to the benefit of and be binding upon McCormick, and its heirs, personal representatives, successors. and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement on this day of , 2022. MCCORMICK COMMUNITIES, LLC CITY OF PORT ORCHARD By: By: Its: Its: Mayor APPROVED AS TO FORM: APPROVED AS TO FORM: Patrick Schneider Jennifer S. Robertson Attorney for McCormick Communities Attorney for Port Orchard ATTEST: Brandy Wallace Port Orchard City Clerk Page 105 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 7 FG:74413905.9/1518180.12 - 366922 -0037 STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu 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 Mayor of Port Orchard to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 20 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Page 106 of 351 Amendment of Annexation Agreement No. 085-11 (McCormick West) Page 8 FG:74413905.9/1518180.12 - 366922 -0037 STATE OF WASHINGTON ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that Mr. is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the of McCormick Communities, LLC to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 20 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Page 107 of 351 Exhibit A McCormick West Page 108 of 351 Est. 1890 7' PARKING McCormick West Development Agreement Road Sections - Appendix D Ian Smith, PE March 21, 2022 NTS Drawn By: Date: Scale: Sub-Collector Road Section (Replaced Section A & B) 5' WALK 4.5' PLANTER 10' DRIVE LANE 4.5' PLANTER 5' WALK 40' ROW 20' ROW 20' ROW 10' DRIVE LANE 5' WALK 4.5' PLANTER 10' DRIVE LANE 4.5' PLANTER 5' WALK 47' ROW 27' ROW 20' ROW 10' DRIVE LANE7' PARKING 5' WALK 4.5' PLANTER 10' DRIVE LANE 4.5' PLANTER 5' WALK 54' ROW 27' ROW 27' ROW 10' DRIVE LANE7' PARKING Local Road Minor w/o Parking (Replaced Sections C & D) Local Road Minor w/ Parking One Side (Replaced Sections C & D) Local Road Minor w/ Parking Both Sides (Replaced Sections C & D) 70' ROW 12' DRIVE LANE 12' DRIVE LANE BIORETENTION WIDTH VARIES 8' OR 12' SEPARATED PATH VARIES 12" GRAVEL 4' SHOULDER 4' SHOULDER 24" GRAVEL 12" GRAVEL VARIES AT INTERSECTIONS, WHERE PARKING CANNOT BE PROVIDED, TRAVEL WAY SHALL NARROW WITH CURB BULB OUTS TO 20' AT INTERSECTIONS, WHERE PARKING CANNOT BE PROVIDED, TRAVEL WAY SHALL NARROW WITH CURB BULB OUTS TO 20' Page 109 of 351 Est. 1890 McCormick West Development Agreement Road Sections - Appendix D Ian Smith, PE March 21, 2022 NTS Drawn By: Date: Scale: 20' TRACT WIDTH 18' PAVEMENT 5' WALK 4.5' PLANTER 10' DRIVE LANE 0.5' CURB 38' ROW 27' ROW 10' DRIVE LANE7' PARKING 5' WALK 13' DRIVE LANE 5' WALK 60' ROW 30' ROW 30' ROW 13' DRIVE LANE Private Access Tract (Section G) Local Road Minor (Replaced Section E) McCormick West Gleneagle Connector (Section I) 11' ROW THICKENED EDGE 12" GRAVEL 12" GRAVEL 10' DRIVE LANE 0.5' CURB 31' ROW 20' ROW 10' DRIVE LANE Local Minor Access (Replaced Section F) 11' ROW 5' WALK 4.5' PLANTER AT INTERSECTIONS, WHERE PARKING CANNOT BE PROVIDED, TRAVEL WAY SHALL NARROW WITH CURB BULB OUTS TO 20' ROAD SECTION SHALL ONLY BE ALLOWED WHERE LOTS DO NOT FRONT ON BOTH SIDES OF THE RIGHT-OF-WAY AND WHERE APPROVED BY THE CITY ROAD SECTION SHALL ONLY BE ALLOWED WHERE LOTS DO NOT FRONT ON BOTH SIDES OF THE RIGHT-OF-WAY AND WHERE APPROVED BY THE CITY 20' TRACT WIDTH 10' PAVEMENT Private Alley (Added Section) 10' PAVEMENT Page 110 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City has negotiated a development agreement for transportation impact fee credits with Sidney Road Townhomes, L.L.C. This agreement, if approved, would provide transportation impact fee credits to the developer in exchange for the developer designing, constructing and funding transportation improvements within and near the Haven Townhomes development, located at 4801 Glenwood Road SW (The future townhomes will be addressed from Sidney Road SW). The Haven Townhomes development consists of approximately 114 multi-family dwellings across 20 townhome-style buildings, a residential amenity facility, off-street parking for approximately 305 vehicles, landscaping, and associated site improvements normal and expected to multifamily residential development. The proposal is currently under review consistent with applicable Port Orchard Municipal Code requirements and the Public Works Engineering Standards and Specifications. The City of Port Orchard’s Responsible Official issued and Mitigated Determination of Non-significance for the development on March 11, 2022. The transportation improvements described in the Development Agreement include one half of the widened Sidney Avenue SW from Glenwood Road to just north of Ruby Creek, including travel lane, bike lanes, curb, gutter, sidewalk, street lighting, landscaping strip, and crosswalk including curb ramps. POMC 20.26 (Development Agreements) outlines the process for development agreement approval. Developers seeking a development agreement, must submit an application. In this case, the application for the development agreement was filed on April 13, 2022. The proposed development agreement is related to the Haven Townhomes Land Disturbing Activity Permit (PW21-079). If the ordinance for the Development Agreement is approved subsequent to the public hearing, the Developer would be eligible to receive transportation fee credit associated with the development. The developer shall pay the required transportation impact fees at the time of building permit issuance where the value for transportation impact fees associated with the development is currently calculated at $315,949.20. The developer shall be required to pay either the maximum transportation impact fee or the actual cost of improvement construction, whichever is less. Page 111 of 351 Public Hearing 6D Page 2 of 2 Relationship to Comprehensive Plan: The Development Agreement includes a portion of the Sidney Road SW transportation project identified as Project 2026-2039 Tier 2 2.05 in the City’s adopted Transportation Improvement Program (TIP), which is incorporated into the Comprehensive Plan by reference. Recommendation: Staff recommends that the City Council hold a public hearing on the Haven Townhomes Development Agreement for transportation impact fee credits. Fiscal Impact: The proposed agreement will result in the developer constructing a portion of a project listed on the City’s Transportation Improvement Program saving the city money and staff resources. The dedication of the transportation facilities will result in the ongoing maintenance of public infrastructure. Alternatives: Do not approve the Development Agreement; request changes to the Development Agreement. Attachments: The associated materials for this public hearing are attached to the corresponding business item (Business Item 7C) on the May 10, 2022, agenda and include: Ordinance; 2022 Development Agreement; Exhibits to 2022 Development Agreement. Page 112 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City Council is asked to consider the adoption of a proposed chapter POMC 20.70 Wireless Communication Facilities. The purpose of this chapter is to regulate the placement, construction, and modification of wireless communication facilities, to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in Port Orchard. Proposed chapter POMC 20.70 includes standards for the design and aesthetics associated with these facilities. The City of Port Orchard SEPA Responsible Official issued a Determination of Nonsignificance (DNS) on April 1, 2022. The City did not receive written comments in response to the DNS and the DNS was not appealed. Proper notice was provided to the Washington State Department of Commerce regarding the intent to adopt the regulations. Notice of Hearing for the Planning Commission consideration of the draft code was provided on March 21, 2022 consistent with the requirements of POMC 20.25. The Department of Community Development received comments regarding the draft Ordinance from wireless communication providers and incorporated some of the suggested changes into the draft code prior to the April 5, 2022 Planning Commission public hearing. On April 5, 2022 the Planning Commission held a public hearing to take public testimony and subsequently recommended approval of the proposed ordinances to the City Council, but asked staff to continue working with the providers to refine the draft language prior to City Council action. The code before the City Council is the result of a responsive effort with the providers and staff to provide a code which provides a predictable permitting process that meets the needs of the providers while considering the impacts wireless facilities may have on the community. Relationship to Comprehensive Plan: Implementation of the adopted City of Port Orchard Comprehensive Plan Land Use Element. Recommendation: Staff recommends that the City Council vote to approve an ordinance adopting Chapter POMC 20.70 Wireless Communication Facilities. Motion for Consideration: “I move to adopt an ordinance adopting Chapter POMC 20.70 Wireless Communication Facilities.” Page 113 of 351 Business Item 7A Page 2 of 2 Fiscal Impact: The proposed ordinance is not expected to have a fiscal impact on the City’s operations. Alternatives: Do not approve the Ordinance; request changes to the Ordinance. Attachments: Ordinance adopting POMC 20.70 Wireless Communication Facilities Page 114 of 351 ORDINANCE NO. _____ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ADDING A NEW CHAPTER 20.70 THE PORT ORCHARD MUNICIPAL CODE REGARDING ZONING FOR WIRELESS COMMUNICATIONS FACILITIES, INCLUDING ESTABLISHING PERMITTING PROCEDURES, PERFORMANCE STANDARDS, EXEMPTIONS, DEFINTIONS, CONDITIONS AND CRITERIA FOR APPROVAL, STANDARDS FOR DIFFERENT LAND USE ZONES; PROVIDING FOR SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, in 1934 Congress enacted the Communications Act of 1934, creating the Federal Communications Commission and granting it authority over common carriers engaged in the provision of interstate or foreign communications services; and WHEREAS, in 1996 Congress enacted Pub. L. No. 104-104, 110 Stat. 70 (the "Telecommunications Act of 1996"), amending the Communications Act of 1934 and implementing regulations applicable to both wireless and wireline communications facilities for the purpose of removal of barriers to entry into the telecommunications market, while preserving local government zoning authority except where specifically limited under the Telecommunications Act of 1996; and WHEREAS, in the Telecommunications Act of 1996, Congress imposed substantive and procedural limitations on the traditional authority of state and local governments to regulate the location, construction, and modification of wireless facilities and incorporated those limitations into the Communications Act of 1934; and WHEREAS, in 2012, Congress passed the "Middle Class Tax Relief and Job Creation Act of 2012" (the "Spectrum Act") (PL-112-96; codified at 47 U.S.C. § 1455(a)); and WHEREAS, Section 6409 of the Spectrum Act (hereafter "Section 6409") implements additional substantive and procedural limitations upon state and local government authority to regulate modification of existing wireless antenna support structures and base stations; and WHEREAS, Congress, through its enactment of Section 6409, has mandated that local governments approve, and cannot deny, an application requesting modification of an existing tower or base station if such modification does not substantially change the physical dimensions of such tower or base station; and WHEREAS, the Telecommunications Act of 1996 empowers the Federal Communications Commission (the "FCC") to prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of the 1996 Act, and subsequently added portions of the 1996 Act such as Section 6409; and Page 115 of 351 Ordinance No. ____ Page 2 of 24 WHEREAS, the FCC, pursuant to its rule-making authority, has continued to adopt new rules to implement Section 6409 and such rules have been subject to litigation with the Federal Courts weighing in on the rules, which have been mostly upheld; and WHEREAS, the City Council finds that it is in the best interest of the City to adopt and implement local development and zoning regulations that are consistent with Section 6409; and WHEREAS, in accordance with RCW 36.70A.106 and WAC 365-196-630, a notice of intent to adopt the proposed new development regulations was sent to the State of Washington Department of Commerce and to other state agencies to allow for a 60-day review and comment period, which comment period ended prior to adoption of this ordinance; and WHEREAS, on April 1, 2022, the City’s SEPA official issued a determination of nonsignificance for the proposed amendments, which was published and provided to the public in accordance with POMC 20.160.190 and WAC 197-11-510, and there have been no appeals; and WHEREAS, on March 21, 2022, the City issued a Notice of Public Hearing for the proposed amendments creating new POMC Chapter 20.70, Chapter 20.72, and amending POMC 20.39.270 which was published and provided to the public in accordance with POMC 20.25.050; and WHEREAS, the City worked collaboratively with the telecommunications providers to improve the Ordinance; and WHEREAS, the Planning Commission conducted a public hearing on the substance of this Ordinance on April 5, 2022, and recommended its adoption by the City Council; and WHEREAS, the Land Use Committee of the City Council considered this Ordinance on April 20, 2022; and WHEREAS, the City Council opted to conduct a 2nd public hearing on the substance of this Ordinance on May 10, 2022; and WHEREAS, on April 18, 2022, the City issued a Notice for a 2nd Public Hearing for the proposed amendments creating new POMC Chapter 20.70, Chapter 20.72, and amending POMC 20.39.270 which was published and provided to the public in accordance with POMC 20.25.050; and Page 116 of 351 Ordinance No. ____ Page 3 of 24 WHEREAS, the City Council, after careful consideration of the recommendation from the Planning Commission, all public comment, and the Ordinance, finds that this Ordinance is consistent with the City’s Comprehensive Plan and development regulations, the Growth Management Act, Chapter 36.70A RCW, Section 6409, and that the amendments herein are in the best interests of the residents of the City and further advance the public health, safety and welfare; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Recitals. The recitals set forth in this ordinance are hereby incorporated as if fully set forth herein. SECTION 2. Adoption of Chapter 20.70 POMC. A new Chapter 20.70 entitled “Wireless Communication Facilities” is hereby added to the Port Orchard Municipal Code to read as follows: CHAPTER 20.70 WIRELESS COMMUNICATION FACILITIES Sections: 20.70.010 Purpose 20.70.020 Authority and Application 20.70.030 Exemptions 20.70.040 Permits Required 20.70.050 Types of Permits—Priority—Restrictions 20.70.060 New Towers 20.70.070 General Requirements 20.70.080 Electrical Transmission Tower Co-Location-Specific Development Standards 20.70.090 Adding Antennas to Existing WCF Tower-Specific Development Standards 20.70.100 Concealed Building Mounted Development Requirements 20.70.110 Non-concealed Building Mounted Development Requirements 20.70.120 Utility Pole Co-location 20.70.130 Towers-Specific Development Standards 20.70.140 Request to Use Non-concealed Building Attached in Lieu of a Concealed Building Attached 20.70.150 Landscaping/Screening 20.70.160 Zoning Setback Exceptions 20.70.170 Height Waivers Page 117 of 351 Ordinance No. ____ Page 4 of 24 20.70.190 Removal of Abandoned Wireless Communication Facilities 20.70.200 Standards for Eligible Facilities Modifications 20.70.210 Expiration of Wireless Facility Permits 20.70.010 Purpose A. The purpose of this Chapter is to regulate the placement, construction and modification of wireless communication facilities, in order to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the City. The purpose of this Chapter will be achieved through adherence to the following objectives: 1. Establish clear and nondiscriminatory local regulations concerning wireless telecommunications providers and services that are consistent with Federal and State laws and regulations pertaining to telecommunications providers; 2. Protect residential areas and land uses from potential adverse impacts that wireless communication facilities might create, including but not limited to impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors, and health and safety of persons and property; 3. Encourage providers of wireless communication facilities to locate these facilities, to the extent possible, in areas where the adverse impact on the community is minimal; 4. Encourage the location of wireless communication facilities in nonresidential areas and allow wireless communication facilities in residential areas only when necessary, to meet functional requirements of the telecommunications industry; 5. Minimize the total number of wireless communication facilities in residential areas; 6. Require cooperation between competitors and, as a primary option, joint use of new and existing towers, tower sites and suitable structures to the greatest extent possible, in order to reduce cumulative negative impact upon the City; 7. Allow wireless communication companies to use City property (i.e., City Hall, Community Center, utilities property, parks, etc.) for the placement of wireless facilities, where consistent with other public needs, as a means to generate revenue for the City; 8. Ensure wireless communication facilities are configured in a way that minimizes the adverse visual impact of the wireless communication facilities, as viewed from different vantage points, through careful design, landscape screening, minimal impact siting options and camouflaging techniques, and through assessment of technology, current location options, siting, future available locations, innovative siting techniques and siting possibilities beyond the jurisdictional boundaries of the City; 9. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently; 10. Provide for the removal of wireless communication facilities that are abandoned or no longer inspected for safety concerns and Building Code compliance, and provide a mechanism for the City to cause these abandoned wireless communication facilities to be Page 118 of 351 Ordinance No. ____ Page 5 of 24 removed, to protect the residents from imminent harm and danger; 11. Avoid potential damage to adjacent properties from tower failure, through engineering, careful siting, height limits, and maintenance of wireless communication facilities; and 12. Provide a means for public input on major wireless communications facility placement, construction, and modification. B. In furtherance of these objectives, the City shall give due consideration to the Comprehensive Land Use Plan, Land Use and Development Regulations, existing land uses, and environmentally sensitive areas in approving sites for the location of communication towers and antennas. C. These objectives were developed to protect the public health, safety, and welfare, to protect property values, and to minimize visual impact, while furthering the development of enhanced telecommunication services in the City. These objectives were designed to comply with the Telecommunications Act of 1996. The provisions of this Chapter are not intended to and shall not be interpreted to prohibit or to have the effect of prohibiting personal wireless services. This Chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services. D. To the extent that any provision of this Chapter is inconsistent or conflicts with any other City ordinance, this Chapter shall control. Otherwise, this Chapter shall be construed consistently with the other provisions and regulations of the City. E. In reviewing any application to place, construct or modify wireless communication facilities, the City shall act within a reasonable period of time after an application for a permit is duly filed, taking into account the nature and scope of the application. Any decision to deny an application shall be in writing, supported by substantial evidence contained in a written record. The City shall approve, approve with conditions, or deny the application in accordance with Title 20 of the Port Orchard Municipal Code, this Chapter, the adopted Port Orchard Comprehensive Plan, and other applicable ordinances and regulations. 20.70.020 Authority and Application. The provisions of this Chapter shall apply to the placement, construction, or modification of all wireless communication facilities, except as specifically exempted in POMC Section 20.70.030. 20.70.030 Exemptions. The provisions of this Chapter shall not apply to the following: 1. Wireless communication facilities permits are not required for subparagraphs 1.a through 1.e of this section; however, other permits, such as a grading permit, street excavation permit, traffic management plan, or building permit may be required: a. Routine maintenance and repair of wireless communication facilities when no traffic impacts will occur. This shall not include changes in height or dimensions of towers or buildings; provided that the wireless communication facility received approval from the City of Page 119 of 351 Ordinance No. ____ Page 6 of 24 Port Orchard or Kitsap County for the original placement, construction, or subsequent modification. When traffic impacts will occur, a traffic control plan approved by the City is required prior to performing the work. b. Changing of antennas on wireless communication facilities is exempt from wireless facilities permits, provided the total area of the new antennas and support structure is not increased more than ten percent (10%) of the previous area or if the area is reduced. c. Changing or adding additional antennas within a previously permitted concealed building-mounted installation is exempt provided there is no visible change from the outside. d. Bird exclusionary devices may be added to towers and are not subject to height limitations. e. Additional ground equipment may be placed within an approved equipment enclosure, provided the height of the equipment does not extend above the screening fence. 2. An antenna that is designed to receive or send direct broadcast satellite service and/or broadband signals, or other means for providing internet service including direct-to- home satellite services, and that is one (1) meter or less in diameter or diagonal measurement, and when the antenna is attached to the residence or business that is utilizing the service. 3. An antenna that is designed to receive video programming services via multipoint distribution services, including multi-channel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one (1) meter or less in diameter or diagonal measurement. 4. An antenna that is designed to receive television broadcast signals. 5. Antennas for the receiving and sending of amateur radio devices or HAM radios, provided that the antennas meet the height requirements of the applicable zoning district, and are owned and operated by a Federally-licensed amateur radio station operator or are used exclusively for receive-only antennas. In order to reasonably accommodate licensed amateur radio operators as required by Federal Code of Regulations, 47 CFR Part 97, as amended, and Order and Opinion (PRB-1) of the Federal Communication Commission of September 1985, and RCW 35A.21.260, a licensed amateur radio operator may locate a tower not to exceed the height requirements of the applicable zoning district, provided the following requirements are met for such towers located in a residentially-zoned district: a. The tower and any antennas located thereon shall not have any lights of any kind on it and shall not be illuminated either directly or indirectly by any artificial means; b. The color of the tower and any antennas located thereon must all be the same and such that it blends into the sky, to the extent allowed under requirements set forth by the Federal Aviation Administration; c. No advertising logo, trademark, figurine or other similar marking or lettering shall be placed on the tower or any wireless communication facilities mounted or otherwise attached thereto or any building used in conjunction therewith; d. The tower shall be located a distance equal to or greater than its height from any existing residential structure located on adjacent parcels of property, including any attached accessory structures; Page 120 of 351 Ordinance No. ____ Page 7 of 24 e. A tower must be at least three-quarters of its height from any property line on the parcel of property on which it is located, unless a licensed engineer certifies that the tower will not collapse or that it is designed in such a way that, in the event of collapse, it falls within itself, and in that event, it must be located at least one-third of its height from any property line; f. No signs shall be used in conjunction with the tower, except for one sign not larger than 8½" high and 11" wide and as required by Federal regulations; g. Towers shall not be leased or rented to commercial users, and shall not otherwise be used for commercial purposes; and h. All towers must meet all applicable State and Federal statutes, rules, and regulations, including obtaining a building permit from the City, if necessary. 6. Emergency communications equipment during a declared public emergency, when the equipment is owned and operated by an appropriate public entity. 7. Wireless Communications Facilities (“WCFs”) used for temporary emergency communications in the event of a disaster, or emergency preparedness, and for any other public health or safety purpose, including, by way of illustration and not limitation, any communications systems utilized by first responders such as police or fire. 8. Any wireless internet facility that is owned and operated by a government entity. 9. Antennas and related equipment no more than 3 feet in height that are being stored, shipped or displayed for sale. 10. Radar systems for military and civilian communication and navigation. 11. Small wireless facilities as defined by POMC Section 20.29.030. 20.70.040 Permits Required. A. No person may place, construct, or modify a wireless communication facility subject to this Chapter without first having in place a permit issued in accordance with this Chapter. Except as otherwise provided herein, the requirements of this Chapter are in addition to the applicable requirements of POMC Title 20. B. Any application submitted pursuant to this Chapter shall be reviewed and evaluated by the Director for all projects located on public or private property. The Director of Public Works or his/her designee shall review all proposed wireless communication facilities that are totally within City right-of-way. If a project is both on private or public property and City right-of-way, the Community Development Director shall review the application. Regardless of whether the Community Development Director or the Director of Public Works is reviewing the application, all applications will be reviewed and evaluated pursuant to the provisions of this Chapter. C. The applicant is responsible for obtaining all other permits from any other appropriate governing body (i.e., Washington State Department of Labor and Industries, Federal Aviation Administration, etc.). For purposes of this chapter, the “applicant” is inclusive of the party who applies for permits and the party or parties will own, operate, or manage the wireless communication facility. D. This Chapter provides guidelines for the placement, construction, and modification of Page 121 of 351 Ordinance No. ____ Page 8 of 24 wireless communication facilities, which are not otherwise exempt as set forth in POMC Section 20.70.030. E. No provision of this Chapter shall be interpreted to allow the installation of a wireless communication facility to reduce the minimum parking or landscaping required on a site. F. Wireless communication facilities that are governed under this Chapter shall not be eligible for variances under POMC Chapter 20.28. Any request to deviate from this Chapter shall be based on the exceptions or waivers set forth in this Chapter. G. Third Party Expert Review. Applicants use various methodologies and analyses, including geographically-based computer software, to determine the specific technical parameters of the services to be provided utilizing the proposed wireless communication facilities, such as expected coverage area, antenna configuration, capacity, and topographic constraints that affect signal paths. In certain instances, a third party expert may be needed to review the engineering and technical data submitted by an applicant for a permit. The City may at its discretion require an engineering and technical review as part of a permitting process. The costs of the technical review shall be borne by the applicant. H. The selection of the third-party expert may be by mutual agreement between the applicant and the City, or at the discretion of the City, with a provision for the applicant and beneficially interested parties to comment on the proposed expert and review his/her qualifications. The third party expert review is intended to address interference and public safety issues and be a site-specific review of engineering and technical aspects of the proposed wireless communication facilities and/or a review of the applicants' methodology and equipment used, and is not intended to be a subjective review of the site which was selected by an applicant. Based on the results of the expert review, the City may require changes to the application. The expert review shall address the following: 1. The accuracy and completeness of submissions; 2. The applicability of analysis techniques and methodologies; 3. The validity of conclusions reached; 4. The viability of other sites in the City for the use intended by the applicant; and 5. Any specific engineering or technical issues designated by the City. I. No alterations or changes shall be made to plans approved by the Director, Director of Public Works, or Hearing Examiner without approval from the City. Minor changes which do not change the overall project may be approved by the Community Development Director as a minor modification. 20.70.050 Types of Permits-Priority--Restrictions. A. Applications will be reviewed based on the type of wireless communication facilities requested to be permitted. Each wireless communication facility requires the appropriate type of project permit review, as shown in Table A. In the event of uncertainty on the type of a wireless facility, the Community Development Director shall have the authority to determine Page 122 of 351 Ordinance No. ____ Page 9 of 24 how a proposed facility is incorporated into Table A. TABLE A Type of Permit Required, Based on Type of Zoning(1) Adding antennas to an existing or replacement height adjustment request beyond the limitations in the Spectrum Act (1) Zoning for any private/public property or right-of-way: Residential – R1, R2, R3, R4, R5, R6, RMU. Commercial and Public– NMU, BPMU, CMU, DMU, GMU, CC, CH, IF. PF, PR, CI, Industrial – LI, HI. (2) Provided the height of the tower or utility pole does not increase and the square footage of the enclosure area does not increase beyond the limits set forth in Section 6409 of the Spectrum Act. (3) An applicant may request to install a non-concealed building attached facility, under POMC Section 20.70.140. B. The priorities for the type of wireless communication facility shall be based upon their placement in Table A; the most desirable location for facilities are located toward the top of the table and least-desirable location for facilities are located toward the bottom of the table. Any application for a wireless communication facility must follow the hierarchy of Table A. For example, an applicant must demonstrate by engineering evidence that using a transmission tower co-location is not possible before moving to a utility pole replacement for co-location, Page 123 of 351 Ordinance No. ____ Page 10 of 24 and so forth, with the last possible siting option being a new tower or waiver request. C. The City's preferences for locating new wireless communication facilities are as follows: 1. Place antennas on existing or replacement structures, such as buildings, towers, water towers, or electrical transmission towers. 2. Place wireless communication facilities in non- residentially zoned districts and non- residential property. 3. Place antennas and towers on public property and on appropriate rights-of-way if practical, provided that no obligation is created herein for the City to allow the use of City property or public right-of-way for this purpose. 4. City Property/Public Rights-of-Way. The placement of personal wireless communication facilities on City-owned property and public rights-of-way will be subject to other applicable sections of the Port Orchard Municipal Code and review by other departments (i.e., Public Works, Parks and Recreation, etc.) and may require a facilities lease. 5. Wireless communication facilities shall not be permitted on property designated as landmark or as part of a historic district. D. Applicants shall submit all of the information required pursuant to POMC Section 20.24.030 and the following: 1. Type 1: Applicant shall submit: a. A completed application form provided by the Department of Community Development. b. Four sets of plans prepared by a design professional. The plans shall include a vicinity map, site map, architectural elevations, method of attachment, proposed screening, location of proposed antennas, and all other information which accurately depicts the proposed project. Minimum size is 8.5'' by 11". Plans shall be no greater than 24" x 36". a. A letter from the applicant outlining the proposed project and an evaluation from the applicant with regard to the City's Code requirements and whether the proposal qualifies for review under Section 6409 of the Spectrum Act. b. Information sufficient to determine whether a proposed facilities modification per POMC Section 20.70.200 would be a substantial change to an existing eligible support structure. c. Sensitive Area studies and proposed mitigation (if required). d. If an outdoor generator is proposed, a report prepared by an acoustical engineer demonstrating compliance with Chapter 173-60 WAC and POMC 9.24.050. e. SEPA Application (if required). 2. Type 2: Applicant shall submit all information required for a Type 1 application, plus the following: a. Four sets of photo simulations that depict the existing and proposed view of the proposed facility. b. Materials board for the screening material. c. If landscaping is proposed, four sets of a landscaping plan prepared by a Washington State-licensed landscape architect. Page 124 of 351 Ordinance No. ____ Page 11 of 24 d. Letter from a radio frequency engineer that demonstrates that the facility meets Federal requirements for allowed emissions. e. If the facility is located within a residential zone, a report from a radio frequency engineer explaining the need for the proposed wireless communication facility. Additionally, the applicant shall provide detailed discussion on why the wireless communication facility cannot be located within a commercial or industrial zone. 3. Type 3: The applicant shall submit all the information required for Type 1 and Type 2 applications, plus the following: a. All information required for new towers under POMC Section 20.70.060. b. The radio frequency engineer report shall include a discussion of the information required under POMC Section 20.70.060. c. Provisions for mailing labels for all property owners and tenants/residents within 500 feet of the subject property. d. Engineering plans for the proposed tower. e. A vicinity map depicting the proposed extent of the service area. f. A graphic simulation showing the appearance of the proposed tower and ancillary structures and ancillary facilities from five points within the impacted vicinity. Such points are to be mutually agreed upon by the Director of Community Development and applicant. All plans and photo simulations shall include the maximum build-out of the proposed facility to the extent such information is known by the applicant. g. Evidence that the tower has been designed to meet the minimum structural standards for wireless communication facilities for a minimum of three providers of voice, video or data transmission services, including the applicant, and including a description of the number and types of antennas the tower can accommodate, to the extent known by the applicant. 20.70.060 New Towers. A. New towers are not permitted within the City unless the Hearing Examiner finds that the applicant has demonstrated by a preponderance of the evidence that: 1. Alternates: No existing tower or structure, or other feasible site not requiring a new tower in the City, can accommodate the applicant's proposed wireless communication facility; and 2. Least intrusive: The proposed new wireless communication facility is designed and located in a manner that is, in consideration of the values, objectives and regulations set forth in this chapter, POMC Title 20, and the Comprehensive Land Use Plan, the least intrusive upon the surrounding area. B. The Hearing Examiner shall be the reviewing body on the application to construct a new tower and shall determine whether or not each of the above requirements is met. Examples of evidence demonstrating the foregoing requirements include, but are not limited to, the following: 1. That the tower height is the minimum necessary in order to achieve the coverage Page 125 of 351 Ordinance No. ____ Page 12 of 24 objective; 2. That no available existing towers or structures or alternative sites are located within the geographic area required to meet the applicant's engineering requirements to meet its coverage objective (regardless of the geographical boundaries of the City); 3. That available existing towers or structures are not of a sufficient height or could not feasibly be extended to a sufficient height to meet the applicant's engineering requirements to meet its coverage objective; 4. That available existing structures or towers do not have sufficient structural strength to support the applicant's proposed antenna and ancillary facilities; 5. That the applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing structures would cause interference with the applicant's proposed antenna; 6. That the fees, costs, or contractual provisions required by the owner or operator in order to share an existing tower or structure, or to locate at an alternative site, or to adapt an existing tower or structure or alternative site for sharing, are unreasonable. Costs exceeding new tower construction by 25% are presumed to be unreasonable; and/or the applicant demonstrates other limiting factors that render existing towers and structures or other sites unsuitable or unavailable. All radiofrequency (RF) engineering evidence must be provided and certified by a RF engineer and clearly demonstrate the evidence required. Any required structural engineering evidence shall be provided and certified by a Washington registered and qualified professional engineer. C. The Hearing Examiner, after holding a public hearing, shall either approve, approve with conditions, or deny the application, or remand the application back to staff for further investigation in a manner consistent with the Hearing Examiner order. 20.70.070 General Requirements. The following shall apply to all wireless communication facilities regardless of the type of facility: 1. Noise: Any facility that requires a generator or other device which will create noise must demonstrate compliance with Chapter 173-60 WAC and POMC 9.24.050. A noise report, prepared by an acoustical engineer, shall be submitted with any application to construct and operate a wireless communication facility that will have a generator or similar device. The City may require that the report be reviewed by a third party expert at the expense of the applicant. 2. Signage: Only safety signs or those mandated by other government entities may be located on wireless communication facilities. No other types of signs are permitted on wireless communication facilities. Page 126 of 351 Ordinance No. ____ Page 13 of 24 3. Parking: Any application must demonstrate that there is sufficient space for temporary parking for regular maintenance of the proposed facility. 4. Finish: A tower shall either maintain a galvanized steel finish or, subject to any applicable standards of the FCC, be painted a neutral color so as to reduce its visual obtrusiveness. 5. Design: The design of all buildings and ancillary structures shall use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natural setting and built environment. 6. Color: All antennas and ancillary facilities located on buildings or structures other than towers shall be of a neutral color that is identical to or closely compatible with the color of the supporting structure so as to make the antenna and ancillary facilities as visually unobtrusive as possible. 7. Lighting: Towers shall not be artificially lighted unless required by the FCC or other applicable authority. If lighting is required, the reviewing authority shall review the lighting alternatives and approve the design that would cause the least disturbance to the surrounding areas. No strobe lighting of any type is permitted on any tower. 8. Advertising: No advertising is permitted at wireless communication facility sites or on any ancillary structure or facilities equipment compound. 20.70.080 Specific Development Standards for Electrical Transmission Tower Co-Location. The following requirements shall apply: 1. Height: There is no height requirement for antennas that are located on electrical transmission towers. 2. Antenna aesthetics: There are no restrictions on the type of antennas located on the electrical transmission tower. The antennas must be painted to match the color of the electrical transmission tower. 3. Antenna intensity: There is no limit on the number of antennas that may be located on an electrical transmission tower structure. 4. Feed lines and coaxial cables: Feed lines and coaxial cables shall be attached to one of the legs of the electrical transmission tower. The feed lines and cables must be painted to match the color of the electrical transmission tower. 5. Cabinet equipment: Cabinet equipment shall be located directly under the electrical transmission tower where the antennas are located or a concealed location. The wireless communication equipment compound shall be fenced; the fence shall have a minimum height of six (6) feet and a maximum height of eight (8) feet. The fence shall include slats, wood panels, or other materials to screen the equipment from view. Barbed wire is not allowed. 6. Setbacks: Since the facility will be located on an existing electrical transmission tower, setbacks shall not apply. Page 127 of 351 Ordinance No. ____ Page 14 of 24 20.70.090 Specific Development Standards for Adding Antennas to Existing WCF Tower. The following requirements shall apply: 1. Height: The height must not exceed what was approved under the original application to construct the tower. If the height shall exceed what was originally approved, approval as a Type 2 decision is required, provided, however, that increases up to the limitation set forth in Section 6409 of the Spectrum Act shall be allowed. 2. Antenna aesthetics: Antennas shall be painted to match the color scheme of the tower. 3. Antenna intensity: There is no limit on the number of antennas that may be located on an existing tower. 4. Feed lines and coaxial cables: Feed lines and coaxial cables shall be located within the tower. Any exposed feed lines or coaxial cables (such as when extended out of the tower to connect to the antennas) must match the tower. 5. Cabinet equipment: A new cabinet shall be located within the equipment enclosure that was approved as part of the original application. If the applicant wishes to expand the equipment enclosure from what was approved by the City or County under the previous application beyond the increase limitations set forth in Section 64.09 of the Spectrum Act, the applicant shall seek a wireless communication facility (Type 2) application for only the equipment enclosure increase. 6. Setbacks: Setbacks shall not apply when an applicant installs new antennas on an existing tower and uses an existing equipment enclosure. If the equipment enclosure is increased, it must meet setbacks. 20.70.100 Concealed Building Mounted Development Requirements. The following requirements shall apply: 1. Height: The proposed facility must meet the height requirement of the applicable zoning category including, as applicable, allowed mechanical equipment encroachments consistent with POMC 20.40.050(2)(c). The antennas can qualify under POMC Section 20.127.360, "Roof- Mounted Mechanical Equipment", if the antennas are located in a church spire, chimney or fake chimney, elevator tower, mechanical equipment room, or other similar rooftop appurtenances usually required to be placed on a roof and not intended for human occupancy. Stand-alone antennas shall not qualify as rooftop appurtenances. 2. Antennas aesthetics: The antennas must be concealed from view by blending with the architectural style of the building. This could include steeple-like structures and parapet walls. The screening must be made out of the same material or complementary materials and be the same color as the building. Antennas shall be painted to match the color scheme of the building(s). 3. Feed lines and coaxial cables: Feed lines and cables should be located below the parapet of the rooftop. 4. Cabinet equipment: If cabinet equipment cannot be located within the building Page 128 of 351 Ordinance No. ____ Page 15 of 24 where the wireless communication facilities will be located, then the City's first preference is to locate the equipment on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six (6) foot-tall fence, and materials shall be used to screen the equipment from view. Barbed wire may not be used. 5. Setbacks: The proposed wireless communication facilities facility must meet the setback of the applicable zoning category where the facility is to be located. 20.70.110 Non-concealed Building Mounted Development Requirements. The following requirements shall apply: 1. Height: The proposed facility must meet the height requirements of the applicable zoning category. If the building where the facility is located is at or above the maximum height requirements, the antennas are permitted to extend a maximum of three (3) feet above the existing roof line. Non-concealed building mounted facilities shall not qualify as "Roof-Mounted Mechanical Equipment" under POMC Section 20.127.360. 2. Antenna aesthetics: The first preference for any proposed facility is to utilize flush- mounted antennas. Nonflush mounted antennas may be used when their visual impact will be negated by the scale of the antennas to the building. "Shrouds" are not required unless they provide a better visual appearance than exposed antennas. Antennas shall be painted to match the color scheme of the building(s). 3. Feed lines and coaxial cables: Feed lines and cables should be located below the parapet of the rooftop. If the feed lines and cables must be visible, they must match the color scheme of the building(s). 4. Cabinet equipment: If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then it must be located on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six (6) foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire may not be used. 20.70.120 Utility Pole Co-location. The following requirements shall apply: 1. Height: The height of a utility pole co-location is limited to 15 feet above the replaced utility pole, and may be not greater than 50 feet in height in residential zones. Within all other zones, the height of the utility pole is limited to 50 feet or the minimum height Page 129 of 351 Ordinance No. ____ Page 16 of 24 standards of the underlying zoning, whichever is greater. 2. Replacement pole: The replaced utility pole must be used by the owner of the utility pole to support its utility lines (phone lines or electric). A replaced utility pole cannot be used to provide secondary functions to utility poles in the area. 3. Pole aesthetics: The replaced utility pole must have the color and general appearance of the adjacent utility poles. 4. Pedestrian impact: The proposal shall not result in a significant change or cause degradation in the pedestrian environment. For replacement poles, the proposal shall be consistent with the City’s adopted public works engineering standards and specifications such that the ability to make future pedestrian improvements shall not be impacted. In addition, the location of the replacement pole shall be selected to reduce impacts to the current and future pedestrian environment. 5. Cabinet equipment: Unless approved by the Director of Public Works, all cabinet equipment and the equipment enclosure must be placed outside of City right-of-way. If located on a parcel that contains a building, the equipment enclosure must be located next to the building, or where it has the least visual impact on surrounding properties. The cabinet equipment must be screened from view. The screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six (6) foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire is not allowed. 6. Setbacks: Any portion of the wireless communication facilities located within City right-of-way is not required to meet setbacks. The City will evaluate setbacks on private property under the setback requirements set forth in POMC Section 20.70.170. 20.70.130 Towers-Specific Development Standards. The following requirements shall apply: 1. Height: Any proposed tower with antennas shall not exceed 70 feet without a height waiver as described in POMC 20.70.170. Bird exclusionary devices are not subject to height limitations. 2. Antenna and tower aesthetics: The applicant shall utilize a wireless communication concealed facility and shall use such methods as to help the tower to blend with the natural and built environment. The choice of concealing the wireless communication facility must be consistent with the overall use of the site. For example, having a tower appear like a flagpole would not be consistent if there are no buildings on the site. If a flag or other wind device is attached to the pole, it must be appropriate in scale to the size and diameter of the tower. 3. Setbacks: A facility that is used for wireless communications, must be set back from all property lines the greater of: a. Fifty (50) feet; or b. One hundred ten percent of the height from the highest engineered break point to the top of structure, as certified by a professional engineer. For Page 130 of 351 Ordinance No. ____ Page 17 of 24 example, a 100 foot pole with no breakpoint would require a 110 foot setback. If the breakpoint is located at the 50 foot level, then the setback would be 55 feet. However, if an exception is granted under POMC Section 20.70.170 with regard to height, the setback from all property lines of the proposed wireless communication facilities will increase two (2) feet for every one (1) foot in excess of the maximum permitted height in the zoning district. 4. Color: The color of the tower shall be based on the surrounding land uses. 5. Feed lines and coaxial cables: All feed lines and cables must be located within the tower. Feed lines and cables connecting the tower to the equipment enclosure, which are not located within the wireless communication facility equipment compound, must be located underground. 20.70.140 Request to Use Non-concealed Building Attached in Lieu of a Concealed Building Attached. The use of concealed building facilities shall have first priority in all residential and commercial zones. However, an applicant may request to construct a non-concealed building attached wireless communication facility in lieu of a concealed wireless communication facility. The following criteria shall be used: 1. Due to the size of the building and the proposed location of the antennas, the visual impact of the exposed antennas will be minimal in relation to the building. 2. Cables are concealed from view and any visible cables are reduced in visibility by sheathing or painting to match the building where they are located. 3. Cabinet equipment is adequately screened from view. 4. Due to the style or design of the building, the use of a concealed facility would reduce the visual appearance of the building. 5. The building where the antennas are located is at least 200 feet from any body of water or waterway that is designated as either shoreline or critical area. 20.70.150 Landscaping/Screening. A. The visual impacts of wireless communication facilities shall be mitigated and softened through landscaping or other screening materials at the base of the tower, facility equipment compound, equipment enclosures, and ancillary structures, with the exception of wireless communication facilities located on transmission towers, or if the antenna is mounted flush on an existing building or camouflaged as part of the building and other equipment is housed inside an existing structure. The Community Development Director, Director of Public Works or Hearing Examiner, as appropriate, may reduce or waive the standards for those sides of the wireless communication facility that are not in public view, when a combination of existing vegetation, topography, walls, decorative fences or other features achieve the same degree of screening as the required landscaping; in locations where the visual impact of the tower would be minimal; and in those locations where large wooded lots and natural growth around Page 131 of 351 Ordinance No. ____ Page 18 of 24 the property perimeter may be a sufficient buffer, provided that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping. B. Landscaping shall be installed on the outside of fences. Existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute for or as a supplement to landscaping or screening requirements, provided that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping. The following requirements apply: 1. Type A landscaping consistent with the requirements of POMC 20.128.060 (A) shall be placed around the perimeter of the equipment cabinet enclosure, except that a maximum ten (10)-foot portion of the fence may remain without landscaping in order to provide access to the enclosure. 2. The landscaping area shall be a minimum of ten (10) feet in width around the perimeter of the enclosure. 3. The applicant shall utilize evergreens that shall be a minimum of six (6) feet tall at the time of planting. 4. Applicant shall utilize irrigation or an approved maintenance schedule that will ensure that the plantings are established after two years from the date of planting. C. The applicant shall replace any unhealthy or dead plant materials in conformance with the approved landscaping development proposal and shall maintain all landscape materials for the life of the facility. In the event that landscaping is not maintained at the required level, the Community Development Director, after giving thirty (30) days advance written notice, may maintain or establish the landscaping at the expense of the owner or operator and bill the owner or operator for such costs until such costs are paid in full. 20.70.160 Zoning Setback Exceptions. A. Generally, wireless communication facilities placed on private property must meet setbacks of the underlying zoning. However, in some circumstances, allowing modifications to setbacks may better achieve the goal of this Chapter of concealing such facilities from view. B. The Community Development Director or Hearing Examiner, depending on the type of application, may permit modifications to be made to setbacks when: 1. An applicant for a wireless communication facility can demonstrate that placing the facility on certain portions of a property will provide better screening and aesthetic considerations than provided under the existing setback requirements; or 2. The modification will aid in retaining open space and trees on the site; or 3. The proposed location allows for the wireless communication facility to be located a greater distance from residentially-zoned properties. C. This zoning setback modification cannot be used to waive/modify any required setback required under the State Building Code or Fire Code or used to reduce the safety of the facility. Page 132 of 351 Ordinance No. ____ Page 19 of 24 20.70.170 Height Waivers. A. Where the Hearing Examiner finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the height limitations of the Land Use and Development Regulations, or the purpose of these regulations may be served to a greater extent by an alternative proposal, it may approve an adjustment to these regulations; provided that the applicant demonstrates that the adjustments are consistent with the values, objectives, standards, and requirements of this Chapter, POMC Title 20, and the Comprehensive Land Use Plan, and demonstrate the following: 1. A particular and identifiable hardship exists, or a specific circumstance warrants the granting of an adjustment. Factors to be considered in determining the existence of a hardship shall include, but not be limited to: a. Topography and other site features; b. Availability of alternative site locations; c. Geographic location of property; and d. Size/magnitude of project being evaluated and availability of co-location. B. In approving the adjustment request, the Hearing Examiner may impose such conditions as it deems appropriate to assure consistency with the values, objectives, standards, and requirements of this Chapter, POMC Title 20, and the Comprehensive Land Use Plan and to ensure that the granting of the height adjustment will not be detrimental to the public safety, health, or welfare, or injurious to other property, and will promote the public interest. C. A petition for any such adjustment shall be submitted, in writing, by the applicant with the application for Hearing Examiner review. The petition shall state fully the grounds for the adjustment and all of the facts relied upon by the applicant. 20.70.190 Removal of Abandoned Wireless Communication Facilities. Any antenna or tower that, after the initial operation of the facility, is not used for the purpose for which it was intended (based on the original application) and such non-use lasts for a continuous period of twelve (12) months or longer, shall be considered abandoned, and the owner of such antenna or tower shall remove same within ninety (90) days of receipt of notice from the City notifying the owner of such abandonment. Failure to remove such abandoned tower or commence removal within ninety (90) days of such notice shall result in the City declaring the antenna and/or tower a public nuisance. If there are two or more users of a single tower, then this section shall not become effective until all users cease using the tower. 20.70.200 Standards for Eligible Facilities Modifications. This section implements § 6409 of the "Middle Class Tax Relief and Job Creation Act of 2012" (the "Spectrum Act", PL-112- 96; codified at 47 U.S.C. § 1455(a)) see also 47 CFR § 1.6100 - Wireless Facility Modifications, which requires the City to approve any eligible facilities request Page 133 of 351 Ordinance No. ____ Page 20 of 24 for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station. The intent is to exempt eligible facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act, while preserving the City's right to continue to enforce and condition approvals under this chapter on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety. A. Definitions. 1. "Base station" shall mean and refer to the structure or equipment at a fixed location that enables wireless communications licensed or authorized by the FCC, between user equipment and a communications network. The term does not encompass a tower as defined in this chapter or any equipment associated with a tower. a. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. b. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks). c. The term includes any structure other than a tower that, at the time an eligible facilities modification application is filed with the City under this chapter, supports or houses equipment described in subparagraphs (a) and (b) of POMC Section 20.70.200.A.1, and that has been reviewed and approved under the applicable zoning or siting process, or under another State, county or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. d. The term does not include any structure that, at the time a completed eligible facilities modification application is filed with the City under this section, does not support or house equipment described in subparagraphs (a) and (b) of POMC Section 20.70.200.A.1. 2. "Eligible facilities modification" shall mean and refer to any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and that does not result in a substantial change in the physical dimensions of an eligible support structure. 3. "Eligible support structure" shall mean and refer to any existing tower or base station as defined in this chapter, provided it is in existence at the time the eligible facilities modification application is filed with the City under this chapter. 4. "Existing" shall mean and refer to a constructed tower or base station that was reviewed and approved under the applicable zoning or siting process and lawfully constructed. 5. "Proposed facilities modification" shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving: a. collocation of new transmission equipment; Page 134 of 351 Ordinance No. ____ Page 21 of 24 b. removal of transmission equipment; or c. replacement of transmission equipment. 6. "Site" shall mean and refer to the current boundaries of the leased or owned property surrounding a tower (other than a tower in the public rights-of-way) and any access or utility easements currently related to the site and, for other eligible support structures, shall mean and be further restricted to, that area in proximity to the structure and to other transmission equipment already deployed on the ground. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a State or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the section 6409(a) process. 7. "Substantial Change". A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria: a. For towers not in the public rights-of-way, it increases the height of the tower by more than ten percent (10%) or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty (20) feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent (10%) or more than ten (10) feet, whichever is greater. Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act. b. For towers not in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty (20) feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six (6) feet. c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four (4) cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than ten percent (10%) larger in height or overall volume than any other ground cabinets associated with the structure. d. It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than thirty (30) feet in any direction. The site boundary from which the thirty (30) feet is measured excludes any access or utility easements currently related to the site; e. It would defeat the concealment elements of the eligible support Page 135 of 351 Ordinance No. ____ Page 22 of 24 structure; or f. It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment provided, however, that this limitation does not apply to any modification that is non- compliant only in a manner that would not exceed the thresholds identified in this section. 8. "Tower" shall mean and refer to any structure built for the sole or primary purpose of supporting any antennas and their associated facilities, licensed or authorized by the FCC, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. 9. “Break Point Technology” shall mean towers designed with break point technology engineer points on the top portion of the tower to fold over onto itself in extreme stress such as earthquake and extraordinary high winds, rather than fall its full length from the base. 10. "Transmission Equipment" shall mean and refer to equipment that facilitates transmission for any wireless communication service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. B. Proposed facilities modification applications are not subject to the application requirements set forth in POMC Section 20.24.020 but may still require construction permits such as grading, street excavation, and building permits, and will also require approval of traffic control plans if traffic will be impacted. C. City decisions on eligible facilities modifications shall be issued within sixty (60) days from the date the application is received by the City, subtracting any time between the City's notice of incomplete application or request for additional information and the applicant's resubmittal. Following a supplemental submission, the City will respond to the applicant within ten (10) days, stating whether the additional information is sufficient to complete review of the application. This timing supersedes Chapter 20.24 POMC. D. If the City fails to approve or deny an eligible facilities modification within the time frame for review, the applicant may notify the City in writing that the review period has expired, and that the application has therefore been deemed granted. In such case, all limitations of this Section 20.170.200 and compliance with applicable provisions of building, structural, electrical, and safety codes and noise regulations shall automatically be considered conditions of such approval. E. Applicants and the City may bring claims related to Section 6409 (a) to any court of competent jurisdiction. 20.70.210 Expiration of Wireless Facility Permits. Page 136 of 351 Ordinance No. ____ Page 23 of 24 A wireless facility permit shall automatically expire three (3) years after a Notice of Decision approving the permit is issued unless a building permit conforming to plans for which the wireless facility permit was granted is obtained within that period of time. If a building permit is not required for the proposed work, such as changing antennas on an existing tower, then the substantial construction of the proposed work shall be completed within one (1) year after a Notice of Decision approving the permit is issued. The Director of Community Development may authorize a longer period for completion of work if the applicant can demonstrate why additional time is required and submits a written request for extension prior to expiration of the wireless facilities permit. SECTION 3. Conflict. In the event of a conflict between this Ordinance, and any Ordinance or regulation of the City, the provisions of this Ordinance shall control, except that the provisions of the City’s critical areas code, shoreline master program or any International Building Code shall supersede. SECTION 4. Corrections. Upon the approval of the city attorney, the city clerk and/or code publisher is authorized to make any necessary technical corrections to this ordinance, including but not limited to the correction of scrivener’s/clerical errors, references, ordinance numbering, section/subsection numbers, and any reference thereto. SECTION 5. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of this ordinance. SECTION 6. Effective Date. This ordinance shall be published in the official newspaper of the city and shall take full force and effect five (5) days after the date of publication. A summary of this ordinance in the form of the ordinance title may be published in lieu of publishing the ordinance in its entirety. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this 10th day of May 2022. Robert Putaansuu, Mayor ATTEST: Brandy Wallace, MMC, City Clerk Page 137 of 351 Ordinance No. ____ Page 24 of 24 APPROVED AS TO FORM: SPONSOR: ___________________________ Charlotte A. Archer, City Attorney Jay Rosapepe, Councilmember PUBLISHED: EFFECTIVE DATE: Page 138 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City Council is asked to consider the adoption of proposed chapter POMC 20.72 Small Cell Wireless Communication Facilities and amend POMC 20.39.270. The purpose of the codes is to regulate the placement, construction, and modification of small cell wireless telecommunication facilities, to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in Port Orchard. Proposed chapter POMC 20.72 includes standards for the design and aesthetics associated with these facilities. POMC 20.39.270 is to be amended to create consistency with existing code language and the proposed language in POMC 20.70 and POMC 20.72. The City of Port Orchard SEPA Responsible Official issued a Determination of Nonsignificance (DNS) on April 1, 2022. The City did not receive written comments in response to the DNS and the DNS was not appealed. Proper notice was provided to the Washington State Department of Commerce regarding the intent to adopt the regulations. Notice of Hearing for the Planning Commission consideration of the draft code was provided on March 21, 2022 consistent with the requirements of POMC 20.25. The Department of Community Development received comments regarding the draft Ordinance from wireless communication providers and incorporated some of the suggested changes into the draft code prior to the April 5, 2022 Planning Commission public hearing. On April 5, 2022 the Planning Commission held a public hearing to take public testimony and subsequently recommended approval of the proposed ordinances to the City Council, but asked staff to continue working with the providers to refine the draft language prior to City Council action. The code before the City Council is the result of a responsive effort with the providers and staff to provide a code which provides a predictable permitting process that meets the needs of the providers while considering the impacts wireless facilities may have on the community. Relationship to Comprehensive Plan: Implementation of the adopted City of Port Orchard Comprehensive Plan Land Use Element. Recommendation: Staff recommends that the City Council vote to approve an ordinance adopting Chapter POMC 20.72 Small Cell Wireless Communication Facilities and amending POMC 20.39.270. Motion for Consideration: “I move to adopt an ordinance adopting Chapter POMC 20.72 Small Cell Wireless Communication Facilities and amending POMC 20.39.270.” Page 139 of 351 Business Item 7B Page 2 of 2 Fiscal Impact: The proposed ordinance is not expected to have a fiscal impact on the city. Alternatives: Do not approve the Ordinances; request changes to the Ordinances. Attachments: Ordinance adopting POMC 20.72 Small Cell Wireless Communication Facilities and amending POMC 20.39.270. Page 140 of 351 ORDINANCE NO. ____ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ADDING A NEW CHAPTER 20.72 THE PORT ORCHARD MUNICIPAL CODE REGARDING ZONING FOR SMALL CELL WIRELESS COMMUNICATIONS FACILITIES, INCLUDING ESTABLISHING PERMITTING PROCEDURES, PERFORMANCE STANDARDS, EXEMPTIONS, DEFINTIONS, CONDITIONS AND CRITERIA FOR APPROVAL, STANDARDS FOR DIFFERENT LAND USE ZONES; AMENDING SECTION 20.39.270 OF THE PORT ORCHARD MUNICIPAL CODE FOR CONSISTENCY WITH CHAPTER 20.72 AND CHAPTER 20.70; PROVIDING FOR SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the use of data by smart phones and other wireless devices has grown exponentially in the last ten years; and WHEREAS, utility poles within the public right-of-way have been identified by the FCC as a primary resource for the deployment of small cell facilities which are intended to increase the density and accessibility of radio frequency signals employed by such devices; and WHEREAS, the City Council deems it to be in the public interest to revise its zoning code requirements to specifically deal with small wireless telecommunications facilities to be located in the right-of-way; and WHEREAS, the City Council updated its Wireless Communications Facilities code by adopting a new Chapter 20.70 POMC and believes it is in the public interest to also adopt a new Chapter 20.72 POMC to address Small Telecommunications Facilities; and WHEREAS, in order to make Section 20.39.270 of the Port Orchard Municipal Code consistent with these new chapters, revisions are needed; and WHEREAS, in accordance with RCW 36.70A.106 and WAC 365-196-630, a notice of intent to adopt the proposed new development regulations was sent to the State of Washington Department of Commerce and to other state agencies to allow for a 60-day review and comment period, which comment period ended prior to adoption of this ordinance; and WHEREAS, on April 1, 2022, the City’s SEPA official issued a determination of nonsignificance for the proposed amendments, which was published and provided to the public in accordance with POMC 20.160.190 and WAC 197-11-510, and there have been no appeals; and WHEREAS, on March 21, 2022, the City issued a Notice of Public Hearing for the proposed amendments creating new POMC Chapter 20.70, Chapter 20.72, and amending POMC 20.39.270 which was published and provided to the public in accordance with POMC 20.25.050; and Page 141 of 351 Ordinance No. ____ Page 2 of 18 WHEREAS, the City worked collaboratively with the telecommunications providers to improve the Ordinances; and WHEREAS, the Planning Commission conducted a public hearing on the substance of this Ordinance on April 5, 2022, and recommended its adoption by the City Council; and WHEREAS, the Land Use Committee of the City Council considered this Ordinance on April 20, 2022; and WHEREAS, the City Council opted to conduct a 2nd public hearing on the substance of this Ordinance on May 10, 2022; and WHEREAS, on April 18, 2022, the City issued a Notice for a 2nd Public Hearing for the proposed amendments creating new POMC Chapter 20.70, Chapter 20.72, and amending POMC 20.39.270 which was published and provided to the public in accordance with POMC 20.25.050; and WHEREAS, the City Council, after careful consideration of the recommendation from the Planning Commission, all public comment, and the Ordinance, finds that this Ordinance is consistent with the City’s Comprehensive Plan and development regulations, the Growth Management Act, and that the amendments herein are in the best interests of the residents of the City and further advance the public health, safety and welfare; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Recitals. The recitals set forth in this ordinance are hereby incorporated as if fully set forth herein. SECTION 2. Adoption of Chapter 20.72 Small Wireless Communication Facilities. A new chapter 20.72 entitled “Small Wireless Communication Facilities” is hereby added to the Port Orchard Municipal Code to read as follows: CHAPTER 20.72 SMALL WIRELESS COMMUNICATION FACILITIES Sections: 20.72.010 Purpose and Scope 20.72.020 Exemptions 20.72.030 Definitions 20.72.040 Federal regulatory requirements 20.72.050 Small wireless facility application process 20.72.060 Small wireless facility application requirements 20.72.070 Small wireless facility review criteria and process 20.72.080 Small wireless facility permit requirements 20.72.090 Small wireless facility modification 20.72.100 Small wireless facility aesthetic, concealment, and design standards Page 142 of 351 Ordinance No. ____ Page 3 of 18 20.72.110 Removal of abandoned small wireless facility 20.72.120 Revocation of permit 20.29.10 Purpose and Scope A. The purpose of this chapter, in addition to implementing the general purposes of the Comprehensive Plan and development regulations, is to regulate the activities of permitting, placement, construction and modification of small wireless facilities in order to protect the health, safety and welfare of the public while not unreasonably interfering with the development of a competitive wireless telecommunications marketplace within the City. B. This chapter provides permitting and review regulations as well as aesthetic, design and concealment standards for the construction of small wireless facilities both inside and outside of the public right-of-way. It also provides siting options at appropriate locations within the City to support existing communications technologies, to adapt to new technologies as needed, and to minimize associated safety hazards and visual impacts. The siting of small wireless facilities on existing buildings and structures, colocation of facilities on a single support structure and visual mitigation strategies are encouraged to preserve neighborhood aesthetics and reduce visual clutter in the City. 20.72.020 Exemptions The following facilities are exempt from the provisions of this chapter and shall be permitted consistent with the applicable development standards outlined in the Land Uses Table in POMC 20.39.040: 1. Wireless Communications Facilities (“WCFs”) used for temporary emergency communications in the event of a disaster, or emergency preparedness, and for any other public health or safety purpose, including, by way of illustration and not limitation, any communications systems utilized by first responders such as police or fire. 2. Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC. 3. Citizen band radios or antennas operated by federal licensing amateur (“ham”) radio operators. 4. Satellite dish antennas less than two meters in diameter, including direct-to- home satellite services, when used as secondary use of the property. 5. Automated meter reading (“AMR”) facilities for collecting utility meter data for use in the sale of utility services, except for WIP and other antennas greater than two feet in length, so long as the AMR facilities are within the scope of activities permitted under a valid franchise agreement between the utility service provider and the city. 6. Eligible facilities requests. See POMC Section 20.70.200. 20.72.030 Definitions For the purposes of this chapter, the following terms shall have the meaning ascribed to them below. 1. “Antenna(s)” in the context of small wireless facilities and consistent with 47 CFR 1.1320(w) and 1.6002(b) means an apparatus designed for the purpose of emitting radiofrequency (“RF”) radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless and any commingled information services. For the purposes of this definition, the term “antenna” does not include an Page 143 of 351 Ordinance No. ____ Page 4 of 18 unintentional radiator, mobile station, or device authorized by 47 CFR Title 15. 2. “Antenna equipment,” consistent with 47 CFR 1.1320(d), means equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with an antenna, located at the same fixed location as the antenna, and when collocated on a structure, are mounted or installed at the same time as the antenna. 3. “Applicant” means any person submitting an application for a small wireless facility permit pursuant to this Chapter. 4. “Collocation” means: a. Mounting or installing antenna equipment on a preexisting structure; and/or b. Modifying a structure for the purpose of mounting or installing antenna equipment on that structure. 5. “Director” means the Community Development Director or designee. 6. “Equipment enclosure” means a facility, shelter, cabinet, or vault used to house and protect electronic or other associated equipment necessary for processing wireless communication signals. “Associated equipment” may include, for example, air conditioning, backup power supplies, and emergency generators. 7. “FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level. 8. “Permittee” means a person who has applied for and received a small wireless facility permit pursuant to this chapter. 9. “Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services. 10. “Person” includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals. 11. “Public right-of-way” or “right-of-way” means land acquired or dedicated for public roads and streets but does not include: a. State highways; b. Land dedicated for road, streets, and highways not opened and not improved for motor vehicle use by the public; c. Structures, including poles and conduits, located within the right-of-way; d. Federally granted trust lands or forest board trust lands; e. Lands owned or managed by the state parks and recreation commission; or f. Federally granted railroad rights-of-way acquired under 43 U.S.C. 912 and related provisions of federal law that are not open for motor vehicle use. 12. “Service provider” shall be defined in accord with RCW 35.99.010(6). “Service provider” shall include those infrastructure companies that provide telecommunications services or equipment to enable the construction of wireless communications. 13. “Small wireless facility” shall mean a wireless telecommunication facility that meets both of the following qualifications: a. Each antenna is located inside an antenna enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and b. All other equipment associated with the facility (excluding antennas) is cumulatively no more than 28 cubic feet in volume. Page 144 of 351 Ordinance No. ____ Page 5 of 18 Provided, however, if there is a conflict between this definition and the definition contained under federal law (47 CFR 1.6002(l)) then the federal law definition shall apply. 14. “Stealth Technique” means stealth techniques specifically designated as such at the time of the original approval of the small wireless facility for the purposes of rendering the appearance of the small wireless facility as something fundamentally different than a small wireless facility including but not limited to the use of non-reflective materials, appropriate colors, and/or a concealment canister. 15. “Structure” means a pole, tower, base station, or other building, whether or not it has an existing antenna equipment, that is used or to be used for the provision of personal wireless service (on its own or commingled with other types of services). 16. “Telecommunications service” shall be defined in accord with RCW 35.99.010(7). 17. “Tower” means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communication services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services, and fixed wireless services such as microwave backhaul and the associated site. 18. “Traffic signal pole” means any structure designed and used primarily for support of traffic signal displays and equipment, whether for vehicular or non-motorized users. 19. “Transmission equipment” means equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communication services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. 20. “Unified enclosure” means a small wireless facility providing concealment of antennas and equipment within a single enclosure. 21. “Utility pole” means a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, or lighting for streets, parking lots, or pedestrian paths. 22. “Wireless communications facilities” or “WCF” means facilities used for personal wireless services. 23. “Wireline” means services provided using a physically tangible means of transmission including, without limitation, wire or cable, and the apparatus used for such transmission. 20.72.040 Federal Regulatory Requirements A. These provisions shall be interpreted and applied in order to comply with the provisions of federal law. By way of illustration and not limitation, any small wireless facility that has been certified as compliant with all FCC and other government regulations regarding the human exposure to radio frequency emissions will not be denied on the basis of RF radiation concerns. B. Small wireless facilities shall be subject to the requirements of this Code to the extent that such requirements: 1. Do not unreasonably discriminate among providers of functionally equivalent services; and 2. Do not prohibit or have the effect of prohibiting the ability of any entity to provide intrastate or interstate wireless service. Page 145 of 351 Ordinance No. ____ Page 6 of 18 20.72.050 Small Wireless Facility Application Process A. Applicability. Any application for a small wireless facility both inside and outside of the public right-of-way shall comply with the application requirements for a small wireless facility permit described in this chapter. For small wireless facilities inside the right-of-way, the applicant must also comply with the requirements pursuant to Title 12 POMC. B. Completeness. An application for a small wireless facility is not complete until the applicant has submitted all the applicable items required by POMC Section 20.72.060 and, to the extent relevant, has submitted all the applicable items in POMC Section 20.72.050.C and the City has confirmed that the application is complete. Franchisees with a valid franchise for small wireless facilities may apply for a small wireless permit for the initial or additional phases of a small wireless facilities deployment at any time subject to the commencement of a new completeness review time period for permit processing. C. Application Components. The Director is authorized to establish franchise and other application forms to gather the information required from applicants to evaluate the application and to determine the completeness of the application as provided herein. The application shall include the following components as applicable: 1. Franchise. If any portion of the applicant’s facilities are to be located in the right- of-way, the applicant shall apply for, and receive approval of a franchise, consistent with the requirements in Title 12 POMC. An application for a franchise may be submitted concurrently with an application for small wireless facility permit(s). 2. Small Wireless Facility Permit. The applicant shall submit a small wireless facility permit application as required in the small wireless facility application requirements established in POMC Section 20.72.060 and pay the applicable permit fee as set forth in the fee schedule adopted by resolution of the City Council and which may be amended by the City Council from time to time. 3. Associated Application(s) and Checklist(s). Any application for a small wireless permit which contains an element not categorically exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW and POMC Title 20. Further, any application proposing small wireless facilities in a shoreline area (pursuant to POMC Chapter 20.164) or in any critical area (pursuant to POMC Chapter 20.162) shall indicate why the application is exempt or comply with the review processes in such codes. Applications for small wireless facilities for new poles shall comply with the requirements in POMC Section 20.72.100.E. 4. Leases. An applicant who desires to attach a small wireless facility on any utility pole, light pole, or other structure or building owned by the City shall obtain a lease as a component of its application. Utility poles and the use of other public property, structures or facilities including, but not limited to any park land or facility, any utility land or facility, require City Council approval of a lease or master lease agreement. 20.72.060 Small Wireless Facility Application Requirements The following information shall be provided by all applicants for a small wireless permit. A. The application shall provide specific locational information including GIS coordinates of all proposed small wireless facilities and specify where the small wireless facilities will utilize existing, replacement or new poles, towers, existing buildings and/or other structures. The applicant shall specify ground-mounted equipment, conduit, junction boxes and fiber and power connections necessary for and intended for use in the small wireless facilities system regardless of whether the additional facilities are to be constructed by the applicant or leased Page 146 of 351 Ordinance No. ____ Page 7 of 18 from a third party to the extent known by the applicant at the time of application. The applicant shall provide detailed schematics and visual renderings of the small wireless facilities, including engineering and design standards. The application shall have sufficient detail to identify: 1. The location of overhead and, to the extent applicable, underground public utilities, telecommunication, cable, water, adjacent lighting, sewer drainage and other lines and equipment within 50 feet of the proposed project area (which the project area shall include the location of the fiber source and power source). Further, the applicant shall include all existing and proposed improvements related to the proposed location, including but not limited to poles, driveways, ADA ramps, equipment cabinets, street trees and structures within 50 feet of the proposed project area. 2. The specific trees, structures, improvements, facilities, lines and equipment, and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate and a landscape plan for protecting, trimming, removing, replacing, and restoring any trees or significant landscaping to be disturbed during construction. The applicant is discouraged from cutting/pruning, removing or replacing trees, and if any such tree modifications are proposed the applicant must comply with applicable provisions of Chapter 20.129 POMC. 3. The applicant’s plan for fiber and power service, all conduits, cables, wires, handholds, junctions, meters, disconnect switches and any other ancillary equipment or construction necessary to construct the small wireless facility, to the extent to which the applicant is responsible for installing such fiber and power service, conduits, cables, and related improvements. Where another party is responsible for installing such fiber and power service, conduits, cables, and related improvements, applicant’s construction drawings shall include such utilities to the extent known at the time of application, but at a minimum applicant must indicate how it expects to obtain power and fiber service to the small wireless facility. 4. A photometric analysis of the roadway and sidewalk within 150 feet of the existing light if the site location includes a new or replacement light pole. 5. Compliance with the applicable aesthetic requirements pursuant to POMC Section 20.72.100. B. The applicant must show written approval from the owner of any pole or structure for the installation of its small wireless facilities on such pole or structure. Such written approval shall include approval of the specific pole. For City-owned poles or structures, the applicant shall obtain a lease from the City prior to or concurrent with the small wireless facility permit application so the City can evaluate the use of a specific pole. C. The applicant is encouraged to batch the small wireless facility sites within an application in a contiguous service area and/or with similar designs. D. The applicant shall submit a sworn affidavit signed by a Radio Frequency (RF) engineer with knowledge of the proposed project affirming that the small wireless facility will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small wireless facility will operate. If facilities that generate RF radiation necessary to the small wireless facility are to be provided by a third party, then the small wireless permit shall be conditioned on an RF certification showing the cumulative impact of the RF emissions from the entire installation. The applicant may provide one emissions report for the entire batch of small wireless facility applications if the applicant is using the same small wireless facility configuration for all installations within that batch or may submit one emissions report for each subgroup installation identified in the batch. E. The applicant shall provide proof of FCC or other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed. Page 147 of 351 Ordinance No. ____ Page 8 of 18 F. A professional engineer licensed by the State of Washington shall certify in writing, over his or her seal, that construction plans of the small wireless facilities and structure or pole and foundation are designed to reasonably withstand wind and seismic loads as required by applicable codes. G. A right-of-way use permit application as required by POMC Section 12.04.030. H. Proof of a valid City of Port Orchard business license. I. Recognizing that small wireless facility technology is rapidly evolving, the Director is authorized to adopt and publish standards for the structural safety of City-owned poles and structures, and to formulate and publish application questions for use when an applicant seeks to attach to City-owned poles and structures. J. Such other information as the Director, in his/her reasonable discretion, shall deem appropriate to effectively evaluate the application based on technical, engineering and aesthetic considerations. 20.72.070 Small Wireless Facility Review Criteria and Process A. The following provisions relate to the review of applications for a small wireless facility permit: 1. In any zone, upon application for a small wireless permit, the City will permit small wireless facilities only when the application meets the criteria of Chapter 20.72 POMC. 2. Vertical clearance shall be reviewed by the Director to ensure the small wireless facilities will not pose a hazard to other users of the rights-of-way. 3. Replacement poles, new poles, and ground- mounted equipment shall only be permitted pursuant to the applicable standards in POMC Section 20.72.100. 4. No equipment shall be operated so as to produce noise in violation of POMC 9.24.050 or Chapter 173-60 WAC. 5. Small wireless facilities may not encroach onto or over private property or property outside of the right-of-way without the property owner’s express written consent pursuant to POMC Section 20.72.100.A.1. B. Decision. All small wireless facility applications shall be reviewed and approved or denied by the Director. The Director’s decision shall be final and is not subject to appeal under City code or further review by the City. C. Eligible Facilities Requests. Small wireless facilities may be expanded pursuant to an eligible facility request so long as the expansion: 1. does not defeat the specifically designated stealth techniques; and 2. incorporates the aesthetic elements required as conditions of approval set forth in the original small wireless facility approval in a manner consistent with the rights granted an eligible facility; and 3. does not exceed the conditions of a small wireless facility as defined by 47 CFR 1.6002(l). D. Public Notice. The City shall provide notice of a complete application for a small wireless permit on the City’s website with a link to the application. Prior to construction, the applicant shall provide notice of construction to all impacted property owners within 100 feet of any proposed small wireless facility via a doorhanger that shall include an email contact and telephone number for the applicant. Notice is for the public’s information and is not a part of a hearing or part of the land use appeal process. E. Withdrawal. Any applicant may withdraw an application submitted at any time, provided the withdrawal is in writing and signed by all persons who signed the original Page 148 of 351 Ordinance No. ____ Page 9 of 18 be deemed null and void. If such withdrawal occurs prior to the Director’s decision, then reimbursement of fees submitted in association with said application shall be reduced to withhold the amount of actual and objectively reasonable City costs incurred in processing the application prior to time of withdrawal. If such withdrawal is not accomplished prior to the Director’s decision, there shall be no refund of all or any portion of such fee. F. Supplemental Information. Failure of an applicant to provide supplemental information as requested by the Director within 60 days of notice by the Director shall be grounds for denial of that application unless an extension period has been approved by the Director. If no extension period has been approved by the Director, the Director shall notify the applicant in writing that the application is denied. G. Consolidated Permit. The issuance of a small wireless permit grants authority to construct small wireless facilities in the rights-of-way in a consolidated manner to allow the applicant, in most situations, to avoid the need to seek duplicative approval by both the Public Works and the Community Development departments. As an exercise of police powers pursuant to RCW 35.99.040(2), the small wireless facility permit is not a right-of-way use permit, but instead a consolidated public works and land use permit and the issuance of a small wireless facility permit shall be governed by the time limits established by federal law for small wireless facilities. The general standards applicable to the use of the rights-of-way described in Chapter 12.04 POMC shall apply to all small wireless facility permits. 20.72.080 Small Wireless Facility Permit Requirements A. Permit Compliance. The permittee shall comply with all of the requirements within the small wireless facility permit. B. Post-Construction As-Builts. Upon request, the permittee shall provide the City with as- builts of the small wireless facilities within 30 days after construction of the small wireless facility, demonstrating compliance with the permit, visual renderings submitted with the permit application and any site photographs taken. C. Construction Time Limit. Construction of the small wireless facility must be completed within 12 months after the approval date by the City. The permittee may request one extension of no more than six months, if the permittee provides an explanation as to why the small wireless facility cannot be constructed within the original 12-month period. D. Site Safety and Maintenance. The permittee must maintain the small wireless facilities in safe and working condition. The permittee shall be responsible for the removal of any graffiti or other vandalism of the small wireless facility and shall keep the site neat and orderly, including but not limited to following any maintenance or modifications on the site. E. Operational Activity. The permittee shall commence operation of the small wireless facility no later than six months after installation. The permittee may request one extensions for an additional six-month period if the permittee can show that such operational activity is delayed due to inability to connect to electrical or backhaul facilities. 20.72.090 Small Wireless Facility Modification A. If a permittee desires to modify their small wireless facilities, including but not limited to expanding or changing the antenna type, increasing the equipment enclosure, placing additional pole-mounted or ground-mounted equipment, or modifying the stealth techniques, then the permittee shall apply for a new small wireless permit. B. A small wireless permit shall not be required for routine maintenance and repair of a small wireless facility within the rights- of-way, or the replacement of an antenna or equipment of similar size, weight, and height; provided, that such replacement does not defeat the stealth Page 149 of 351 Ordinance No. ____ Page 10 of 18 techniques used in the original small wireless facility and does not impact the structural integrity of the pole. Further, a small wireless permit shall not be required for replacing equipment within the equipment enclosure or reconfiguration of fiber or power to the small wireless facilities. An annual blanket right-of-way permit will be required for such routine maintenance, repair, or replacement and can cover all facilities owned by the applicant. C. Even if a modification is exempt under this Section, any work on a small wireless facility in or near the right of way which will impact traffic will require an approved traffic management plan prior to commencing work. 20.72.100 Small Wireless Facility Aesthetic, Concealment, and Design Standards A. All small wireless facilities shall conform with the following general aesthetic, concealment, and design standards, as applicable: 1. Except for locations in the right-of-way, small wireless facilities are prohibited on any property containing a residential use in a residential zone; provided that where small wireless facilities are intended to be located more than 400 feet from a right-of-way and within an access easement over residential property, the location may be allowed if: a. the applicant affirms they have received an access easement from the property owner to locate the facility in the desired location; and b. the property owner where the facility will be installed has authority to grant such permission to locate the facility and related equipment at the designated location pursuant to the terms of the access easement; and c. the installation is allowed by, and consistent with, the access easement; and d. such installation will not frustrate the purpose of the easement or create any access or safety issue; and e. the location is in compliance with all land use regulations such as, but not limited to, setback requirements. 2. In the event power is later undergrounded in an area where small wireless facilities are located above ground on utility poles, the small wireless facilities shall be removed and may be replaced with a facility meeting the design standards for new poles in POMC Section 20.72.100.E. 3. Ground-mounted equipment in the rights-of-way is prohibited, unless such facilities are placed underground, or the applicant can demonstrate that pole-mounted or undergrounded equipment is technically infeasible. If ground-mounted equipment is necessary, then the applicant shall submit a stealth technique plan substantially conforming to the applicable standards in POMC Section 20.72.100.E.3 and comply with the Americans with Disabilities Act (“ADA”), City construction standards, and state and federal regulations in order to provide a clear and safe passage within the public rights-of-way. Generators located in the rights-of-way are prohibited. 4. No signage, message, or identification other than the manufacturer’s identification or identification required by governing law is allowed to be portrayed on any antenna or equipment enclosure. Any permitted signage shall be located on the equipment enclosures and be of the minimum amount possible to achieve the intended purpose (no larger than four by six inches); provided, that signs may be permitted as stealth technique where appropriate and safety signage as required by applicable laws, regulations, and standards is permitted. 5. Antennas and related equipment shall not be illuminated except for security reasons, required by a federal or state authority, or unless approved as part of the stealth Page 150 of 351 Ordinance No. ____ Page 11 of 18 techniques requirements pursuant to POMC Section 20.72.100.E.3. 6. The design standards in this chapter are intended to be used solely for the purpose of concealment and siting. Nothing contained in this chapter shall be interpreted or applied in a manner which dictates the use of a particular technology. When strict application of these requirements would render the small wireless facility technically infeasible or otherwise have the effect of prohibiting wireless service, alternative forms of aesthetic design or concealment may be permitted which provide similar or greater protections from negative visual impacts to the streetscape. B. General Pole Standards. In addition to complying with the applicable general standards in POMC Section 20.72.100.A, all small wireless facilities on any type of utility pole shall conform to the following general pole design requirements as well as the applicable pole specific standards: 1. The preferred location of a small wireless facility on a pole is the location with the least visible impact. 2. The City may consider the cumulative visual effects of small wireless facilities mounted on poles within the rights-of- way when assessing proposed siting locations so as to not adversely affect the visual character of the City. This provision shall neither be applied to limit the number of permits issued when no alternative sites are reasonably available nor to impose a technological requirement on the applicant. 3. Small wireless facilities are not permitted on traffic signal poles unless denial of the siting could be a prohibition or effective prohibition of the applicant’s ability to provide telecommunications service in violation of 47 USC 253 and 332. 4. Replacement poles and new poles shall comply with the Americans with Disabilities Act, City construction and sidewalk clearance standards, City development standards, City ordinances, and state and federal laws and regulations in order to provide a clear and safe passage within the rights-of-way. Further, the location of any replacement or new pole must: be physically possible, comply with applicable traffic warrants, not interfere with utility or safety fixtures (e.g., fire hydrants, traffic control devices), and not adversely affect the public welfare, health, or safety. 5. Replacement poles shall be located as near as possible to the existing pole, but in no event further than five feet from the existing pole, and the existing pole shall be removed. 6. Side arm mounts for antennas or equipment must be the minimum extension necessary, and for wooden poles may be no more than 12 inches off the pole, and for non- wooden poles no more than six inches off the pole. 7. The use of the pole for the siting of a small wireless facility shall be considered secondary to the primary function of the pole. If the primary function of a pole serving as the host site for a small wireless facility becomes unnecessary, the pole shall not be retained for the sole purpose of accommodating the small wireless facility and the small wireless facility and all associated equipment shall be removed. C. Non-wooden Pole Design Standards. In addition to complying with the applicable general standards in POMC Section 20.72.100.A and POMC Section 20.72.100.B, small wireless facilities attached to existing or replacement non-wooden poles inside or outside the right-of- way shall conform to the following design criteria: 1. Upon adoption of a City standard small wireless facility pole design(s) within the City’s Infrastructure Design and Construction Standards, an applicant shall first consider using or modifying the standard pole design to accommodate its small wireless facility without substantially changing the outward visual and aesthetic character of the design. The applicant, upon a showing that use or modification of the standard pole design is either technically or Page 151 of 351 Ordinance No. ____ Page 12 of 18 physically infeasible, or that the modified pole design will not comply with the City’s ADA or sidewalk clearance requirements and/or would violate electrical or other safety standards, may deviate from the adopted standard pole design and use the design standards as described in this POMC Section 20.72.100.C., subsections 2 through 8. In addition, if the City has not yet adopted such Infrastructure Design and Construction Standards, then subsection 2 through 8 will apply. 2. Antennas and the associated equipment enclosures (including disconnect switches and other appurtenant devices) shall be fully concealed within the pole, unless such concealment is technically infeasible, or is incompatible with the pole design, then the antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or flush- mounted to the pole, meaning no more than six inches off of the pole, and must be the minimum size necessary for the intended purpose, not to exceed the volumetric dimensions of small wireless facilities. If the equipment enclosure is permitted on the exterior of the pole, the applicant is required to place the equipment enclosure behind any banners or road signs that may be on the pole; provided, that such location does not interfere with the operation of the banners or signs, or the small wireless facility. For purposes of this section, “incompatible with the pole design” may include a demonstration by the applicant that the visual impact to the pole or the streetscape would be reduced by placing the antennas and equipment exterior to the pole. 3. The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole. 4. All conduit, cables, wires, and fiber must be routed internally in the pole. Full concealment of all conduit, cables, wires, and fiber is required within mounting brackets, shrouds, canisters, or sleeves if attaching to exterior antennas or equipment. 5. An antenna on top of an existing pole may not extend more than 6 feet above the height of the existing pole and the diameter may not exceed 16 inches, measured at the top of the pole, unless the applicant can demonstrate that more space is needed. The antennas shall be integrated into the pole design so that they appear as a continuation of the original pole, including colored or painted to match the pole, and shall be shrouded or screened to blend with the pole except for canister antennas, which shall not require screening. To the extent technically feasible, all cabling and mounting hardware/brackets from the bottom of the antenna to the top of the pole shall be fully concealed and integrated with the pole. 6. Any replacement pole shall substantially conform to the design of the pole it is replacing (including but not limited to color, shape and style) or the neighboring pole design standards utilized within the contiguous right-of-way. 7. The height of any replacement pole and antenna(s) may not extend more than 10 feet above the height of the existing pole or the minimum additional height necessary; provided, that the height of the replacement pole cannot be extended further by additional antenna height. 8. The diameter of a replacement pole shall comply with the City’s setback and sidewalk clearance requirements and shall, to the extent technically feasible, not be more than a 25 percent increase of the existing pole measured at the base of the pole, unless additional diameter is needed in order to conceal equipment within the base of the pole. D. Wooden Pole Design Standards. In addition to complying with the applicable general standards in POMC Section 20.72.100.A and POMC Section 20.72.100.B, small wireless facilities attached to existing or replacement wooden utility poles and other wooden poles inside or outside the right-of-way shall conform to the following design criteria: Page 152 of 351 Ordinance No. ____ Page 13 of 18 1. The wooden pole at the proposed location may be replaced with a taller pole for the purpose of accommodating a small wireless facility; provided, that the replacement pole shall not exceed a height that is a maximum of 10 feet taller than the existing pole, unless a further height increase is required and confirmed in writing by the pole owner and that such height extension is the minimum extension possible to provide sufficient separation and/or clearance from electrical and wireline facilities. 2. A pole extender may be used instead of replacing an existing pole, but may not increase the height of the existing pole by more than 10 feet, unless a further height increase is required and confirmed in writing by the pole owner and that such height increase is the minimum extension possible to provide sufficient separation and/or clearance from electrical and wireline facilities. A “pole extender” as used herein is an object affixed between the pole and the antenna for the purpose of increasing the height of the antenna above the pole. The pole extender shall be painted to approximately match the color of the pole and shall substantially match the diameter of the pole measured at the top of the pole. 3. Replacement wooden poles must either match the approximate color and materials of the replaced pole or shall be the standard new wooden pole used by the pole owner in the City. 4. The diameter of a replacement pole shall comply with the City’s setback and sidewalk clearance requirements and shall not be more than a 25 percent increase of the existing utility pole measured at the base of the pole or the otherwise standard size used by the pole owner. 5. All cables and wires shall be routed through conduits along the outside of the pole. The outside conduit shall be colored or painted to match the pole. The number of conduits shall be minimized to the number technically necessary to accommodate the small wireless facility. 6. Antennas, equipment enclosures, and all ancillary equipment, boxes and conduit shall be colored or painted to match the approximate color of the surface of the wooden pole on which they are attached. 7. Antennas shall not be mounted more than 12 inches from the surface of the wooden pole. 8. Antennas should be placed in an effort to minimize visual clutter and obtrusiveness. Multiple antennas are permitted on a wooden pole; provided, that each antenna shall not be more than three cubic feet in volume. 9. A canister antenna may be mounted on top of an existing or replacement wooden pole, which may not exceed the height requirements described in POMC Section 20.72.100.D.1. A canister antenna mounted on the top of a wooden pole shall not exceed 16 inches in diameter, measured at the top of the pole and, to the extent technically feasible, shall be colored or painted to match the pole. The canister antenna must be placed to look as if it is an extension of the pole. In the alternative, the applicant may install a side-mounted canister antenna, so long as the inside edge of the antenna is no more than 12 inches from the surface of the wooden pole. All cables shall be concealed either within the canister antenna or within a sleeve between the antenna and the wooden pole. 10. The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole. 11. An omnidirectional antenna may be mounted on the top of an existing wooden pole, provided such antenna is no more than four feet in height and is mounted directly on the top of a pole or attached to a sleeve made to look like the exterior of the pole as close to the top of the pole as technically feasible. All cables shall be concealed within the sleeve between Page 153 of 351 Ordinance No. ____ Page 14 of 18 the bottom of the antenna and the mounting bracket. 12. All related antenna equipment, including but not limited to ancillary equipment, radios, cables, associated shrouding, microwaves, and conduit which are mounted on wooden poles, shall not be mounted more than six inches from the surface of the pole, unless a further distance is technically required and is confirmed in writing by the pole owner. 13. Equipment for small wireless facilities must be attached to the wooden pole, unless otherwise permitted to be ground mounted pursuant to POMC Section 20.72.100.A.3. The equipment must be placed in the smallest enclosure possible for the intended purpose. The equipment enclosure and all other wireless equipment associated with the utility pole, including wireless equipment associated with the antenna, and any preexisting associated equipment on the pole, may not exceed 28 cubic feet. Multiple equipment enclosures may be acceptable if designed to more closely integrate with the pole design and do not cumulatively exceed 28 cubic feet. The applicant is encouraged to place the equipment enclosure(s) behind any banners or road signs that may be on the pole; provided, that such location does not interfere with the operation of the banners or signs, or the small wireless facility. 14. An applicant who desires to enclose both its antennas and equipment within one unified enclosure may do so; provided, that such enclosure is the minimum size necessary for its intended purpose and the enclosure and all other wireless equipment associated with the pole, including wireless equipment associated with the antenna and any preexisting associated equipment on the pole, do not exceed 28 cubic feet. The unified enclosure may not be placed more than six inches from the surface of the pole, unless a further distance is required and confirmed in writing by the pole owner. To the extent possible, the unified enclosure shall be placed so as to appear as an integrated part of the pole or behind banners or signs; provided, that such location does not interfere with the operation of the banners or signs. E. Standards for small wireless facilities on new poles in the rights-of-way. In addition to complying with the applicable general standards in POMC Section 20.72.100.A and POMC Section 20.72.100.B, small wireless facilities proposed to be attached to new poles shall comply with the following: 1. New poles within the rights-of-way are only permitted if the applicant can establish that: a. The proposed small wireless facility cannot be located on an existing utility pole, electrical transmission tower, or on a site outside of the public rights-of-way such as a public park, public property, building, transmission tower or in or on a nonresidential use in a residential zone, whether by roof or panel mount or separate structure; and b. The proposed small wireless facility receives approval for a stealth technique design, as described in POMC Section 20.72.100.E.3; and c. The proposed small wireless facility also complies with the Shoreline Management Act, Growth Management Act, and State Environmental Policy Act, if applicable; and d. No new poles shall be located in a critical area or associated buffer required by the City’s Critical Areas ordinance, Chapter 20.162 POMC, except when determined to be exempt pursuant to said ordinance. 2. An application for a new pole is subject to administrative review by the Director. 3. All new poles shall conform to the City’s standard pole design adopted in the City’s Infrastructure Design and Construction Standards. If no existing metered service is available, the applicant shall provide new metered electrical service. If the City’s standard pole design is technically infeasible, or such standards have not yet been adopted by the City, then the new pole shall meet the following: Page 154 of 351 Ordinance No. ____ Page 15 of 18 a. The stealth technique design shall include the design of the screening, fencing, or other concealment technology for the pole, equipment enclosure, and all related transmission equipment or facilities associated with the proposed small wireless facility, including but not limited to fiber and power connections. b. The stealth technique design should seek to minimize the visual obtrusiveness of the small wireless facility. The proposed pole or structure should have similar designs to existing neighboring poles in the rights-of-way, including similar height to the extent technically feasible. If the proposed small wireless facility is placed on a replacement pole in an area with design standards, then the replacement pole shall be of the same general design as the pole it is replacing, unless the Director otherwise approves a variation due to aesthetic or safety concerns. Any stealth technique design for a small wireless facility on a decorative pole should attempt to mimic the design of such pole and integrate the small wireless facility into the design of the decorative pole. Other stealth technique methods include, but are not limited to, integrating the installation with architectural features or building design components; utilization of coverings or concealment devices of similar material, color, and texture—or the appearance thereof—as the surface against which the installation will be seen or on which it will be installed; landscape design; or other camouflage strategies appropriate for the type of installation. Applicants are required to utilize designs in which all conduit and wires are installed internally within the structure. Further, applicant designs should, to the extent technically feasible, comply with the generally applicable design standards adopted pursuant to POMC Section 20.72.100.A. c. If the Director has already approved a stealth technique design either for the applicant or another small wireless facility along the same public right-of-way or for the same pole type, then the applicant shall utilize a substantially similar stealth technique design, unless it can show that such stealth technique design is not technically feasible, or that such design would undermine the generally applicable design standards adopted pursuant to POMC Section 20.72.100.A. d. Even if an alternative location is established pursuant to POMC Section 20.72.100.E.1.a, the Director may determine that a new pole in the right-of-way is in fact a superior alternative based on the impact to the City, the stealth technique design, the City’s Comprehensive Plan and the added benefits to the community. e. Prior to the issuance of a permit to construct a new pole or ground-mounted equipment in the right-of-way, the applicant must obtain a master lease agreement from the City to locate such new pole or ground-mounted equipment. This requirement also applies to replacement poles that are taller than the replaced pole, when the overall height of the replacement pole and the proposed small wireless facility is more than 60 feet. F. Standards for small wireless facilities attached to cables. In addition to complying with the applicable general standards in POMC Section 20.72.100.A, all small wireless facilities mounted on existing cables strung between existing utility poles shall conform to the following standards: 1. Each strand-mounted facility shall not exceed three cubic feet in volume; 2. Only one strand-mounted facility is permitted per cable between any two existing poles on an existing cable; 3. The strand-mounted devices shall be placed as close as feasible to the nearest utility pole, in no event more than five feet from the pole unless that location is technically infeasible or is not allowed by the pole owner for safety clearance; 4. No strand-mounted device shall be located in or above the portion of the roadway open to vehicular traffic; Page 155 of 351 Ordinance No. ____ Page 16 of 18 5. Ground-mounted equipment to accommodate a shared mounted facility is not permitted except when placed in preexisting equipment cabinets or required by a third party electrical service provider; and 6. Pole-mounted equipment shall comply with the requirements of POMC Section 20.72.100.A and POMC Section 20.72.100.B. 7. Such strand-mounted devices must be installed to cause the least visual impact and without excess exterior cabling or wires (other than the original strand). G. Standards for small wireless facilities attached to existing buildings. In addition to complying with the applicable general standards in POMC Section 20.72.100.A, all small wireless facilities attached to existing buildings shall conform to the following design criteria: 1. Small wireless facilities may be mounted to the sides of a building if the antennas do not interrupt the building’s architectural theme. 2. The interruption of architectural lines or horizontal or vertical reveals is discouraged. 3. New architectural features such as columns, pilasters, corbels, or other ornamentation that conceal antennas may be used if it complements the architecture of the existing building. 4. Small wireless facilities shall utilize the smallest mounting brackets necessary in order to provide the smallest offset from the building. 5. Skirts or shrouds shall be utilized on the sides and bottoms of antennas in order to conceal mounting hardware, create a cleaner appearance, and minimize the visual impact of the antennas. Exposed cabling/wiring is prohibited. 6. To the extent technically feasible, small wireless facilities shall be textured and colored to match the adjacent building surfaces. 20.72.110 Removal of Abandoned Small Wireless Facility Any small wireless facility that, after the initial operation of the facility, is not used for the purpose for which it was intended at the time of filing of the application for a continuous period of 12 months shall be considered abandoned, and the owner of such facility shall remove same within 90 days of receipt of notice from the City notifying the owner of such abandonment. Failure to remove such abandoned facility shall result in the City declaring the facility a public nuisance. If there are two or more users of a single pole or structure, then this section shall not become effective as to require removal of the pole/structure/tower itself until all users cease using the pole/structure/tower. 20.72.120 Revocation of Permit A permit issued under this chapter may be revoked, suspended or denied for any one or more of the following reasons: 1. Failure to comply with any federal, state, or local laws or regulations. 2. Failure to comply with the terms and conditions imposed by the City on the issuance of a permit. 3. When the permit was procured by fraud, false representation, or omission of material facts. 4. Failure to comply with federal standards for RF emissions. Page 156 of 351 Ordinance No. ____ Page 17 of 18 SECTION 3. Section 20.39.270 of the Port Orchard Municipal Code is hereby amended to read as follows: 20.39.270 Wireless Telecommunication facilities. (1) “Wireless telecommunication facility” and “wireless communication facility” both means a facility for the provision of radio waves or wireless telephone or data services and includes the following: (a) “Amateur radio operator tower” means a facility used for personal, noncommercial radio licensed by the Federal Communications Commission. (b) “Small cell wireless telecommunication facility” is a facility that meets the definition contained in POMC 20.72.030. means a wireless telecommunication facility that meets both of the following qualifications: (i) Each antenna is located inside an antenna enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and (ii) All other equipment associated with the facility (excluding antennas) is cumulatively no more than 28 cubic feet in volume. (c) “Wireless telecommunication tower” means any mast, pole, monopole, lattice tower or other structure designed and primarily used to support antennas as further defined in POMC 20.70.200.B and 20.72.030. (2) Small cell wireless telecommunication facilities shall be installed in accordance with the city’s adopted Public Works and Engineering Standards and Specifications (PWESS) and shall meet the requirements of Chapter 20.72 POMC. (3) Wireless communication facilities, other than small wireless facilities, shall be installed in accordance with the requirements of Chapter 20.70 POMC. SECTION 4. Conflict. In the event of a conflict between this Ordinance, and any Ordinance or regulation of the City, the provisions of this Ordinance shall control, except that the provisions of the City’s critical areas code, shoreline master program or any International Building Code shall supersede. SECTION 5. Corrections. Upon the approval of the city attorney, the city clerk and/or code publisher is authorized to make any necessary technical corrections to this ordinance, including but not limited to the correction of scrivener’s/clerical errors, references, ordinance numbering, section/subsection numbers, and any reference thereto. Page 157 of 351 Ordinance No. ____ Page 18 of 18 SECTION 6. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of this ordinance. SECTION 7. Effective Date. This ordinance shall be published in the official newspaper of the city and shall take full force and effect five (5) days after the date of publication. A summary of this ordinance in the form of the ordinance title may be published in lieu of publishing the ordinance in its entirety. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this 10th day of May 2022. Robert Putaansuu, Mayor ATTEST: Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: SPONSOR: ___________________________ Charlotte A. Archer, City Attorney Jay Rosapepe, Councilmember PUBLISHED: EFFECTIVE DATE: Page 158 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City has negotiated a development agreement for transportation impact fee credits with Sidney Road Townhomes, L.L.C. This agreement, if approved, would provide transportation impact fee credits to the developer in exchange for the developer designing, constructing and funding transportation improvements within and near the Haven Townhomes development, located at 4801 Glenwood Road SW (The future townhomes will be addressed from Sidney Road SW). The Haven Townhomes development consists of approximately 114 multi-family dwellings across 20 townhome-style buildings, a residential amenity facility, off-street parking for approximately 305 vehicles, landscaping, and associated site improvements normal and expected to multifamily residential development. The proposal is currently under review consistent with applicable Port Orchard Municipal Code requirements and the Public Works Engineering Standards and Specifications. The City of Port Orchard’s Responsible Official issued and Mitigated Determination of Non-significance for the development on March 11, 2022. The transportation improvements described in the Development Agreement include one half of the widened Sidney Avenue SW from Glenwood Road to just north of Ruby Creek, including travel lane, bike lanes, curb, gutter, sidewalk, street lighting, landscaping strip, and crosswalk including curb ramps. POMC 20.26 (Development Agreements) outlines the process for development agreement approval. Developers seeking a development agreement, must submit an application. In this case, the application for the development agreement was filed on April 13, 2022. The proposed development agreement is related to the Haven Townhomes Land Disturbing Activity Permit (PW21-079). If the ordinance for the Development Agreement is approved subsequent to the public hearing, the Developer would be eligible to receive transportation fee credit associated with the development. The developer shall pay the required transportation impact fees at the time of building permit issuance where the value for transportation impact fees associated with the development is currently calculated at $315,949.20. The developer shall be required to pay either the maximum transportation impact fee or the actual cost of improvement construction, whichever is less. Relationship to Comprehensive Plan: The Development Agreement includes a portion of the Sidney Road SW transportation project identified as Project 2026-2039 Tier 2 2.05 in the City’s adopted Transportation Improvement Program (TIP), which is incorporated into the Comprehensive Plan by reference. Page 159 of 351 Staff Report 7C Page 2 of 2 Recommendation: Staff recommends that the City Council adopt an ordinance authorizing the mayor to execute a development agreement with Sidney Road Townhomes, LLC. Suggested Motion: “I move to adopt an ordinance authorizing the mayor to execute a development agreement with Sidney Road Townhomes, LLC as presented.” Fiscal Impact: The proposed agreement will result in the developer constructing a portion of a project listed on the City’s Transportation Improvement Program saving the city money and staff resources. The dedication of the transportation facilities will result in the ongoing maintenance of public infrastructure. Alternatives: Do not approve the Development Agreement; request changes to the Development Agreement. Attachments: Ordinance; 2022 Development Agreement; Exhibits to 2022 Development Agreement. Page 160 of 351 ORDINANCE NO. ___ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT WITH SIDNEY ROAD TOWNHOMES, L.L.C. FOR THE DEVELOPMENT OF CERTAIN TRANSPORTATION IMPROVEMENTS; PROVIDING FOR SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to RCW 36.70B.170, the City Council has the authority to review and enter into development agreements that govern the development and use of real property within the City; and WHEREAS, the City Council has adopted standards and procedures governing the City’s use of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code (POMC); and WHEREAS, Sidney Road Townhomes, L.L.C. (“Sidney Road”) is developing a 6.92 acre Property in the City with a multi-family development consisting of 114 multifamily units across 20 townhome-style building, a residential amenity building, parking for 306 vehicles, landscaping, outdoor amenity areas, and associated site improvements (collectively, the “Development Project”); and WHEREAS, associated the Development Project, Sidney Road proposes to construct at its expense, a portion of a City transportation improvement defined as 2026-2039 Tier 2 Transportation Improvement Project #2.05 “Sidney Road Widening” on Sidney Road SW as defined herein as the “Transportation Improvement Project”, which is eligible for a transportation impact fee credit pursuant to RCW 82.02.060(4) and POMC 20.182.080; and WHEREAS, the Transportation Improvement Project is necessary and is required to serve the Development; and WHEREAS, the Transportation Improvement Project also provides a benefit to the general public; and WHEREAS, the Development Agreement will govern the development of the Transportation Improvement Project and the respective transportation impact credits that will result from Sidney Road undertaking this Transportation Improvement Project; and WHEREAS, the Development Agreement is attached to this Ordinance as “Exhibit A”; and WHEREAS, on March 11, 2022, the City’s SEPA official issued a determination of non- significance for the proposed Amendment of the Development Agreement and there have been no appeals; and Page 161 of 351 Ordinance No.___ Page 2 of 3 WHEREAS, on May 10, 2022, the City Council held a public hearing on the proposed Amendment of the Development Agreement, and (comments received/not received, etc); and WHEREAS, the City Council, after careful consideration of the Development Agreement and all public comments and testimony, finds that the Development Agreement is consistent with the City’s Comprehensive Plan and development regulations, the Growth Management Act, Chapter 36.70A RCW, and that the amendments herein are in the best interests of the residents of the City; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. Findings. The City Council adopts all of the “Whereas” sections of this ordinance and all “Whereas” sections of the Development Agreement as findings in support of this ordinance. SECTION 2. Authorization. The City Council approves of and authorizes the Mayor to execute an Amendment of the with Sidney Road Townhomes, L.L.C. as provided in “Exhibit A” of this Ordinance. SECTION 3. 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 of constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 4. Corrections. Upon the approval of the city attorney, the city clerk and/or code publisher is authorized to make any necessary technical corrections to this Ordinance, including but not limited to the correction of scrivener’s/clerical errors, references, Ordinance numbering, section/subsection numbers, and any reference thereto. SECTION 5. Effective Date. This Ordinance shall be published in the official newspaper of the city and shall take full force and effect five(5) days after posting and publication as required by law. A summary of this Ordinance may be published in lieu of publishing the entire Ordinance, as authorized by state law. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this 10th day of May 2022. Robert Putaansuu, Mayor Page 162 of 351 Ordinance No.___ Page 3 of 3 ATTEST: Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: SPONSOR: Charlotte A. Archer, City Attorney Shawn Cucciardi, Councilmember PUBLISHED: EFFECTIVE DATE: EXHIBIT A: SIDNEY ROAD TOWNHOMES, L.L.C. DEVELOPMENT AGREEMENT FOR THE DEVELOPMENT AND FUNDING OF CERTAIN TRANSPORTATION IMPROVEMENTS Page 163 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 1 of 16 1577936.4 - 366922 -0043 [PROPOSED] DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PORT ORCHARD AND SIDNEY ROAD TOWNHOMES L.L.C. FOR THE DEVELOPMENT AND FUNDING OF CERTAIN TRANSPORTATION IMPROVEMENTS THIS DEVELOPMENT AGREEMENT is made and entered into this day of , 2022, by and between the City of Port Orchard, a non-charter, optional code Washington municipal corporation, hereinafter the “City,” and Sidney Road Townhomes L.L.C., a Washington limited liability company, hereinafter the “Owner” (individually, a “Party” and collectively, the “Parties”). The Parties hereby agree as follows: RECITALS WHEREAS, the Washington State Legislature has authorized the execution of a development agreement between a local government and a person having ownership or control of real property within its jurisdiction (RCW 36.70B.170(1)); and WHEREAS, a development agreement must set forth the development standards and other provisions that shall apply to, govern, and vest the development, use and mitigation of the development of the real property for the duration specified in the agreement (RCW 36.70B.170(1)); and WHEREAS, a development agreement must be consistent with the applicable development regulations adopted by a local government planning under chapter 36.70A RCW (RCW 36.70B.170(1)); and WHEREAS, Port Orchard adopted Chapter 20.26 of the Port Orchard Municipal Code (“POMC” or “Code”) which establishes the standards and procedures for Development Agreements in Port Orchard; and WHEREAS, Chapter 20.26 POMC is consistent with State law; and WHEREAS, the Owner has applied for a Development Agreement under Chapter 20.26 POMC on April 13, 2022 and such Agreement has been processed consistently with the POMC and State law; and WHEREAS, this Development Agreement by and between the City of Port Orchard and the Owner (hereinafter the “Development Agreement” or “Agreement”), relates primarily to the development of property owned by Owner at 4801 Glenwood Road SW (Kitsap County Tax Parcel #102301-1-053-2000) (hereinafter, the “Property”); and WHEREAS, the Owner proposes to develop the 6.92 acre Property with a multi-family Page 164 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 2 of 16 1577936.4 - 366922 -0043 development consisting of 114 multifamily units across 20 townhome-style buildings, a residential amenity building, parking for 306 vehicles, landscaping, outdoor amenity areas, and associated site improvements (collectively, the “Development Project” or City Permit No. PW PW21-079); and WHEREAS, the City is undertaking review of the Development Project pursuant to the POMC and has undertaken State Environmental Policy Act (“SEPA”) review for the Development Proposal with the issuance of a Mitigated Determination of Non-significance issued on March 11, 2022 (“MDNS”). The MDNS for the Development Project was not timely appealed; and WHEREAS, associated the Development Project, the Owner proposes to construct at its expense, a portion of a City transportation improvement defined as 2026-2039 Tier 2 Transportation Improvement Project #2.05 “Sidney Road Widening” on Sidney Road SW as defined herein as the “Transportation Improvement Project”, which is eligible for a transportation impact fee credit pursuant to RCW 82.02.060(4) and POMC 20.182.080; and WHEREAS, the Transportation Improvement Project is necessary and is required to serve the Development; and WHEREAS, the Transportation Improvement Project also provides a benefit to the general public; and WHEREAS, this Agreement governs the development of the Transportation Improvement Project and the respective transportation impact credits that will result from the Owner undertaking this Transportation Improvement Project; and WHEREAS, except with regard to this Transportation Improvement Project and the respective applicable impact fee credits, this Agreement does not establish or modify the standards or conditions for the underlying development which is being undertaken in accordance with applicable code and regulations; and WHEREAS, in consideration of the benefits conferred by this new Agreement, which reflect the current plans of both the City and the Owner and include a transportation impact fee credit calculation and method for determining any parks impact fee credits, the Parties deem it in their best interests to enter into this Agreement; and WHEREAS, the City Council held a public hearing on May 10, 2022 regarding this Agreement; and WHEREAS, after a public hearing, by Ordinance No. [xxx], the City Council authorized the Mayor to sign this Agreement with the Owner. Page 165 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 3 of 16 1577936.4 - 366922 -0043 AGREEMENT Section 1. The Property. The Property comprises 4801 Glenwood Road SW (Kitsap County Tax Parcel #102301-1-053-2000). The Property is described on Exhibit A which is attached hereto and incorporated herein by this reference as if set forth in full. A map of the Property is shown Exhibit B on which is attached hereto and incorporated herein by this reference as if set forth in full. Section 2. Transportation Improvement Project. Pursuant to this Agreement, Owner shall be responsible for the construction of the Transportation Improvement Project as defined herein. a) Transportation Improvement Project. Owner shall construct a portion the Sidney Road SW Project 2026-2039 Tier 2 2.05 (Ordinance 067-21) (defined herein as the Transportation Improvement Project) as shown in Exhibit C. The roadway portion constructed shall include one half of the widened Sidney Avenue SW from Glenwood Road to just north of Ruby Creek, including travel lane, bike lanes, curb, gutter, sidewalk, street lighting, landscaping strip, and crosswalk including curb ramps. The Transportation Improvement Project shall serve the Property, amongst other properties within the vicinity, and shall provide connectivity and capacity for the City. The Transportation Improvement Project shall be eligible for transportation impact fee credits as provided in Section 11 of this Agreement. b) Transportation Impact Fee Credit Applicability. The Transportation Improvement Project will serve the Property and the impact fee credits authorized by this Agreement are only applicable to pending Building Permit applications 22-026 through 22-046 for the properties identified on Exhibit B. Section 3. Definitions. As used in this Agreement, the following terms, phrases, and words shall have the meanings and be interpreted as set forth in this Section. a) “Adopting Ordinance” means the Ordinance which approves this Agreement, as required by RCW 36.70B.200 and Chapter 20.26 POMC. b) “Commence construction” as to the Transportation Improvement Project means that the City has issued all required permit(s) and the Owner has deployed construction equipment and personnel to the site of the Transportation Improvement Project. c) “Completion” as to the Transportation Improvement Project means compliance with the tasks described in Section 10. d) “Council” or “City Council” means the duly elected legislative body governing the City of Port Orchard. Page 166 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 4 of 16 1577936.4 - 366922 -0043 e) “Development Project” means the development of the Property with approximately 114 units of housing, residential amenity building, parking for 306 vehicles, landscaping, and associated site improvements as shown in Exhibit B and approved by the City under Permit PW21- 079 and associated with Building Permits No. 22-026 through 22-046. f) “Director” means the City’s Public Works Director. g) “Effective Date” means the effective date of the Adopting Ordinance. h) “Maximum credit” means the maximum amount of transportation impact fee credits to be provided by the City to the Owner for the Transportation Improvement Project pursuant this Agreement. i) “Transportation Improvement Project” or “Project” means the Transportation Improvement Project described above which serves both the Property and the greater community, as specified in Section 2, as provided for in all associated permits/approvals, whether now in place or to be issued in the future, and as described in all incorporated exhibits. Section 4. Exhibits. Exhibits to this Agreement are as follows: a) Exhibit A – Legal Description of the Property. b) Exhibit B – Map of the Property and the Development Project and with permits listed in Section 2 identified. c) Exhibit C – Transportation Improvement Project, including components, as defined in the Project Plan, Roadway Cross Section, and Project Boundary Map. Section 5. Parties to Development Agreement. The Parties to this Agreement are: a) The “City” is the City of Port Orchard, whose office is located at 216 Prospect Street, Port Orchard, WA 98366. b) The “Owner” is a private enterprise which owns the Property in fee, and whose principal office is located at 1302 Puyallup Street, Suite A, Sumner, WA 98390. Section 6. Improvement Project is a Private Undertaking. It is agreed among the Parties that the Transportation Improvement Project consists of private improvements for which credits are required pursuant to RCW 82.02.060(4) and that the City has no interest in the improvements until such time as the Transportation Improvement Project is completed and dedicated to the City as provided in this Agreement. Page 167 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 5 of 16 1577936.4 - 366922 -0043 Section 7. Term of Agreement. This Agreement shall commence upon the Effective Date and shall continue in force for a period of five (5) years unless extended or terminated as provided herein; provided, however, the Fee Vesting Date (as defined herein) shall expire on February 28, 2023. If Owner has not obtained the Building Permits by February 28, 2023, the Owner shall pay the then applicable impact fees at the rate established as of the date of issuance of the Building Permits. Following the expiration of the term or extension thereof, or if sooner terminated, this Agreement shall have no force and effect except for such sections which are specifically intended to survive expiration or termination. Section 8. Project Schedule. Subject to the City’s issuance of all necessary permits and approvals, the Owner will commence construction of the Transportation Improvement Project on the following schedule: a) The Transportation Improvement Project requires two permits: (a) Land Disturbing Activity Permit (“LDAP”); and (b) Right of Way Permit (“ROW Permit”) (collectively, the “Transportation Improvement Permits”). Owner’s construction of the Transportation Improvement Project is associated with the issuance of certain building permits associated with the Development Project, specifically City Permit Nos. 22-026 through 22-046 (“Building Permits”). b) Owner has submitted the LDAP and anticipates submitting the ROW Permit shortly. The LDAP application is currently under review at the City. The City shall review and make final determinations on the Transportation Improvement Permits and the Building Permits within one hundred and twenty (120) days of the determination of completeness for the Transportation Improvement Permits and each individual Building Permit, provided however, the City shall reserve the right to make findings that a specified amount of additional time is needed to process of the permits as authorized by RCW 36.70B.080. Any days that the City is waiting for the Owner to submit corrections to the application shall be tolled. In the event that the City requires additional time beyond this window to review the Transportation Improvement Permits and ROW Permit, or requests additional corrections from Owner, the timeline for Owner’s obligation to construct the Transportation Improvement Project is tolled until the date that the City makes its final determination on the Transportation Improvement Permits. c) Upon issuance of the Transportation Improvement Permits, the Owner shall commence construction of the Transportation Improvement Project within one hundred and twenty (120) days and proceed in a timely and workmanlike fashion through completion, provided however, the Owner shall be solely responsible for the means and methods for construction sequencing and phasing. d) Owner shall complete the Transportation Improvement Project no later than the date of the issuance of a Certificate of Occupancy for the last residential structure contained within Page 168 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 6 of 16 1577936.4 - 366922 -0043 the Development Project, or sixty (60) calendar days prior to the Termination of this Agreement, whichever date occurs first. Section 9. Transportation Improvement Project standards. a) General. Owner will design and construct the Transportation Improvement Project to comply with City standards, including obtaining all necessary permits, not to be unreasonably withheld or conditioned by the City. The City will approve the plans before construction begins; and the City will accept responsibility for the operation of the Transportation Improvement Project once it is completed, the Transportation Improvement Project has been accepted, and a two-year warranty and maintenance bond is in place. A Project will be deemed completed when all of the following occurs: 1. The City deems it substantially complete; 2. All punch list items are finished; 3. The City releases the performance bond (described in subsection b below); 4. The Owner has put a two-year warranty and maintenance bond in place; 5. The Owner has completed all necessary property dedications; 6. The City has accepted the dedications, such approval not to be unreasonably withheld or conditioned; and 7. The Owner has provided the City with a Bill of Sale for the improvements containing the certified construction costs (stamped by licensed engineer) to the City for determination of the maximum credits available under this Agreement. The City will confirm completeness of the Transportation Improvement Project by issuing a Final Notice of Completeness to the Owner. b) Transportation Improvement Project. The Transportation Improvement Project will include design, permitting, and construction, at Owner’s sole expense of the specified portion of 2026-2039 Tier 2 TIP Project 2.05 “Sidney Road SW Project” (Ordinance 067- 21). The Transportation Improvement Project shall meet the City standards for public rights of ways and shall provide the amenities that are described in TIP Project 2.05 with such conditions as the City deems applicable and appropriate in LDAP Permit No. PW21-079; provided, however, the City shall not add conditions to the Transportation Improvement Project that are inconsistent with Exhibit C. The Transportation Improvement Project construction work shall be secured by a Performance Bond at 150% of the estimated construction costs. The Performance Bond shall be in place prior to Owner commencing work on the Transportation Project. Prior to City acceptance, the construction of the Transportation Improvement Project shall be inspected by the City, approval of which shall not be unreasonably withheld. In addition to the requirements in Section 9(a) above, the City’s final approval of the Transportation Project shall be conditioned upon receipt from Owner a two (2) year Maintenance Bond at 20% of the construction costs, which shall be effective upon the City’s release of the Performance Bond. Upon acceptance of the Bill of Sale, the City shall release the Performance Bond and shall accept full responsibility for the Transportation Improvement Project, except for those maintenance obligations of Owner secured by the two-year Maintenance Bond. Upon City’s acceptance of the Transportation Improvement Project, Page 169 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 7 of 16 1577936.4 - 366922 -0043 Owner shall not be responsible for any further costs, maintenance, or liability for the Transportation Improvement Project. This provision survives the Termination of this Agreement. Section 10. Transportation Improvement Projects costs and credits. a) Transportation Improvement Project. The maximum amount of the Transportation Impact Fee credit for the Transportation Improvement Project to be built by Owner under this Agreement shall be limited to the total Transportation Impact Fees due on the Project (currently calculated as $315,949.20), or the actual costs incurred by the Owner, whichever is less (“Maximum Transportation Project Credit”). The credits provided under Section 11 below are limited to this Maximum Transportation Project Credit. Once the Maximum Transportation Project Credit has been achieved through credits applied to Owner for the Development Project, Owner would be required to comply with the impact fee provisions of the Code for any further development of the Property that requires payment of transportation impact fees, including payment of any transportation impact fees incurred over and above the Maximum Transportation Project Credit. Section 11. Transportation Impact Fee Credits. The City hereby grants the Owner a credit against transportation impact fees for its costs to design and construct the Transportation Improvement Project. The credits will be calculated and applied as follows: a) The total estimated transportation impact fee required for the Development Project is currently $315,949.20. Owner shall pay the transportation impact fees based on the rate schedule as of March 2, 2022 (“Fee Vesting Date”), which shall expire as defined in Section 7. As necessary, Owner shall dedicate any land necessary for the Transportation Improvement Project, provided, however, Owner shall be able to seek credits against any impact fees for such dedication as authorized by Code. Owner shall complete such dedications prior to issuance of a Certificate of Occupancy for the first building permit for the Development Project. Prior to the issuance of the first building permit for the Development Project, Owner shall provide a Performance Bond, in a form acceptable to the City, for 150% of the Engineer’s Estimate for the Transportation Improvement Project, or the then applicable Transportation Impact Fees due on the project (currently $315,949.20), whichever amount is greater (“Transportation Performance Bond”). The City will defer the final calculation, assessment, and collection of the transportation impact fees for the Development Project until the completion of the Transportation Improvement Project. The Parties anticipate that the Maximum Transportation Fee Credit will cover all or most of the transportation impact fee required for the Development Project. The City shall issue any Certificate of Occupancy requested by the Owner in due course as required by the Code and this Page 170 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 8 of 16 1577936.4 - 366922 -0043 Agreement provided the Transportation Performance Bond remains in effect at the time of a request for a Certificate of Occupancy. Upon completion of the construction of the Transportation Improvement Project, Owner shall submit certified Transportation Improvement Project costs to the City for review and acceptance by the City Engineer as provided in the Code. Once these costs and executed Bill of Sale are reviewed and accepted by the City Engineer, not to be unreasonably withheld, conditioned, or delayed, the maximum credit due to Owner will be established and will equal the Maximum Transportation Project Credit as so certified in accordance with this subsection and Section 10. In the event that the Maximum Transportation Project Credit satisfies the transportation impact fees for the Development Project, the City shall release the Transportation Performance Bond, provided the two-year warranty bond is then in place. If any remaining transportation impact fees are required after crediting the Maximum Transportation Project Credit against the Development Project, the Owner shall pay those fees prior to the issuance of any outstanding Certificate(s) of Occupancy. The City shall use best available efforts to review and certify the transportation impact fees and issue any corresponding Certificates of Occupancy within 14 days of receipt. In the event Owner defaults on any requirement under this subsection, the City’s remedies include pulling the Transportation Performance Bond and holding any outstanding Certificates of Occupancy until such time the Transportation Project is completed, and any outstanding impact fees are paid in full or credited. b) The City agrees that these credits are consistent with RCW 82.02.060(4) and that they are consistent with POMC 20.182.080. Section 12. Other Impact Fees. The Development Project is subject to the City’s impact fee requirements of POMC Ch. 20.182. Owner shall pay the applicable impact fees for the Development Project at the rates as of the Fee Vesting Date, which shall expire as defined in Section 7. Provided however, under this Agreement the Owner has not vested to school impact fees. Section 13. Default. a) Subject to extensions of time by mutual consent in writing, failure, or delay by either Party to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the Party alleging such default or breach shall give the other Party not less than thirty (30) days’ notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During this thirty (30) day period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings. b) After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other Party to this Page 171 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 9 of 16 1577936.4 - 366922 -0043 Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition, the City may decide to file an action to enforce the City’s Codes, and to obtain penalties and costs as provided in the POMC for violations of this Agreement and the Code. Section 14. Termination. This Agreement shall terminate five (5) years after Effective Date. Upon termination of this Agreement, the City shall record a notice of such termination in a form satisfactory to the Parties that the Agreement has been terminated. Section 15. Extension and Modification. Any request for extension or modification, if allowed under the City’s code, shall be subject to the provisions contained in POMC Chapter 20.26 POMC. Section 16. Effect upon Termination on Owner. Termination of this Agreement as to the Owner shall not affect any of the Owner’s respective obligations to comply with the City Comprehensive Plan and the terms and conditions or any applicable zoning code(s) or other land use entitlements approved with respect to the Property, or obligations to pay assessments, liens, fees, or taxes. Furthermore, if the Agreement expires without the Transportation Improvement Project costs being fully recovered by impact fee credit or mitigation funds, the Owner will no longer be eligible to receive such credits. Section 17. Effects upon Termination on City. Upon any termination of this Agreement as to the Property, or any portion thereof, the City will be under no obligation to provide any additional credits or reimbursement to Owner even if the Transportation Improvement Project costs have not been fully recovered at the time of expiration or termination. Section 18. Assignment and Assumption. The Owner shall have the right to sell, assign or transfer this Agreement with all rights, title, and interests therein to any person, firm, or corporation at any time during the term of this Agreement with a sale of the underlying property. Owner shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Property, at least 30 calendar days in advance of such action; provided; however, failure to strictly comply with the 30 calendar day notice provision shall not be considered a breach of this Agreement. Section 19. Binding on Successors; Covenants Running with the Land. The conditions and covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the land and the benefits and burdens shall bind and inure to the benefit of the Parties. The Owner and every purchaser, assignee or transferee of an interest in the Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a Party thereto, but only with respect to the Property, or such portion thereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of the Owner contained in this Agreement, as such duties and obligations pertain to the portion of the Property sold, assigned, or transferred to it. Page 172 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 10 of 16 1577936.4 - 366922 -0043 Section 20. Amendment to Agreement; Effect of Agreement on Future Actions. No waiver, alteration, or modification to any of the provisions of this Agreement shall be binding unless in writing, signed by the duly authorized representatives of the Parties, be consistent with Chapter 20.26 POMC, and, where considered substantive as determined by the Director, follow the same procedures set forth in Chapter 20.26 POMC. However, except as provided in Sections 11-12, nothing in this Agreement shall prevent the City Council from making any amendment to its Comprehensive Plan, Zoning Code, Official Zoning Map or development regulations after the Effective Date of this Agreement. Section 21. General release. Owner may free itself from further obligations relating to the sold, assigned, or transferred property, provided that the buyer, assignee, or transferee expressly assumes the obligations under this Agreement as provided herein, including the obligation to construct the Transportation Improvement Project. Section 22. Notices. Notices, demands, correspondence to the City and/or Owner (as applicable) shall be sufficiently given if dispatched by pre-paid first-class mail to the addresses of the parties as designated in “Written Notice” Section 34 below. Notice to the City shall be to the attention of both the City Clerk and the City Attorney. Notices to successors-in-interest of the Owner shall be required to be given by the City only for those successors-in-interest who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence. Section 23. Reimbursement for Agreement Expenses of the City. Owner agrees to reimburse the City for actual expenses incurred over and above fees paid by Owner as an applicant incurred by City directly relating to this Agreement, including recording fees, publishing fees, attorneys’ fees, and reasonable staff and consultant costs not otherwise included within application fees; provided however, the City shall provide written notice to Owner if the expenses to the City are anticipated to exceed Twenty-Five Thousand Dollars and No Cents ($25,000.00) and the parties shall meet and confer regarding the City’s anticipated costs as provided in Section 24(a). Upon payment of all expenses, the Owner may request written acknowledgement of all fees. Such payment of all fees shall be paid, at the latest, within thirty (30) days from the City’s presentation of a written statement of charges to the Owner. Section 24. Applicable Law, Resolution of Disputes, and Attorneys’ Fees. It is the Parties’ intent to work cooperatively and to resolve disputes in an efficient and cost-effective manner. All disputes arising out of or relating to this Agreement shall be resolved as follows: a) Settlement Meeting. If any dispute arises between the parties relating to this Agreement, then the parties shall meet and seek to resolve the dispute, in good faith, within ten (10) working days after a Party’s request for such a meeting. The City shall send the Mayor, Community Development Director, Public Works Director, and/or the Mayor’s designee and any persons with information relating to the dispute, and Owner shall send an owner’s representative and any consultant or other person with technical information or expertise related to the dispute. Page 173 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 11 of 16 1577936.4 - 366922 -0043 b) Court. If the parties cannot resolve the matter in a settlement meeting, then jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington, or the U.S. District Court for Western Washington, as applicable. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. The non-prevailing Party in any action brought to enforce this Agreement shall pay the other Parties' expenses and reasonable attorney's fees. Section 25. No Third-Party Beneficiaries. Except as otherwise provided herein, this Agreement shall not create any rights enforceable by any party who is not a Party to this Agreement. Section 26. City’s right to breach. The Parties agree that the City may, without incurring any liability, engage in action that would otherwise be a breach if the City makes a determination on the record that the action is necessary to avoid a serious threat to public health and safety, or if the action is required by federal or state law. Section 27. Owner’s Compliance. The City’s duties under the agreement are expressly conditioned upon the Owner’s substantial compliance with each and every term, condition, provision, and/or covenant in this Agreement, including all applicable federal, state, and local laws and regulations and the Owner’s obligations as identified in any approval or project permit for the property identified in this Agreement. Section 28. Limitation on City’s Liability for Breach. Any breach of this Agreement by the City shall give right only to damages under state contract law and shall not give rise to any liability under Chapter 64.40 RCW, the Fifth and Fourteenth Amendments to the U.S. Constitution, or similar state constitutional provisions. Section 29. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a Party to challenge this Agreement or any provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Owner. In such event, Owner shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to, attorneys’ fees and expenses of litigation. The Owner shall not settle any lawsuit without the consent of the City. The City shall act in good faith and shall not unreasonably withhold consent to settle. Section 30. Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance of all material terms of this Agreement by any Party in default hereof. Section 31. Recording. This Agreement shall be recorded against the Property with the real property records of the Kitsap County Auditor. During the term of the Agreement, it is binding upon the owners of the property and any successors in interest to such property. Page 174 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 12 of 16 1577936.4 - 366922 -0043 Section 32. Severability. This Agreement does not violate any federal or state statute, rule, regulation or common law known; but any provision which is found to be invalid or in violation of any statute, rule, regulation or common law shall be considered null and void, with the remaining provisions in the Agreement remaining viable and in effect. Section 33. Non-Waiver of Breach. The failure of a Party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be and remain in full force and effect. Section 34. Written Notice. All written communications regarding enforcement or alleged breach of this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Unless otherwise specified, any written notice hereunder shall become effective upon the date of both emailing and mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated below: SIDNEY ROAD TOWNHOMES L.L.C.CITY: Attn: General Counsel 1302 Puyallup Street, Suite A Sumner, WA 98390 McCullough Hill Leary, P.S. Attn: Ian Morrison 701 5th Avenue, Suite 6600 Seattle, WA 98104 imorrison@mhseattle.com Mayor City of Port Orchard 216 Prospect Street Port Orchard WA 98366 rputaansuu@cityofportorchard.us Copies shall also be transmitted to the City Clerk and City Attorney at the above address. Section 35. Time is of the essence. All time limits set forth herein are of the essence. The Parties agree to perform all obligations under this Agreement with due diligence. Section 36. Covenant of Good Faith and Cooperation. The Parties agree to take further actions and execute further documents, either jointly or within their respective power and authority, to implement the intent of this Agreement. Each Party covenants to use its best efforts and work cooperatively in order to secure the benefits and rights under this Agreement. The Parties shall not unreasonably withhold approvals or consents provided for in this Agreement. Each Party shall execute and deliver to the other all further documents as are reasonably necessary to carry out this Agreement, including the Improvement Projects and Development Project, as may be necessary to provide a Party with a full and complete enjoyment of its rights and privileges under this Agreement. Page 175 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 13 of 16 1577936.4 - 366922 -0043 Section 37. Interpretation. This Agreement has been reviewed and revised by legal counsel for both Parties, and no presumption or rule construing ambiguity against the drafter of the document shall apply to the interpretation or enforcement of this Agreement. Section 38. Counterparts. The Agreement may be signed in two or more counterpart copies with the same effect as if the signature of each counterpart copy were on a single instrument. Each counterparty shall be deemed as an original as to the Party whose signature it bears, and all such counterparts shall constitute one document. Section 39. Entire Agreement. The written provisions and terms of this Agreement, together with the Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the parties, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever, this Agreement. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement and exhibits thereto. IN WITNESS WHEREOF, the parties have executed this Agreement on this day of , 2022. SIDNEY ROAD TOWNHOMES L.L.C. CITY OF PORT ORCHARD By: Its: Manager By: By: Rob Putaansuu Its: Its: Mayor Page 176 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 14 of 16 1577936.4 - 366922 -0043 APPROVED AS TO FORM: APPROVED AS TO FORM: Ian Morrison Jennifer S. Robertson Attorney for Owner Attorney for Port Orchard ATTEST: Brandy Wallace, CMC Port Orchard City Clerk Page 177 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 15 of 16 1577936.4 - 366922 -0043 NOTARY BLOCK FOR PORT ORCHARD STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu 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 Mayor of Port Orchard to be the free and voluntary act of such Party for the uses and purposes mentioned in the instrument. Dated: 2022 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Page 178 of 351 Development Agreement for Funding Transportation Improvements Sidney Road Townhomes L.L.C. Page 16 of 16 1577936.4 - 366922 -0043 NOTARY BLOCK FOR SIDNEY ROAD TOWNHOMES L.L.C. STATE OF WASHINGTON ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that. is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the of Sidney Roads Townhomes LLC, a Washington limited liability company to be the free and voluntary act of such Party for the uses and purposes mentioned in the instrument. Dated: 2022 (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Page 179 of 351 EXHIBIT A LEGAL DESCRIPTION Parcel I: The East 10 acres of the Northeast quarter of the Northeast quarter, Section 10, Township 23 North, Range 1 East, W.M., in Kitsap County, Washington; Except the North 40 rods; Except the South 2 acres; Except any portion of said 10 acres lying West of the East 20 rods of said Northeast quarter of the Northeast quarter; Except Sidney Road; And except that portion conveyed to Kitsap County by deed recorded under Auditor's File No. 9301200159; Parcel II: That portion of the Northeast quarter of the Northeast quarter, Section 10, Township 23 North, Range 1 East, W.M., in Kitsap County, Washington, described as follows: Beginning at the Northeast corner of said Section 10; thence South 40 rods (660 feet); thence West 20 rods (330 feet); thence North 40 rods (660 feet); thence East 20 rods (330 feet) to the place of beginning; Except Glenwood Road; And except that portion for Sidney Road SW; And except that portion, if any, lying within the West Three-Quarters of the Northeast Quarter of the Northeast Quarter of said Section 10. Kitsap County Assessor Parcel # 102301-1-053-2000 Page 180 of 351 Page 181 of 351 G µ ΡΗΧΜ∆Ξ ΘΧ Ρς ΕΘΝΜΣ≅Φ∆ ΗΛΟΘΝΥ∆Λ∆ΜΣΡ ΡΒ≅Κ∆9 0! < 0 50 0//& 200100 SE E B E L O W F O R C O N T I N U A T I O N ΑΚΧΦ 3 ΑΚΧΦ 2 ΑΚΧΦ 0≅Λ∆ΜΗΣΞ ΑΚΧΦ 1/ΑΚΧΦ 07 ΑΚΧΦ 06 {\ H 0 . 8 x ; S E E A B O V E F O R C O N T I N U A T I O N } ΡΗΧΜ∆Ξ ΘΧ Ρς ΡΗΧΜ∆Ξ ΘΧ Ρς ΦΚ ∆ Μ ς Ν Ν Χ ΘΧ Ρ ς {\H0.8x;SEE GLENWOOD FRONTAGE IMPROVEMENTS EXHIBIT FOR CONTINUATION} Page 182 of 351 µ ΦΚ∆ΜςΝΝΧ ΘΧ Ρς ΕΘΝΜΣ≅Φ∆ ΗΛΟΘΝΥ∆Λ∆ΜΣΡ ΡΒ≅Κ∆9 0! < 0 50 0//& 200100 ΑΚ Χ Φ 0 5 ΑΚΧΦ 06 {S E E S I D N E Y R D S W F R O N T A G E IM P R O V E M E N T S FO R C O N T I N U A T I O N } ΡΗΧΜ∆Ξ ΘΧ Ρς ΦΚ ∆ Μ ς Ν Ν Χ Θ Χ Ρ ς Page 183 of 351 \A1;6' SIDEWALK 10' LANDSCAPE ΡΗΧΜ∆Ξ ΘΧ Ρς ΛΗΜΝΘ ≅ΘΣ∆ΘΗ≅Κ Α SCALE: 1"=10' \A1;30'\A1;30' \A1;60' 6' BIKE LANE \A1;12' EX TRAVEL LANE \A1;4' ROW DEDICATION Page 184 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City was nominated for a Transportation Improvement Board (TIB) complete streets program award by the Kitsap Public Health District. On March 25th, the City was officially notified that it was selected for an award. As a component of the award, the City submitted a workplan for use of the awarded funding for proposed work on Pottery Road. On April 20th, 2022, the City was notified that the work plan was accepted, the amount of the award would be $650,000, and provided with a grant agreement. A summary of the terms and conditions as follows: Max. Grant Amount: $650,000 Time of Performance 6/1/2022 – 3/25/2025 Funds Source TIB – Complete Streets By this action, the Council would authorize the acceptance of the grant funding; project expenditures will be submitted for separate Council approval in accordance with the City’s procurement policies. Relationship to Comprehensive Plan: Chapter 8 – Transportation. Recommendation: Staff recommends that the City Council adopt an Ordinance authorizing the Mayor to execute a contract (TIB C-W-153(001)-1) with the State of Washington Transportation Improvement Board for the Pottery Road Non-Motorized Improvement in the grant amount of $650,000. Motion for Consideration: I move to adopt an Ordinance authorizing the Mayor to execute a contract with the State of Washington Transportation Improvement Board for the Pottery Road Non-Motorized Improvement in the grant amount of $650,000. Fiscal Impact: This grant award will be added to the budgeted local funding for the Project. Alternative: Refuse Grant and provide alternative direction. Attachment: Ordinance, Exhibit A – Agreement No. C-W-153(001)-1. Page 185 of 351 ORDINANCE NO. ____ AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ACCEPTING THE STATE OF WASHINGTON TRANSPORTATION IMPROVEMENT BOARD GRANT AGREEMENT TERMS AND CONDITIONS FOR THE POTTERY ROAD NON-MOTORZIED IMPROVEMENT PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, on March 25th, the Washington State Transportation Improvement Board (TIB) selected the City of Port Orchard for a Complete Streets Award; and WHEREAS, on April 20, 2022, the City of Port Orchard Public Works Department was notified that the City’s proposed workplan was accepted for improvements to Pottery Road, and that the award amount would be $650,000; and WHEREAS, the TIB provided the City with a grant agreement for the award; and. WHEREAS, the Port Orchard City Council has determined it to be in the best interest of the City to accept the grant award and enter into the agreement with the State of Washington TIB; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council accepts the TIB Complete Streets Award and authorizes the Mayor’s to execute a contract with the (TIB Agreement C-W-153(110)-1) with the State of Washington for the Pottery Non-motorized Improvement Project and any other associated documentation necessary to effectuate the award. SECTION 2. Severability. If any section, sentence, clause or phrase of this Ordinance should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 3. Publication. This Ordinance shall be published by an approved summary consisting of the title. SECTION 4. Effective Date. This Ordinance shall take effect and be in full force and effect five days after publication, as provided by law. Page 186 of 351 Ordinance No. ___ Page 2 of 2 PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the Clerk in authentication of such passage this 10th day of May 2022. Robert Putaansuu, Mayor ATTEST: SPONSOR: Brandy Wallace, MMC, City Clerk Fred Chang, Councilmember APPROVED AS TO FORM: Charlotte Archer, City Attorney PUBLISHED: EFFECTIVE DATE: Page 187 of 351 Washington State Transportation Improvement Board C-W-153(001)-1 Complete Streets Award Grant Agreement Complete Streets Grant Agreement Page 1 of 5 December 2016 City of Port Orchard C-W-153(001)-1 Complete Streets Award STATE OF WASHINGTON TRANSPORTATION IMPROVEMENT BOARD AND CITY OF PORT ORCHARD GRANT AGREEMENT THIS GRANT AGREEMENT (“Agreement”) is made and entered into between the WASHINGTON STATE TRANSPORTATION IMPROVEMENT BOARD (“TIB”) and the CITY OF PORT ORCHARD, a Washington state municipal corporation (“RECIPIENT”). WHEREAS, the TIB has developed a grant program, Complete Streets, to provide for the retrofit of streets and roads (“Project”) for eligible cities, towns, and counties to provide access to all users, including bicyclists, pedestrians, motorists, and public transportation riders, and WHEREAS, the above-identified RECIPIENT is eligible to receive a Project grant pursuant to ordinance 030-16 and that it has the legal authority to receive such grant and to perform the Project pursuant to the terms of this grant NOW, THEREFORE, pursuant to chapter 47.26 RCW, RCW 47.04.320, and WAC 479-10-500 et seq, the above recitals that are incorporated herein as if fully set forth below, and in consideration of the terms, conditions, and performances contained herein, and the attached Exhibits, if any, which are made a part hereof, IT IS MUTUALLY AGREED AS FOLLOWS: 1. GRANT TIB agrees to grant funds in the amount of SIX HUNDRED FIFTY THOUSAND AND NO/100 dollars ($650,000) for the Project pursuant to the terms contained herein, and the RECIPIENT agrees to accept such grant funds and agrees to perform and be subject to the terms and conditions of this Agreement. 2. PROJECT AND BUDGET The Project shall provide for the retrofit of identified streets or roads on the RECIPIENT’s approved work plan. In accordance with applicable laws and ordinances, the RECIPIENT agrees to enter into an agreement with an independent contractor and/or material providers, or otherwise provide for the Project work plan to be completed by the RECIPIENT’s own forces. The RECIPIENT further agrees that it shall be solely responsible for and shall pay its independent contractor and/or material providers. If RECIPIENT uses its own forces, it shall be solely responsible for paying the costs thereof. Under no circumstances shall the TIB be responsible to any third party for the payment of labor or materials used in completing the Project work plan. The Project work plan may be amended by the Parties, pursuant to Section 7. 3. PROJECT WORK PLAN AND DOCUMENTATION Page 188 of 351 Washington State Transportation Improvement Board C-W-153(001)-1 Complete Streets Award Grant Agreement Complete Streets Grant Agreement Page 2 of 5 December 2016 The RECIPIENT agrees to and shall make reasonable progress and submit timely Project documentation, as applicable, throughout the term of this Agreement and Project. Required documents include, but are not limited to the following: a) Project work plan describing eligible items with estimated costs; b) Documentation to support all costs expended on the Project work plan; and b) Project work plan Closeout Form. 4. PAYMENT AND RETURN OF GRANT FUNDS TIB will pay the full grant award to the RECIPIENT after TIB approves the Project work plan and the Parties fully execute this Agreement; provided that there are legislatively appropriated funds available. The RECIPIENT agrees that it shall hold the grant funds in a separate and identifiable account and only use said funds to pay the actual direct and related indirect costs of the approved Project work plan. Grant funds not expended on approved Project work plan items by March 25th, 2025 shall be returned to TIB within ninety (90) days after receipt of TIB’s written notification. 5. USE OF COMPLETE STREETS GRANT FUNDS RECIPIENT agrees that the grant funds shall only be used to complete the approved Project work plan. Otherwise, RECIPIENT is subject to the Default and Termination provisions of Section 9. 6. RECORDS MAINTENANCE 6.1 The RECIPIENT shall maintain books, records, documents, data and other evidence relating to this Agreement and performance of the Project work plan, including but not limited to accounting procedures and practices which sufficiently and properly reflect all actual direct and related indirect costs of any nature expended in the performance of this Agreement. RECIPIENT shall retain such records for a period of six years after the completion of the Project work plan and TIB’s acceptance of the Project work plan Closeout Form. At no cost to TIB, these records shall be provided when requested; including materials generated under the Agreement, and shall be subject at all reasonable times to inspection, review or audit by TIB personnel, the Office of the State Auditor, and federal and state officials so authorized by law, regulation or agreement. 6.2 If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. 7. REVISIONS TO THE PROJECT WORK PLAN RECIPIENT may request revisions to the Project work plan, including the addition or removal of items. Requests must be made in writing, and TIB, in its sole discretion, will determine whether to accept the proposed revisions. Should the TIB approve a Project work plan revision, the Parties shall amend this Agreement pursuant to Section 14. The RECIPIENT shall be solely responsible for all costs incurred in excess of the Agreement grant award. Page 189 of 351 Washington State Transportation Improvement Board C-W-153(001)-1 Complete Streets Award Grant Agreement Complete Streets Grant Agreement Page 3 of 5 December 2016 8. TERM OF AGREEMENT This Agreement shall be effective upon execution by the Parties and shall continue through closeout of the grant amount, or amendment thereof, or unless terminated as provided herein. In no event shall the Agreement term exceed three years, unless extended by Agreement amendment pursuant to Section 14. 9. NON-COMPLIANCE, DEFAULT AND TERMINATION 9.1 NON-COMPLIANCE a) In the event TIB determines, in its sole discretion, the RECIPIENT has failed to comply with the terms and conditions of this Agreement and applicable rules under WAC 479-10-500 et seq, TIB shall notify the RECIPIENT, in writing, of RECIPIENT’s non- compliance. b) RECIPIENT shall provide a written response within ten (10) business days of receipt of TIB’s notice of non-compliance, which shall include either a detailed plan to correct the non-compliance, a request to amend the Project work plan, or a denial accompanied by supporting documentation. An agreement to amend the Project work plan must be pursuant to Section14. c) RECIPIENT shall have thirty (30) days in which to make reasonable progress toward compliance pursuant to its Project work plan to correct or implement an amendment to the Project work plan. d) Should RECIPIENT dispute non-compliance, TIB will investigate the dispute and, in its sole discretion, TIB may require the RECIPIENT to stop incurring additional Project work plan costs during the investigation. Should TIB require the RECIPIENT to stop incurring additional costs to be paid with the grant funds, the RECIPIENT shall be solely obligated for paying any additional costs incurred by such suspension of work, contractor claims, or litigation costs; such costs cannot be paid for with grant funds. 9.2 DEFAULT RECIPIENT is in default if TIB determines, in its sole discretion, that: a) RECIPIENT is not making reasonable progress toward correction and compliance with this Agreement and the Project work plan; b) TIB denies the RECIPIENT’s request to amend the Project work plan; and c) After investigation, TIB confirms RECIPIENT’S non-compliance. 9.3 TERMINATION a) In the event of default as determined pursuant to Section 9, TIB shall serve RECIPIENT with a written notice of termination of this Agreement, which may be served in person, by email or by certified letter. Upon service of notice of termination, the RECIPIENT shall immediately stop incurring costs chargeable against the grant funds and/or take such actions necessary as may be directed by TIB to protect TIB’s grant funds. b) In the event of termination, the RECIPIENT may be liable for damages as authorized by law including, but not limited to, repayment of all grant funds. Page 190 of 351 Washington State Transportation Improvement Board C-W-153(001)-1 Complete Streets Award Grant Agreement Complete Streets Grant Agreement Page 4 of 5 December 2016 c) The rights and remedies of TIB provided in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. 10. DISPUTE RESOLUTION a) The Parties shall make good faith efforts to quickly and collaboratively resolve any dispute arising under or in connection with this Agreement. The dispute resolution process outlined in this Section applies to disputes arising under or in connection with the terms of this Agreement. b) Informal Resolution. The Parties shall use their best efforts to resolve disputes promptly and at the lowest organizational level. c) In the event that the Parties are unable to resolve the dispute, the Parties shall submit the matter to non-binding mediation facilitated by a mutually agreed upon mediator. The Parties shall share equally in the costs of the mediator. d) Each Party agrees to participate to the fullest extent possible and in good faith in resolving the dispute in order to avoid delays or additional incurred cost to the Project work plan. e) The Parties agree that they shall have no right to seek relief in a court of law in accordance with Section 11, until and unless the Dispute Resolution process has been exhausted. 11. GOVERNANCE, VENUE, AND ATTORNEYS FEES This Agreement shall be construed and interpreted in accordance with the laws of the state of Washington and venue of any action brought hereunder shall be in the Superior Court for Thurston County. The Parties agree that each Party shall be responsible for its own attorneys’ fees and costs. 12. INDEMNIFICATION, HOLD HARMLESS, AND WAIVER 12.1 RECIPIENT, shall protect, defend, indemnify, and save harmless the TIB, its officers, officials, employees, and authorized agents, while acting within the scope of their employment as such, from any and all costs, claims, judgments, and/or awards of damages (both to persons and/or property), arising out of, or in any way resulting from, RECIPIENT’S negligent acts or omissions which may arise in connection with its performance under this Agreement. RECIPIENT shall not be required to indemnify, defend, or save harmless the TIB if the claim, suit, or action for injuries, death, or damages (both to persons and/or property) is caused by the sole negligence of TIB; provided that, where such claims, suits, or actions result from the concurrent negligence of the Parties, or involves those actions covered by RCW 4.24.115, the indemnity provisions provided herein shall be valid and enforceable only to the extent of RECIPIENT’s own negligence 12.2 RECIPIENT agrees that its obligations under this section extends to any claim, demand and/or cause of action brought by, or on behalf of, any of its officers, officials, employees or authorized agents. For this purpose, RECIPIENT, by mutual negotiation, hereby waives, with respect to TIB only, any immunity that would otherwise be available to it against such claims under the Industrial Insurance provisions of Title 51 RCW. Page 191 of 351 Washington State Transportation Improvement Board C-W-153(001)-1 Complete Streets Award Grant Agreement Complete Streets Grant Agreement Page 5 of 5 December 2016 12.3 The obligations of this indemnification and waiver Section shall survive termination of this Agreement. 13. ASSIGNMENT The RECIPIENT shall not assign or transfer its rights, benefits, or obligations under this Agreement without the prior written consent of TIB. The RECIPIENT is deemed to consent to assignment of this Agreement by TIB to a successor entity. Such consent shall not constitute a waiver of the RECIPIENT’s other rights or obligations under this Agreement. 14. AMENDMENTS This Agreement may be amended by mutual agreement of the Parties. Such amendments shall not be binding unless they are in writing and signed by persons authorized to bind each of the Parties. 15. INDEPENDENT CAPACITY The RECIPIENT shall be deemed an independent contractor for all purposes and the employees of the RECIPIENT or any of its contractors, subcontractors, and employees thereof shall not in any manner be deemed employees of TIB. 16. ENTIRE AGREEMENT This Agreement, together with the Exhibits, if any, the provisions of chapter 47.26 RCW, chapter 479 WAC, and TIB Policies, constitute the entire Agreement between the Parties and supersedes all previous written or oral agreements between the Parties. RECIPIENT agrees to abide by all applicable federal, state and local laws, ordinances, and rules when performing under the terms of this Agreement. RECIPIENT Transportation Improvement Board Chief Executive Office Date Date Print Name Print Name Approved as to Form By: ____________________________________ ANN E. SALAY Senior Assistant Attorney General NOTE: Any changes to the terms of this Agreement shall require further approval of the Office of the Attorney General Page 192 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: On April 24, 2018, and as a requirement of the Puget Sound Regional Council (PSRC)/Kitsap Regional Coordinating Council (KRCC) Countywide Application process, the Port Orchard City Council adopted Resolution No. 020-18 in support of the 2019-2022 Federal Funding Cycle Application for the Bay Street Pedestrian Pathway West – Situational Study. On October 31, 2018, the City was officially notified by PSRC that the City was successful in obtaining a $490,000 grant award with a summary of the terms and conditions as follows: Max. Grant Amount: $490,000 Time of Performance 2050 Funds Source FHWA STPUL-9918(021) 13.5% Local Match $76,474 By this action, the Council would authorize the acceptance of the grant funding; project expenditures will be submitted for separate Council approval in accordance with the City’s policies. Relationship to Comprehensive Plan: Chapter 8 – Transportation Recommendation: Staff recommends that the City Council adopt Ordinance No. 009-22, thereby authorizing the Mayor to execute Contract No. C044-22 (WSDOT LA 10296) with the Washington State Department of Transportation for the Bay Street Pedestrian Pathway West – Situational Study in the grant amount of $490,000. Motion for Consideration: I move to adopt Ordinance No. 009-22, authorizing the Mayor to execute Contract No. C044-22 (WSDOT LA 10296) with the Washington State Department of Transportation for the Bay Street Pedestrian Pathway West – Situational Study in the grant amount of $490,000. Fiscal Impact: This grant award is already included within the current Biennial Budget (Fund 304.) Alternative: Refuse Grant Attachment: Ordinance No. 009-22, WSDOT Fund Authorization Letter (dated 4/15/2022), PSRC Award Letter (dated 10/31/2018), and Ord Ex A - WSDOT LAA 10296. Page 193 of 351 ORDINANCE NO. 009-22 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, ACCEPTING THE TERMS AND CONDITIONS FOR CONTRACT NO. C044-22 WITH THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION FOR THE BAY STREET PEDESTRIAN PATHWAY WEST – SITUATIONAL STUDY AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT; PROVIDING FOR SEVERABILITY AND PUBLICATION; AND SETTING AN EFFECTIVE DATE. WHEREAS, on April 24, 2018, and as a requirement of the Puget Sound Regional Council (PSRC)/Kitsap Regional Coordinating Council (KRCC) Countywide Application process, the Port Orchard City Council adopted Resolution No. 020-18, thereby supporting the 2019-2022 Federal Funding Cycle Application for the Bay Street Pedestrian Pathway West – Situational Study; and WHEREAS, on October 31, 2018, the City was officially notified by PSRC that the City was successful in obtaining a grant award of $490,000, with a 13.5% funding match requirement; and WHEREAS, on April 13, 2022, the Washington State Department of Transportation (WSDOT) provided the fund authorization letter for Contract No. C044-22 (LA 10296) with the City of Port Orchard to memorialize the award and set forth the terms and conditions upon which the grant is awarded, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the Port Orchard City Council has determined it to be in the best interest of the City to enter into Contract No. C044-22 with WSDOT and accept the grant on the terms and conditions stated therein for the Bay Street Pedestrian Pathway West – Situational Study; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby authorizes the Mayor’s execution of Contract No. C044-22 with the Washington State Department of Transportation (LA 10296) for the Bay Street Pedestrian Pathway West – Situational Study. SECTION 2. Severability. If any section, sentence, clause or phrase of this Ordinance should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 3. Publication. This Ordinance shall be published by an approved summary Page 194 of 351 Ordinance No. 009-22 Page 2 of 2 consisting of the title. SECTION 4. Effective Date. This Ordinance shall take effect and be in full force and effect five days after publication, as provided by law. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the Clerk in authentication of such passage this 10th day of May 2022. Robert Putaansuu, Mayor ATTEST: SPONSOR: Brandy Wallace, MMC, City Clerk Cindy Lucarelli, Councilmember APPROVED AS TO FORM: Charlotte Archer, City Attorney PUBLISHED: EFFECTIVE DATE: Page 195 of 351 Page 196 of 351 Page 197 of 351 Page 198 of 351 Page 199 of 351 Page 200 of 351 BAY STREET PEDESTRIAN PATHWAY WEST, SITUATIONAL STUDY STPUL-9918(021) LA10296 DESCIUPTION OF EXISTING FACILITY: The proposed alignment of the Bay Street Pedestrian Pathway West, Situational Study (partially located along the historic Mosquito Fleet Trail) consists of 1) a segment of exi'sting sidewalk along the Port of Bremerton's Port Orchard Marina, 2) a segment along either the waterfront or Bay Street/SR 166, between the Port Orchard Marina and the Port Orchard Boulevard/Bay Street/SR 166 intersection, and 3) a segment along Port Orchard Boulevard from Bay Street/SR 1.66 to Tremont Street. DESCRIPTION OF PROPOSED WORK: The Bay Street Pedestrian Pathway West, Situational Study is a 1.5-mile long investigation of feasibility of connecting the current terminus of the Bay Street Pedestrian Pathway (Downtown Kitsap Transit Foot Ferry Terminal at Sidney Avenue) with the easterly terminus of the Tremont Street Widening Project (intersection of Tremont Street and Port Orchard Boulevard) with the combination of a Multi-Modal Pathway and a Complete Street. Page 201 of 351 April 15, 2022 Mr. Mark Dorsey City Engineer City of Port Orchard 216 Prospect Street Port Orchard, Washington 98366 City of Port Orchard Bay Street Pedestrian Pathway West Study STPUL-9918(021) FUND AUTHORIZATION Dear Mr. Dorsey: We have received FHWA fund authorization, effective April 11, 2022, for this project as follows: PHASE TOTAL FEDERAL SHARE Planning $566,474 $490,000 As a condition of authorization, you must show continuous project progress through monthly billings, until your project is complete. Failure to show continuous progress may result in your project becoming inactive per 23 CFR 630.106(a) (5) and subject to de-obligation of all federal funds and agreement closure. Enclosed for your information and file is a fully executed copy of Local Agency Agreement LA10296 between WSDOT and your agency. All costs exceeding those shown on this agreement are the sole responsibility of your agency. Any costs incurred after the Project Agreement End Date shown on the agreement are not eligible for federal reimbursement. In addition, all eligible costs incurred prior to the End Date must be billed within sixty (60) days of the End Date or they are ineligible for federal reimbursement. Please submit all future project correspondence to your Region Local Programs Engineer, Bryan Dias. Sincerely, Stephanie Tax Manager, Program Management Local Programs ST:jg:ml Enclosure cc: Bryan Dias, Olympic Region Local Programs Engineer, MS 47440 Page 202 of 351 Page 203 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: The City needs to routinely inspect and maintain catch basins and associated piping throughout the City. By this Resolution, the City Council would authorize the Mayor to execute a contract with Olson Brothers Pro-Vac, LLC for the 2022 Stormwater Catch Basin and Pipe Maintenance Project. On March 29, 2022, Public Works staff established a list of qualified contractors from the 2022 MRSC Small Works Roster for the Main Category – Storm Drainage Facility Construction, Repair and Maintenance and Sub-Category – Catch Basin Cleaning/Vactoring/Jet Rodding, to perform the 2022 Stormwater Catch Basin and Pipe Maintenance Project. A copy of that list of qualified contractors is attached to the Resolution as Exhibit A. On April 4, 2022, and pursuant to Resolution No. 042-20, as amended (see Section 5 – Bid Procedures), the City’s Public Works Department emailed an Invitation to Bid for 2022 Stormwater Catch Basin and Pipe Maintenance to five (5) qualified contractors on the list. One (1) bid was received by the April 18, 2022, 2:00pm deadline, at which time Olson Brothers Pro-Vac, LLC was deemed the presumed responsive and the qualified low bidder. Final bid amounts were as follows: Name of Contractor Bid Total On April 19, 2022, the City’s Public Works Department Staff completed the MRSC Mandatory Bidder Responsibility Checklist and determined that the Olson Brothers Pro-Vac, LLC bid of $57,125.71 (applicable tax included) was the lowest qualified bid. The Public Works Department has confirmed that the bidding procedures for Public Works have been followed. Recommendation: Staff recommends that the City Council adopt Resolution No. 046-22, authorizing the Mayor to execute Contract No. C049-22 with Olson Brothers Pro-Vac, LLC for the 2022 Stormwater Catch Basin and Pipe Maintenance Project in the amount of $57,125.71. Relationship to Comprehensive Plan: Utilities – Stormwater. Motion for Consideration: I move to adopt Resolution No. 046-22, authorizing the Mayor to execute Contract No. C049-22 with Olson Brothers Pro-Vac, LLC for the 2022 Stormwater Catch Basin and Pipe Maintenance Project in the amount of $57,125.71. Page 204 of 351 Staff Report 7F Page 2 of 2 Fiscal Impact: The 2021-2022 Biennial Budget allocated $150,000.00 for this activity. (421.05.531.20.40) $63,773.41 was used in 2021 for C057-21. Alternatives: Do not approve. Attachments: Resolution No. 046-22, Ex. A – MRSC Roster, Ex. B - Small Works Contract No. C049-22. Page 205 of 351 RESOLUTION NO. 046-22 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, APPROVING SMALL WORKS CONTRACT NO. C049-22 WITH OLSON BROTHERS PRO-VAC, LLC FOR THE 2022 STORMWATER CATCH BASIN AND PIPE MAINTENANCE PROJECT AND DOCUMENTING THE SMALL PUBLIC WORKS ROSTER PROCUREMENT PROCEDURES. WHEREAS, as performed annually since 2013, the Municipal Research and Services Center of Washington (MRSC) solicited on behalf of participating local government agencies within Washington State (including the City of Port Orchard) for the 2022 MRSC Small Public Works Roster; and WHEREAS, on March 29, 2022, pursuant to RCW 39.04.155, the City’s Public Works Department established a roster of qualified contractors from the 2022 MRSC Small Works Roster, a copy of which is attached hereto as Exhibit A, for the Main Category – Storm Drainage Facility Construction, Repair and Maintenance and Sub-Category – Catch Basin Cleaning/Vactoring/Jet Rodding; and WHEREAS, on April 4, 2022, and pursuant to Resolution No. 042-20, as amended, at Section 5.0 Bid Procedures, the City’s Public Works Department issued an email Invitation to Bid for 2022 Stormwater Catch Basin and Pipe Maintenance Project to five (5) contractors on the selected roster; and WHEREAS, on April 18, 2022, the City’s Public Works Department received one (1) bid by the 2:00pm deadline, and Olson Brothers Pro-Vac, LLC submitted the apparent lowest, qualified bid for the 2022 Stormwater Catch Basin and Pipe Maintenance Project; and WHEREAS, on April 19, 2022, the City’s Public Works Department completed the MRSC Mandatory Bidder Responsibility Checklist and confirmed Olson Brothers Pro-Vac, LLC as the lowest, qualified bidder; and WHEREAS, the Port Orchard City Council, at the 2015 recommendation of the State Auditor’s Office, wishes to document their selection/procurement process as described above for this particular contract by Resolution; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. Page 206 of 351 Resolution No. ___ Page 2 of 2 THAT: The City Council approves and authorizes the Mayor to execute Contract No. C049-22 with Olson Brothers Pro-Vac, LLC for the 2022 Stormwater Catch Basin and Pipe Maintenance Project, a copy of which is attached hereto as Exhibit B and incorporated herein by this reference. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage on this 10th day of May 2022. ____________________________________ Robert Putaansuu, Mayor ATTEST: ____________________________ Brandy Wallace, MMC, City Clerk Page 207 of 351 Page 208 of 351 Page 209 of 351 Page 210 of 351 Page 211 of 351 Page 212 of 351 Page 213 of 351 Page 214 of 351 Page 215 of 351 Page 216 of 351 Page 217 of 351 Page 218 of 351 Page 219 of 351 Page 220 of 351 Page 221 of 351 Page 222 of 351 Page 223 of 351 Page 224 of 351 Page 225 of 351 Page 226 of 351 Page 227 of 351 Page 228 of 351 Page 229 of 351 Page 230 of 351 Page 231 of 351 Page 232 of 351 Page 233 of 351 Page 234 of 351 Page 235 of 351 Page 236 of 351 05/04/2022 RSC Insurance Brokerage, Inc. 1350 Avenue of the Americas 18th Floor New York NY 10019 Linda Wright lwright@krautergroup.com Olson Brothers Pro Vac LLC 2412 Inter Ave Puyallup WA 98373 Continental Casualty Ins 20443 Navigators Insurance Company 42307 Berkley Assurance Company 39462 CL2212554993 A STOP GAP Liability Y Y 6079756997 11/16/2021 11/16/2022 1,000,000 1,000,000 15,000 1,000,000 2,000,000 2,000,000 A Y Y 6079761990 11/16/2021 11/16/2022 1,000,000 B Y Y CH21EXC921841IV 11/16/2021 11/16/2022 5,000,000 5,000,000 Prdcts- Completed Ops 5,000,000 C Pollution Liability PCAB50175361121 11/16/2021 11/16/2022 Each Occurrence $3,000,000 Aggregate $3,000,000 Retroactive Date 5/24/2021 Project: 2022 Stormwater Catch Basin & Pipe Maintenance CITY OF PORT ORCHARD, WASHINGTON is shown as additional insured on the General Liability, Auto Liability, and Umbrella Liability policies as required by written contract subject to policy terms, conditions and exclusions. A Waiver of Subrogation applies in favor of the certificate holder on the General Liability, Auto Liability, Umbrella Liability, and Worker’s Compensation policies. CITY OF PORT ORCHARD, WASHINGTON 216 Prospect Street Port Orchard,WA 98366 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY Page 237 of 351 Olson Brothers Pro Vac LLCRSC Insurance Brokerage, Inc. 25 Certificate of Liability Insurance: Notes STOP GAP Liability Policy # 6079756997 11/16/2021-2022 $1,000,000 Bodily Injury by Accident- Ea. Accident $1,000,000 Bodily Injury by Disease- Aggregate Limit $1,000,000 Bodily Injury by Disease- Ea. Employee Limit ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: Page 238 of 351 CNA PARAMOUNT Blanket Additional Insured -Owners,Lessees or Contractors -with Products-Completed Operations Coverage Endorsement This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART It is understood and agreed as follows: I.WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part,but only with respect to liability for bodily injury,property damage or personal and advertising injury caused in whole or in part by your acts or omissions,or the acts or omissions of those acting on your behalf: A.in the performance of your ongoing operations subject to such written contract;or B.in the performance of your work subject to such written contract,but only with respect to bodily injury or property damage included in the products-completed operations hazard,and only if: 1.the written contract requires you to provide the additional insured such coverage;and 2.this coverage part provides such coverage. II.But if the written contract requires: A.additional insured coverage under the 11-85 edition,10-93 edition,or 10-01 edition of CG2010,or under the 10- 01 edition of CG2037;or B.additional insured coverage with "arising out of"language;or C.additional insured coverage to the greatest extent permissible by law; then paragraph I.above is deleted in its entirety and replaced by the following: WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part,but only with respect to liability for bodily injury,property damage or personal and advertising injury arising out of your work that is subject to such written contract. III.Subject always to the terms and conditions of this policy,including the limits of insurance,the Insurer will not provide such additional insured with: A.coverage broader than required by the written contract;or B.a higher limit of insurance than required by the written contract. IV.The insurance granted by this endorsement to the additional insured does not apply to bodily injury,property damage,or personal and advertising injury arising out of: A.the rendering of,or the failure to render,any professional architectural,engineering,or surveying services, including: 1.the preparing,approving,or failing to prepare or approve maps,shop drawings,opinions,reports,surveys, field orders,change orders or drawings and specifications;and 2.supervisory,inspection,architectural or engineering activities;or B.any premises or work for which the additional insured is specifically listed as an additional insured on another endorsement attached to this coverage part. V.Under COMMERCIAL GENERAL LIABILITY CONDITIONS,the Condition entitled Other Insurance is amended to add the following,which supersedes any provision to the contrary in this Condition or elsewhere in this coverage part: 6079756997CNA75079XX(10-16)Policy No: 9Page1 of 2 Endorsement No: CONTINENTAL CASUALTY COMPANY 11/16/2021EffectiveDate: OLSON BROTHERS PRO-VAC, LLCInsuredName: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. 20 0 2 0 0 0 9 7 6 0 7 9 7 5 6 9 9 7 1 8 0 1 Page 239 of 351 CNA PARAMOUNT Blanket Additional Insured -Owners,Lessees or Contractors -with Products-Completed Operations Coverage Endorsement Primary and Noncontributory Insurance With respect to other insurance available to the additional insured under which the additional insured is a named insured,this insurance is primary to and will not seek contribution from such other insurance,provided that a written contract requires the insurance provided by this policy to be: 1.primary and non-contributing with other insurance available to the additional insured;or 2.primary and to not seek contribution from any other insurance available to the additional insured. But except as specified above,this insurance will be excess of all other insurance available to the additional insured. VI.Solely with respect to the insurance granted by this endorsement,the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: The Condition entitled Duties In The Event of Occurrence,Offense,Claim or Suit is amended with the addition of the following: Any additional insured pursuant to this endorsement will as soon as practicable: 1.give the Insurer written notice of any claim,or any occurrence or offense which may result in a claim; 2.send the Insurer copies of all legal papers received,and otherwise cooperate with the Insurer in the investigation, defense,or settlement of the claim;and 3.make available any other insurance,and tender the defense and indemnity of any claim to any other insurer or self-insurer,whose policy or program applies to a loss that the Insurer covers under this coverage part.However, if the written contract requires this insurance to be primary and non-contributory,this paragraph 3.does not apply to insurance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured. VII.Solely with respect to the insurance granted by this endorsement,the section entitled DEFINITIONS is amended to add the following definition: Written contract means a written contract or written agreement that requires you to make a person or organization an additional insured on this coverage part,provided the contract or agreement: A.is currently in effect or becomes effective during the term of this policy;and B.was executed prior to: 1.the bodily injury or property damage;or 2.the offense that caused the personal and advertising injury; for which the additional insured seeks coverage. Any coverage granted by this endorsement shall apply solely to the extent permissible by law. All other terms and conditions of the Policy remain unchanged. This endorsement,which forms a part of and is for attachment to the Policy issued by the designated Insurers,takes effect on the effective date of said Policy at the hour stated in said Policy,unless another effective date is shown below,and expires concurrently with said Policy. 6079756997CNA75079XX(10-16)Policy No: 9Page2 of 2 Endorsement No: CONTINENTAL CASUALTY COMPANY 11/16/2021EffectiveDate: OLSON BROTHERS PRO-VAC, LLCInsuredName: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 240 of 351 CNA PARAMOUNT Contractors'General Liability Extension Endorsement B.Solely for the purpose of the coverage provided by this PROPERTY DAMAGE –ELEVATORS Provision,the Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of the other insurance,whether primary,excess,contingent or on any other basis that is Property insurance covering property of others damaged from the use of elevators. 23.SUPPLEMENTARY PAYMENTS The section entitled SUPPLEMENTARY PAYMENTS –COVERAGES A AND B is amended as follows: A.Paragraph 1.b.is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000. limit;and B.Paragraph 1.d.is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000.limit. 24.UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named Insured's Coverage Part,the Insurer will not deny coverage under this Coverage Part because of such failure. 25.WAIVER OF SUBROGATION -BLANKET Under CONDITIONS,the condition entitled Transfer Of Rights Of Recovery Against Others To Us is amended to add the following: The Insurer waives any right of recovery the Insurer may have against any person or organization because of payments the Insurer makes for injury or damage arising out of: 1.the Named Insured's ongoing operations;or 2.your work included in the products-completed operations hazard. However,this waiver applies only when the Named Insured has agreed in writing to waive such rights of recovery in a written contract or written agreement,and only if such contract or agreement: 1.is in effect or becomes effective during the term of this Coverage Part;and 2.was executed prior to the bodily injury,property damage or personal and advertising injury giving rise to the claim. 26.WRAP-UP EXTENSION:OCIP,CCIP,OR CONSOLIDATED (WRAP-UP)INSURANCE PROGRAMS Note:The following provision does not apply to any public construction project in the state of Oklahoma,nor to any construction project in the state of Alaska,that is not permitted to be insured under a consolidated (wrap-up) insurance program by applicable state statute or regulation. If the endorsement EXCLUSION –CONSTRUCTION WRAP-UP is attached to this policy,or another exclusionary endorsement pertaining to Owner Controlled Insurance Programs (O.C.I.P.)or Contractor Controlled Insurance Programs (C.C.I.P.)is attached,then the following changes apply: A.The following wording is added to the above-referenced endorsement: With respect to a consolidated (wrap-up)insurance program project in which the Named Insured is or was involved,this exclusion does not apply to those sums the Named Insured become legally obligated to pay as damages because of: 1.Bodily injury,property damage,or personal or advertising injury that occurs during the Named Insured's ongoing operations at the project,or during such operations of anyone acting on the Named Insured's behalf;nor 6079756997CNA74705XX(1-15)Policy No: 6Page16 of 17 Endorsement No: CONTINENTAL CASUALTY COMPANY 11/16/2021EffectiveDate: OLSON BROTHERS PRO-VAC, LLCInsuredName: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 241 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: On February 4, 2022, the City of Port Orchard applied for and successfully received a State-funded grant of $75,000 from the Washington State Department of Commerce under the authority granted by Chapter 39.4 RCW for the development of a Housing Action Plan. The Port Orchard City Council authorized the Mayor to execute the Washington State Department of Commerce Interagency Agreement with the City of Port Orchard through Growth Management Services for the Housing Action Plan Implementation Grant to adopt a Housing Action Plan at the April 12, 2022 City Council meeting. The City has selected a consultant, Makers Architecture and Urban Design, to develop a Housing Action Plan for the City of Port Orchard. The Housing Action Plan. On January 5, 2022, the City DCD used its consultant roster hosted by MRSC to select a consultant for personal services, under a main category of Design and Planning and a subcategory of Community Planning, Development Regulation, Codes, & Zoning, Housing and Homelessness Assessments and Planning, Urban Planning. After reviewing statements of qualification posted on the roster, the City selected Makers Architecture and Urban Design and requested a scope and fee structure for Housing Action Plan services. The Housing Action Plan should encourage the construction of additional affordable and market rate housing in a greater variety of housing types and at prices that are accessible to a greater variety of incomes. The Housing Action Plan will include strategies directed at the for-profit single-family home market and quantify existing and projected housing needs for all income levels, analyze population and employment trends, consider strategies to minimize displacement of low-income residents, and provide for participation and input from community members and stakeholders. The Housing Action Plan will review and evaluate the current housing element adopted pursuant to RCW 36.70A.070, including an evaluation of success in attaining planned housing types and units, achievement of goals and policies, and implementation of the schedule of programs and actions., and be incorporated into the City of Port Orchard Comprehensive Plan as part of the 2024 Comprehensive Plan periodic update. Page 242 of 351 Staff Report 7G Page 2 of 2 A contract was negotiated for an amount not to exceed $75,000 through June 2023. The scope provides for a variety of services and the fee structure varies depending on the service provided. The fee schedule is attached to the contract as Exhibit B. Recommendation: Staff recommends approval of a resolution authorizing the Mayor to execute a contract with Makers Architecture and Urban Design as presented. Relationship to Comprehensive Plan: Chapter 3 – Housing. In addition, the Housing Action Plan will inform the 2024 update to the City’s Housing Element of the Comprehensive Plan. Motion for consideration: “I move to adopt a resolution authorizing the Mayor to execute a contract with Makers Architecture and Urban Design to develop a Housing Action Plan consistent with the requirements established in the Washington State Department of Commerce Interagency Agreement as presented.” Fiscal Impact: The contract is not to exceed $75,000 during the contract term. Alternatives: Do not approve the contract, request changes to the contract scope and fee. Attachments: Resolution, Contract, and Exhibits. Page 243 of 351 RESOLUTION NO. ___ A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT WITH MAKERS ARCHITECTURE AND URBAN DESIGN, LLP FOR THE PREPARATION OF A HOUSING ACTION PLAN. WHEREAS, On February 4, 2022, the City of Port Orchard applied for and successfully received a State-funded grant of $75,000 from the Washington State Department of Commerce under the authority granted by Chapter 39.4 RCW for the development of a Housing Action Plan; and WHEREAS, on April 12, 2022 the City of Port Orchard executed the Washington State Department of Commerce Interagency Agreement with the City of Port Orchard through Growth Management Services for the Housing Action Plan Implementation Grant to adopt a Housing Action Plan in the amount of $75,000; and WHEREAS, on May 3, 2022 the Washington State Department of Commerce executed the Washington State Department of Commerce Interagency Agreement with the City of Port Orchard for the development of a Housing Action Plan; and WHEREAS, in accordance with the City’s Procurement Policies, staff evaluated the statements of qualification of 4 firms available through the MRSC consultant roster under the main category of Design and Planning and the Sub-categories of Community Planning, Development Regulations, Codes, & Zoning, Housing Assessments and Planning, and Urban Planning, and determined that Makers Architecture and Urban Design LLP was the most highly qualified firm; and WHEREAS, Staff negotiated a contract with Makers Architecture and Urban Design for the development of a Housing Action Plan and recommends Council approval of the selected consultant; and now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. THAT: The City Council approves of and authorizes the Mayor to execute a Contract with Makers Architecture and Urban Design LLP for the development of a Housing Action Plan, in the amount of $75,000. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. Page 244 of 351 Resolution No. ___ Page 2 of 2 PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 10th day of May,2022. Robert Putaansuu, Mayor ATTEST: Brandy Wallace, MMC, City Clerk Page 245 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 1 of 17 Updated 4/2022 IBDR Port Orchard Contract #: XXXXX Authorized Amount: $75,000 Date Start: May 11, 2022 Date End: June 30, 2023 CONSULTANT SERVICES AGREEMENT This Agreement is for Consultant/Professional Services THIS AGREEMENT is entered into by and between the City of Port Orchard, Washington, a municipal corporation organized under the laws of the State of Washington (“City”) and Makers Architecture and Urban Design LLP, (“Consultant”) organized under the laws of the State of Washington Limited Liability Partnership, located and doing business at 500 Union Street, Suite 700, Seattle, Washington, 98101-2396, (206) 652-5080, Bob Bengford (hereinafter the "Consultant"). RECITALS: WHEREAS, the City desires to have certain services performed for its residents; and WHEREAS, the City has selected the Consultant to perform such services pursuant to certain terms and conditions; and NOW, THEREFORE, in consideration of the mutual benefits and conditions set forth below, the parties agree as follows: AGREEMENT: 1. Scope of Services to be Performed by Consultant. The Consultant shall perform those services described on Exhibit “A,” which is attached hereto and incorporated herein by this reference as if set forth in full. In performing such services, the Consultant shall at all times comply with all federal, state, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Consultant shall perform the services diligently and completely and in accordance with professional standards of conduct and performance. The Consultant shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. If the services provided hereunder are funded in whole or in part under a Grant Funding Agreement, then Consultant will comply with the terms of such Grant Funding Agreement to ensure that the City is able to obtain the maximum funding under such Grant Funding Agreement. If this applies, the City will provide the Consultant with a copy of the Grant Funding Agreement. If the services provided hereunder are funded in whole or in part under a Grant Funding Agreement, then Consultant will comply with the terms of such Grant Funding Agreement to ensure that the City is able to obtain the maximum funding under such Grant Funding Agreement. If this applies, the City will provide the Consultant with a copy of the Grant Funding Agreement. Page 246 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 2 of 17 Updated 4/2022 IBDR 2. Compensation. The City shall pay the Consultant for services rendered according to the rates and methods set forth below. LUMP SUM. Compensation for these services set forth in Exhibit A shall be a Lump Sum of $_____. X TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $ 75,000___________ without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit “B.” TIME AND MATERIALS. Compensation for these services shall be on a time and materials basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit “B.” OTHER_____________________________________________________________ 3. Payment. A. The Consultant shall maintain time and expense records and provide them to the City monthly after services have been performed, along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. B. All invoices shall be paid by City warrant within thirty (30) days of receipt of a proper invoice. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the Parties shall immediately make every effort to settle the disputed portion. C. The Consultant shall keep cost records and accounts pertaining to this Agreement available for inspection by City representatives for three (3) years after final payment unless a longer period is required by a third-party agreement. Copies shall be made available on request. D. On the effective date of this Agreement (or shortly thereafter), the Consultant shall comply with all federal and state laws applicable to independent contractors, including, but not limited to, the maintenance of a separate set of books and records that reflect all items of income and expenses of the Consultant’s business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to show that the services performed by the Consultant under this Agreement shall not give rise to an employer-employee relationship between the parties, which is subject to Title 51 RCW, Industrial Insurance. E. If the services rendered do not meet the requirements of the Agreement, the Consultant will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. The City shall pay the Consultant for services rendered within ten (10) days after City Council voucher approval. However, if the City objects to all or any portion of an invoice, it shall notify Consultant and reserves the option to only pay that Page 247 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 3 of 17 Updated 4/2022 IBDR portion of the invoice not in dispute. In that event, the Parties will immediately make every effort to settle the disputed portion. F. The City reserves the right to direct the Consultant's compensated services before reaching the maximum amount. 4. Duration of Agreement. A. This Agreement shall be in full force and effect for a period commencing on May 11, 2022 and ending June 30, 2023 unless sooner terminated under the provisions of this Agreement. The City reserves the right to offer two (2) one-year extensions prior to expiration of the Agreement to retain the Consultant’s services. B. Time is of the essence of this Agreement in each and all of its provisions in which performance is required. If delays beyond the Consultant's reasonable control occur, the Parties will negotiate in good faith to determine whether an extension is appropriate. C. The Consultant shall obtain a City of Port Orchard business license prior to commencing work pursuant to a written Notice to Proceed. D. The Consultant is authorized to proceed with services upon receipt of a written Notice to Proceed. 5. Standard of Care. The Consultant represents and warrants that it has the requisite training, skill, and experience necessary to provide the services under this Agreement and is appropriately accredited and licensed by all applicable agencies and governmental entities. Services provided by the Consultant under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. 6. Ownership and Use of Documents. A. Ownership. Any records, files, documents, drawings, specifications, data, or information, regardless of form or format, and all other materials produced by the Consultant in connection with the services provided to the City, shall be the property of the City whether the project for which they were created is executed or not. B. Records preservation. Consultant understands that this Agreement is with a government agency and thus all records created or used in the course of Consultant’s work for the City are considered “public records” and are subject to disclosure by the City under the Public Records Act, Chapter 42.56 RCW (“the Act”). Consultant agrees to safeguard and preserve records in accordance with the Act. The City may be required, upon request, to disclose the Agreement, and the documents and records submitted to the City by Consultant, unless an exemption under the Public Records Act applies. If the City receives a public records request and asks Consultant to search its files for responsive records, Consultant agrees to make a prompt and thorough search through its files for responsive records and to promptly turn over Page 248 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 4 of 17 Updated 4/2022 IBDR any responsive records to the City’s public records officer at no cost to the City. 7. Relationship of the Parties; Independent Consultant. The Parties intend that an independent contractor-client relationship will be created by this Agreement. As the Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub-consultant of the Consultant shall be or shall be deemed to be the employee, agent, representative or sub-consultant of the City. In the performance of the work, the Consultant is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained under this Agreement. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-consultants of the Consultant. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Consultant, or any employee of the Consultant. The Consultant will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives, and sub-consultants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the Consultant performs hereunder. 8. Indemnification. Consultant shall defend, indemnify, and hold the City, its officers, officials, employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorneys’ fees, arising out of or resulting from the acts, errors or omissions of the Consultant in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, and volunteers, the Consultant's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THIS WAIVER HAS BEEN MUTUALLY NEGOTIATED BY THE PARTIES. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Insurance. Page 249 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 5 of 17 Updated 4/2022 IBDR The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. A. Minimum Scope of Insurance. Consultant shall obtain insurance of the types described below: i. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. ii. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent Consultants and personal injury and advertising injury. The City shall be named as an insured under the Consultant’s Commercial General Liability insurance policy with respect to the work performed for the City. iii. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. iv. Professional Liability insurance appropriate to the Consultant’s profession. B. Minimum Amounts of Insurance. Consultant shall maintain the following insurance limits: i. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. ii. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. iii. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provision. The Consultant’s Automobile Liability, Commercial General Liability, and Professional Liability insurance policies are to contain, or be endorsed to contain, that they shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant’s insurance and shall not contribute with it. D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-VII. E. Verification of Coverage. The Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the Page 250 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 6 of 17 Updated 4/2022 IBDR additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. F. Notice of Cancellation. The Consultant shall provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days’ notice to the Consultant to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Consultant from the City. H. No Limitation. Consultant’s maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the Consultant to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity. 10. Record Keeping and Reporting. A. The Consultant shall maintain accounts and records, including personnel, property, financial, and programmatic records, which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed pursuant to this Agreement. The Consultant shall also maintain such other records as may be deemed necessary by the City to ensure proper accounting of all funds contributed by the City to the performance of this Agreement. B. The foregoing records shall be maintained for a period of seven (7) years after termination of this Agreement unless permission to destroy them is granted by the Office of the Archivist in accordance with Chapter 40.14 RCW and by the City. 11. City’s Right of Inspection and Audit. A. Even though the Consultant is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or become applicable within the terms of this Agreement to the Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. B. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by the City during the performance of this Agreement. All work products, data, studies, worksheets, models, reports, and other materials in support of the performance of the service, work products, or outcomes fulfilling the contractual obligations are the products of the City. Page 251 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 7 of 17 Updated 4/2022 IBDR 12. Work Performed at the Consultant's Risk. The Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub-consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at the Consultant's own risk, and the Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held by the Consultant for use in connection with the work. 13. Termination. A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Consultant’s insolvency or bankruptcy, or the Consultant’s assignment for the benefit of creditors. B. Termination with cause. This Agreement may be terminated upon the default of the Consultant and the failure of the Consultant to cure such default within a reasonable time after receiving written notice of the default. C. Rights Upon Termination. i. With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of the Consultant pursuant to this Agreement shall be submitted to the City, and the Consultant shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. The Consultant shall not be entitled to any reallocation of cost, profit or overhead. The Consultant shall not in any event be entitled to anticipated profit on work not performed because of such termination. The Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. ii. Default. If the Agreement is terminated for default, the Consultant shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Consultant. The Consultant shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained, by the City by reason of such default. D. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable expenses, and shall be subject to verification. The Consultant shall resume performance of services under this Agreement without delay when the suspension period ends. E. Notice of Termination or Suspension. If delivered to the Consultant in person, termination shall be effective immediately upon the Consultant’s receipt of the City’s written notice or Page 252 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 8 of 17 Updated 4/2022 IBDR such date as stated in the City’s notice of termination, whichever is later. Notice of suspension shall be given to the Consultant in writing upon one week's advance notice to the Consultant. Such notice shall indicate the anticipated period of suspension. Notice may also be delivered to the Consultant at the address set forth in the “Notices” Section herein. F. Nothing in this Subsection shall prevent the City from seeking any legal remedies it may otherwise have for the violation or nonperformance of any provisions of this Agreement. 14. Discrimination Prohibited. A. The Consultant agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, color, national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. Violation of this Section shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. 15. Force Majeure. Notwithstanding anything to the contrary in this Agreement, any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, acts of war, terrorist acts, inability to obtain services, labor, or materials or reasonable substitutes therefor, governmental actions, governmental laws, regulations or restrictions, civil commotions, casualty, actual or threatened public health emergency (including, without limitation, epidemic, pandemic, famine, disease, plague, quarantine, and other significant public health risk), governmental edicts, actions, declarations or quarantines by a governmental entity or health organization, breaches in cybersecurity, and other causes beyond the reasonable control of the Party obligated to perform, regardless of whether such other causes are (i) foreseeable or unforeseeable or (ii) related to the specifically enumerated events in this paragraph (collectively, a "Force Majeure"), shall excuse the performance of such Party for a period equal to any such prevention, delay or stoppage. To the extent this Agreement specifies a time period for performance of an obligation of either Party, that time period shall be extended by the period of any delay in such Party's performance caused by a Force Majeure. Provided however, that the current COVID-19 pandemic shall not be considered a Force Majeure unless constraints on a Party’s performance that result from the pandemic become substantially more onerous after the effective date of this Agreement. 16. Assignment and Subcontract. The Consultant shall not assign or subcontract any portion of the services contemplated by this Agreement without the prior written consent of the City. Any assignment made without the prior approval of the City is void. 17. Conflict of Interest. Page 253 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 9 of 17 Updated 4/2022 IBDR The Consultant represents to the City that it has no conflict of interest in performing any of the services set forth in Exhibit “A.” In the event that the Consultant is asked to perform services for a project with which it may have a conflict, Consultant will immediately disclose such conflict to the City. 18. Confidentiality. All information regarding the City obtained by the Consultant in performance of this Agreement shall be considered confidential. Breach of confidentiality by the Consultant shall be grounds for immediate termination. 19. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will so notify the Consultant and shall not be obligated to make payments for services or amounts incurred after the end of the current fiscal period. This Agreement will terminate upon the completion of all remaining services for which funds are allocated. No penalty or expense shall accrue to the City in the event that the terms of the provision are effectuated. 20. Employment of State Retirees. The City is a “DRS-covered employer” which is an organization that employs one or more members of any retirement system administered by the Washington State Department of Retirement Systems (DRS). Pursuant to RCW 41.50.139(1) and WAC 415-02-325(1), the City is required to elicit on a written form if any of the Contractor’s employees providing services to the City retired using the 2008 Early Retirement Factors (ERFs), or if the Contractor is owned by an individual who retired using the 2008 ERFs, and whether the nature of the service and compensation would result in a retirement benefit being suspended. Failure to make this determination exposes the City to significant liability for pension overpayments. As a result, before commencing work under this Agreement, Contractor shall determine whether any of its employees providing services to the City or any of the Contractor’s owners retired using the 2008 ERFs, and shall immediately notify the City and shall promptly complete the form provided by the City after this notification is made. This notification to DRS could impact the payment of retirement benefits to employees and owners of Contractor. Contractor shall indemnify, defend, and hold harmless the City from any and all claims, damages, or other liability, including attorneys’ fees and costs, relating to a claim by DRS of a pension overpayment caused by or resulting from Contractor’s failure to comply with the terms of this provision. This provision shall survive termination of this Agreement. 21. Entire Agreement. This Agreement contains the entire agreement between the parties, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind either of the parties. If there is a conflict between the terms and conditions of this Agreement and the attached exhibits, then the terms and conditions of this Agreement shall prevail over the exhibits. Either party may request changes to the Agreement. Changes which are mutually agreed upon shall be incorporated by written amendments to this Agreement. Page 254 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 10 of 17 Updated 4/2022 IBDR 22. Non-waiver of Breach. The failure of either party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. 23. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Consultant. 24. Notices. All notices or other communications required or permitted under this Agreement shall be in writing and shall be (a) personally delivered, in which case the notice or communication shall be deemed given on the date of receipt at the office of the addressee; (b) sent by registered or certified mail, postage prepaid, return receipt requested, in which case the notice or communication shall be deemed given three (3) business days after the date of deposit in the United States mail; or (c) sent by overnight delivery using a nationally recognized overnight courier service, in which case the notice or communication shall be deemed given one business day after the date of deposit with such courier. In addition, all notices shall also be emailed, however, email does not substitute for an official notice. Notices shall be sent to the following addresses: Notices to the City of Port Orchard shall be sent to the following address: City Clerk City of Port Orchard 216 Prospect Street Port Orchard, Washington 98366 Bwallace@cityofportorchard.us Phone: 360.876.4407 Fax: 360.895.9029 Notices to the Consultant shall be sent to the following address: Bob Bengford Makers Architecture and Urban Design 500 Union Street, Suite 700 Seattle, WA 98101-2396 Phone No.: (206) 652-5080 Email: bobb@makersarch.com 25. Resolution of Disputes; Governing Law. A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision’s true intent or meaning. The Mayor shall also decide all questions which may arise between Page 255 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 11 of 17 Updated 4/2022 IBDR the parties relative to the actual services provided or to the sufficiency of the performance hereunder. B. If any dispute arises between the City and the Consultant under any of the provisions of this Agreement which cannot be resolved by the Mayor’s determination in a reasonable time, or if the Consultant does not agree with the Mayor’s decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. C. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorneys’ fees from the other Party. 26. Compliance with Laws. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. 27. Title VI. The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts comply with these regulations. Therefore, during the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees as follows: A. Compliance with Regulations. The Consultant will comply with the Acts and the Regulations relative to Nondiscrimination in Federally-assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this Agreement. B. Nondiscrimination. The Consultant, with regard to the work performed by it during this Agreement, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income-level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Consultant will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Agreement covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment. In all solicitations, either by competitive bidding, or negotiation made by the Consultant for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Consultant of the Consultant’s obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination on the grounds of Page 256 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 12 of 17 Updated 4/2022 IBDR race, color, national origin, sex, age, disability, income-level, or LEP. D. Information and Reports. The Consultant will provide all information and reports required by the Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Consultant is in the exclusive possession of another who fails or refuses to furnish the information, the Consultant will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance. In the event of the Consultant’s noncompliance with the non- discrimination provisions of this Agreement, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: i. withholding payments to the Consultant under the Agreement until the contractor complies; and/or ii. cancelling, terminating, or suspending the Agreement, in whole or in part. F. Incorporation of Provisions. The Consultant will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Consultant will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Consultant becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Consultant may request the City to enter into any litigation to protect the interests of the City. In addition, the Consultant may request the United States to enter into the litigation to protect the interests of the United States. 28. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. 29. Severability. Any provision or part of this Agreement held to be void or unenforceable under any law or regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon the City and the Consultant, who agree that the Agreement shall be reformed to replace such stricken provision or part with a valid and enforceable provision that comes as close as reasonably possible to expressing the intent of the stricken provision. IN WITNESS WHEREOF, the City and the Consultant have executed this Agreement as of the dates listed below. CONSULTANT CITY OF PORT ORCHARD Page 257 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 13 of 17 Updated 4/2022 IBDR By: ______________________________ By: ______________________________ Robert Putaansuu, Mayor Title: _____________________________ Date: _____________________________ Date: _____________________________ ATTEST/AUTHENTICATE Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM Port Orchard City Attorney’s Office Page 258 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 14 of 17 Updated 4/2022 IBDR EXHIBIT A Scope of Services to be Provided by Consultant. The Consultant shall furnish services including, but not limited to, the following outlined and attached separately. Page 259 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 15 of 17 Updated 4/2022 IBDR EXHIBIT B Rates for Services to be Provided by Consultant. The Consultant shall furnish the services in accordance with the rates specified below or attached hereto, as Exhibit B. [NOTE: If this is a multi-year contract and the rates may be increased after the first or second year, then Exhibit B should contain a minimum of a 60-day advance notice provision for raising rates with a limitation, i.e., no more than annual CPI-U for Seattle/Tacoma/Bellevue. If this circumstance is present, please run the adjustment language through the City Attorney’s Office.] Page 260 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 16 of 17 Updated 4/2022 IBDR APPENDIX A During the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U .S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U .S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC§ 471, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub- recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title Page 261 of 351 City of Port Orchard and Makers Architecture and Urban Design LLP Professional Service Agreement Contract No. ________ Page 17 of 17 Updated 4/2022 IBDR VI, you must take reasonable steps to -ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Page 262 of 351 MAKERS architecture and urban design Page 1 7G 05 Port Orchard HAP Hourly Rates Exhibit B Port Orchard Housing Action Plan Hourly Rates MAKERS Leland Page 263 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: In 2021, the City’s Police Department identified the need to equip its police officers with body- worn camera systems. The department formed a staff workgroup that researched options and eventually identified a body-worn camera system that met the requirements of the City. Pursuant to RCW 39.34.080 and .040, the City is a member of the purchasing cooperative Sourcewell (No. 26305), formally known as the National Joint Power Alliance (NJPA), a Minnesota Public Agency. Staff reviewed the proposals evaluated and selected by Sourcewell for body-worn camera systems and identified Axon Enterprises, Inc., as an approved vendor through Sourcewell (Contract No. 010720-AXN) for supplying equipment, products, or services. On April 25, 2022, Axon Enterprise, Inc. provided the City a quote for purchase of the body-worn camera system of $59,876.30 (plus applicable tax), annually for a five-year (5) contract, for a total purchase price of $326,804.94. Staff reviewed the procurement process by Sourcewell for this contract to confirm the price quoted was consistent with Sourcewell Contract No. 010720-AXN, procurement requirements were met by Sourcewell, and staff obtained the necessary documentation regarding procurement. On April 25, 2022, the City’s Police Department completed the Interlocal Agreement Purchase Checklist for Sourcewell. The proposed purchase will initially be financed with monies from the city’s Criminal Justice Fund and will require a budget amendment. Subsequent funding will be included in biennial budgets and provided by the General Fund. The department is budgeted for twenty-three (23) commissioned peace officers. The purchase of twenty-five (25) body-worn cameras is recommended to account for body-worn cameras that may be damaged by use or other factors. As components of the body-worn camera system, this contract includes updated Tasers, the 2021 Core+ operating system, and the Dynamic Bundle which includes VR training and redaction software. Recommendation: Staff recommends that the City Council adopt a Resolution authorizing the purchase of twenty-five (25) body-worn cameras, plus associated hardware, software, and a five-year maintenance agreement, from Axon Enterprise, Inc. through Sourcewell Contract No. 010720-AXN for a total purchase price of $326,804.94 (applicable tax included). Relationship to Comprehensive Plan: N/A. Page 264 of 351 Staff Report 7H Page 2 of 2 Motion for consideration: I move to adopt a Resolution authorizing the purchase of twenty-five (25) body-worn cameras, plus associated hardware, software, and a five-year maintenance agreement, from Axon Enterprise, Inc. through Sourcewell Contract No. 010720-AXN, for a total purchase price of $326,804.94 (applicable tax included). Fiscal Impact: A budget amendment will be needed and the Criminal Justice Fund will be impacted by $60,000 in fiscal year 2022. The program will be included in the 2023-2024 Biennial Budget. Alternatives: Not authorize the Resolution and provide further guidance. Attachments: Resolution, Vendor Quote, Interlocal Agreement Checklist. Page 265 of 351 RESOLUTION NO. ___ A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, APPROVING THE PURCHASE OF BODY-WORN CAMERAS FOR THE POLICE DEPARTMENT AND DOCUMENTING PROCUREMENT PROCEDURES. WHEREAS, the Police Department identified the need for body-worn cameras, staff researched and identified body-worn camera systems meeting the operational and logistical requirements of the City; and WHEREAS, pursuant to RCW 39.34.080 and .040, the City is a member of the purchasing cooperative Sourcewell (No. 26305), formally known as the National Joint Power Alliance (NJPA), a Minnesota Public Agency; and WHEREAS, on April 22, 2022, Police Department staff reviewed the selected vendors through Sourcewell for body-worn camera systems and identified Axon Enterprise Inc. as a qualified, approved vendor through Sourcewell (Contract No. 010720-AXN) for supplying bod- worn camera systems; and WHEREAS, the selected body-worn camera system includes updated Tasers, the 2021 Core+ operating system, and the Dynamic Bindle which includes VR training and redaction software; and WHEREAS, on April 22, 2022, Police Department staff requested a quote from Axon Enterprise, Inc., and on April 25, 2022, Axon Enterprise, Inc., provided a quote of $59,876.30 (plus applicable tax) annually for a five-year (5) contract for a total purchase price of $326,804.94; and WHEREAS, Staff reviewed the procurement process utilized by Sourcewell to confirm the price quoted was consistent with Sourcewell Contract No. 010720-AXN, procurement requirements were met by Sourcewell, and Staff obtained the necessary documentation regarding procurement; and WHEREAS, on April 25, 2022, the City’s Police Department completed the Interlocal Agreement Purchase Checklist for Sourcewell; and WHEREAS, funding for this purchase will initially be financed with monies from the city’s Criminal Justice Fund and will require a budget amendment, and subsequent funding will be included in biennial budgets and provided by the General Fund; and WHEREAS, the City Council has approved procurement policies which require City Council authorization for purchasing items costing $35,000 or more; and Page 266 of 351 Resolution No. ___ Page 2 of 2 WHEREAS, this purchase is for an amount that exceeds the $35,000 authorization limit; and WHEREAS, the Port Orchard City Council, at the 2015 recommendation of the State Auditor's Office, wishes to document their selection/procurement process as described herein for this purchase by resolution; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. THAT: The City Council approves the purchase of the body-worn camera system, including associated hardware, software, and a five-year maintenance agreement, listed in Exhibit A hereto and incorporated herein by this reference. The Mayor or his designee is authorized to take action consistent with this authorization. THAT: The Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the City Clerk in authentication of such passage on this 10th day of May 2022. ____________________________________ Robert Putaansuu, Mayor ATTEST: ____________________________ Brandy Wallace, MMC, City Clerk Page 267 of 351 CITY OF PORT ORCHARD PURCHASES THROUGH INTERLOCAL AGREEMENTS City Contract No.: XXXXX Interlocal Agreement with the Host Agency (government agency or Purchasing Co-Op name): Sourcewell No. 26305 Item Description: ___Body-worn camera system__________________ Do you have an Interlocal agreement signed with the Contract (host) Agency? ☒ If yes, where is it filed: Clerks Office ☐ If no, get a mutually signed Agreement in place before you continue. Sourcewell Contract No.#: 010720-AXN If you have an Office of State Procurement (OSP) contract number you may skip the remainder of this test because the OSP contracts comply with remaining requirements and retain the documentation on hand for SAO to review in the OSP offices. Is this a technology contract? ☐ If yes, do your own rules allow for technology contracts to be negotiated? ☐ If your own rules allow for negotiated IT contracts, you can skip this test. Is this a services contract? ☐ If yes, do your own rules allow services to be negotiated? ☐ If your own rules allow for negotiated services, you can skip the remainder of the test. Are you using this as only one of multiple quotes, for a small purchase? ☐ If yes, you can skip the remainder of the test. Your purchase will not mandate the sealed bid rules. ☐ If no, complete the remainder of the checklist. Checklist for Required Compliance Is the Host agency a public agency 1? ☒ Yes ☐ No If Yes, what state laws apply to Host Agency: Washington to run a newspaper ad in their local paper and did they comply ☒☐ require a newspaper ad. For others, attach the ad or place into the file website? ☒☐ of date, address shall be attached or placed the file. If No, you cannot use the bid. Host agency’s state procurement laws? ☒☐ from Host Agency. If No, you cannot use the bid. 1 RCW 39.34.020 (1), “public agency” means any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, quasi municipal corporations, special purpose districts, and local service districts; any agency of the state government; any agency of the United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state Page 268 of 351 MAKERS architecture and urban design Page 1 7H 04 - Port Orchard HAP SOW v3_Exhibit A Port Orchard Housing Action Plan Scope of Work April 27, 2022 Grant Objective Develop a housing action plan to encourage construction of additional affordable and market rate housing in a greater variety of housing types and at prices that are accessible to a greater variety of incomes, including strategies aimed at the for-profit single-family home market. Overview The scope of work is organized into these overarching actions: Project startup Action 1 – Existing conditions review Action 2 – Provide for participation and input from community members Action 3 – Evaluation and development of policies and tools for increasing housing diversity Action 4 – Project adoption Budget Research Questions The following research questions will guide the team’s work under each action and step. 1. What are the most pressing housing needs in Port Orchard for each segment of the population (based on income, ability/disability, family size/type, etc.)? 2. What are we most concerned about and most hopeful about for residential development in Port Orchard over the next 10 years? 3. What code updates can be made to meet the needs of all economic segments of the Port Orchard community? 4. What are the biggest longstanding or new barriers to affordable and diverse residential development in Port Orchard? 5. What new or updated tools, policies, staff capacity, and funding are mostly likely to meet Port Orchard’s housing goals related to affordability and choice? Assumptions • The ideal deadline for this project is April 1, 2023, although the end of the fiscal year (June 30, 2023) is also possible to use for flex time. • The consultant team will primarily attend meetings virtually. The consultant team may attend a limited number of in-person meetings when face-to-face communication will be most beneficial. In-person meetings should be scheduled at least two weeks in advance. • Travel and/or remote engagement support costs will be billed to the relevant Action budget (see budget section below for further details). • The budget assumes 12-15 stakeholder interview meetings. • Bob Bengford will be the partner-in-charge and strategic advisor; Scott Bonjukian will be the project manager; Markus Johnson will be the project planner; Rachel Miller will Page 269 of 351 MAKERS architecture and urban design Page 2 7H 04 - Port Orchard HAP SOW v3_Exhibit A provide strategic public engagement expertise; and other MAKERS staff will provide support as necessary based on project needs and availability. • The project deliverables need to include specific recommendations that can be implemented immediately. They also need to support the update of the Housing Element of the Port Orchard Comprehensive Plan (in 2024), especially with regards to recent GMA updates on housing needs data. Project Startup This phase of the project will consist of the following work. Work sequencing will overlap with the performance of Action 1 and Action 2. Background Review Review of related City documents and studies including key elements of the Comprehensive Plan and the Affordable Housing Strategic Plan. Data Request The consultant team will send staff a concise request for data such as permitting information, GIS data, recent site plans, and other information that will be needed to support the project. Internal Kickoff Meeting Project kickoff meeting with multidepartment City staff and key members of the City Council to discuss project priorities, housing issues, schedule, outcome, and public engagement participants. Public Kickoff Meeting Following the internal kickoff meeting, a public-facing kickoff meeting will be held to introduce the public to the project team and the project objectives. Key project stakeholders, identified at the internal kickoff meeting, could be invited. MAKERS will lead a presentation on Port Orchard’s current housing policies, basic existing conditions information gathered to-date, and ask for priorities and concerns. The public kickoff meeting should be scheduled on the agenda of a regular City Council meeting or committee meeting, rather than a standalone event, to save effort and expense. Housing Tour Staff will lead the consultant team on a citywide tour and windshield survey to view recent housing development. This could be combined with the date of kickoff meeting(s) listed above and/or with in-person stakeholder interviews conducted during Action 2. Action 1 – Existing conditions review Page 270 of 351 MAKERS architecture and urban design Page 3 7H 04 - Port Orchard HAP SOW v3_Exhibit A Steps Description Start Date End Date Lead/Support needs for all income levels, including extremely low-income households, with documentation of housing and household characteristics, and cost-burdened housing in the city. Collect data on rental properties (e.g., type, size, cost, and age) and planned housing types and units, achievement of goals and policies, and implementation of the schedule of programs development regulations and permitting ability of existing zoning to provide for Action 1 Deliverables: • Meeting notes • Project goal or vision statement (see RCW 36.70A.070(2)(d) for guidance) • Existing Conditions and Housing Needs Analysis Report (deliverable 1) Action 2 – Provide for participation and input from community members 2.1 Identify groups that should be included in outreach. June 2022 August 2022 Staff/MAKERS 2.2 Conduct public outreach to develop goals and objectives. demand for housing types among current Page 271 of 351 MAKERS architecture and urban design Page 4 7H 04 - Port Orchard HAP SOW v3_Exhibit A Steps Description Start Date End Date Lead/Support from housing advocates, housing providers and social service organizations. Stakeholders may include City Councilmembers, residents, developers, neighborhood associations, tenants, and Action 2 Deliverables: • Public Engagement Plan (deliverable 2a) • Community survey • Stakeholder interviews • Summary of all public engagement results (deliverable 2b) Action 3 – Evaluation and development of policies and tools for increasing housing diversity 3.1 Develop strategies to increase the supply of housing, and variety of housing types, develop strategies to accommodate including strategies to minimize displacement of low-income residents accommodate existing and projected needs of all economic segments of the community, including documenting programs and actions needed to achieve housing availability including gaps in local funding, barriers such as development regulations, result in racially disparate impacts, displacement, and exclusion in housing and identify policies and regulations to address to implement the recommendations of the Action 3 Deliverables: • Draft Housing Action Plan (deliverable 3) Page 272 of 351 MAKERS architecture and urban design Page 5 7H 04 - Port Orchard HAP SOW v3_Exhibit A Action 4 – Project Adoption 4.1 Present draft HAP and public hearing before the Planning Commission, make changes as the City Council, make changes as needed. Council adoption. Note: Per the terms of the grant, the Action 4 schedule is being left open to June 2023 in case of unforeseen circumstances, but it is tentatively scheduled to be completed by April 2023. Action 4 Deliverables: • Adopted Housing Action Plan (deliverable 4) • Adopting ordinance Page 273 of 351 MAKERS architecture and urban design Page 6 7H 04 - Port Orchard HAP SOW v3_Exhibit A Budget The proposed budget uses slightly different allocations between Actions 1-4 than listed in the Department of Commerce grant contract based on our experience developing Housing Action Plans. The minimum 20% of budget for Action 4 is maintained. The proposed budget also includes a new line item for travel and/or remote engagement costs. Bob Bengford Scott Bonjukian Rachel Miller Markus Johnson Chris Zahas Sam Brookham $220 $165 $140 $105 $225 $150 Hours Amount Action 1 Existing conditions review 10 15 0 10 20 20 75 $ 13,225 2 Provide for participation and input from community members 15 25 8 20 15 25 108 $ 17,770 3 Evaluation and development of policies and tools for increasing housing diversity 15 30 5 20 35 55 160 $ 27,175 4 Project adoption 10 25 5 20 20 10 90 $ 15,125 50 95 18 70 90 110 433 $ 73,295 $11,000 $15,675 $2,520 $7,350 $20,250 $16,500 $73,295 Travel expenses and/or remote engagement support (lump sum)$1,500 $ 74,795 TOTAL SUBTOTAL Hours Leland $36,545 $36,750 Port Orchard Housing Action Plan Team member role Billing rate MAKERS Page 274 of 351 1 Q-365319-44676.626KH Q-365319-44676.626KH Issued: 04/25/2022 Quote Expiration: 05/15/2022 EST Contract Start Date: 07/15/2022 Account Number: 106987 Payment Terms: N30 Delivery Method: Fedex - Ground SHIP TO BILL TO SALES REPRESENTATIVE PRIMARY CONTACT Business;Delivery;Invoice-546 Bay St Port Orchard Police Dept. -WA Kyle Hunt Donna Main 546 Bay St 546 Bay St Phone: Phone: (360) 876-1700 Port Orchard, WA 98366-5339 Port Orchard, WA 98366 Email: huntk@axon.com Email: dmain@cityofportorchard.us USA USA Fax: (480) 930-4484 Fax: (360) 876-5546 Email: Program Length 60 Months Bundle Savings $91,302.69 TOTAL COST $299,381.59 Additional Savings $0.00 ESTIMATED TOTAL W/ TAX $326,804.94 TOTAL SAVINGS $91,302.69 PAYMENT PLAN PLAN NAME INVOICE DATE AMOUNT DUE Axon Enterprise, Inc. Page 275 of 351 2 Q-365319-44676.626KH Quote Details Bundle Summary Item Description QTY Bundle: 2021 Core+ Quantity: 25 Start: 7/15/2022 End: 7/14/2027 Total: 238499.99 USD Category Item Description QTY Page 276 of 351 3 Q-365319-44676.626KH Training Live Cartridges 22175 TASER 7 LIVE CARTRIDGE, STANDOFF (3.5-DEGREE) NS 50 Training Live Cartridges 22175 TASER 7 LIVE CARTRIDGE, STANDOFF (3.5-DEGREE) NS 50 Training Live Cartridges 22176 TASER 7 LIVE CARTRIDGE, CLOSE QUARTERS (12-DEGREE) NS 50 Training Live Cartridges 22176 TASER 7 LIVE CARTRIDGE, CLOSE QUARTERS (12-DEGREE) NS 50 Training Live Cartridges 22176 TASER 7 LIVE CARTRIDGE, CLOSE QUARTERS (12-DEGREE) NS 50 Training Live Cartridges 22176 TASER 7 LIVE CARTRIDGE, CLOSE QUARTERS (12-DEGREE) NS 50 Training Live Cartridges 22176 TASER 7 LIVE CARTRIDGE, CLOSE QUARTERS (12-DEGREE) NS 50 Batteries 20018 TASER 7 BATTERY PACK, TACTICAL 30 Training Halt Cartridges 22177 TASER 7 HOOK-AND-LOOP TRN (HALT) CARTRIDGE, STANDOFF NS 50 Training Halt Cartridges 22177 TASER 7 HOOK-AND-LOOP TRN (HALT) CARTRIDGE, STANDOFF NS 50 Training Halt Cartridges 22178 TASER 7 HOOK-AND-LOOP TRN (HALT) CARTRIDGE, CLOSE QUART NS 50 Training Halt Cartridges 22178 TASER 7 HOOK-AND-LOOP TRN (HALT) CARTRIDGE, CLOSE QUART NS 50 Duty Cartridge Replenishment Program 20246 TASER 7 DUTY CARTRIDGE REPLACEMENT LICENSE 25 Docks 74200 TASER 7 6-BAY DOCK AND CORE 1 Dock Mount 70033 WALL MOUNT BRACKET, ASSY, EVIDENCE.COM DOCK 1 Dock Power Cord 71019 NORTH AMER POWER CORD FOR AB3 8-BAY, AB2 1-BAY / 6-BAY DOCK 1 Holsters 20160 TASER 7 HOLSTER - SAFARILAND, RH+CART CARRIER 25 Camera 73202 AXON BODY 3 - NA10 - US - BLK - RAPIDLOCK 25 Camera Mount 74020 MAGNET MOUNT, FLEXIBLE, AXON RAPIDLOCK 28 USB 11534 USB-C to USB-A CABLE FOR AB3 OR FLEX 2 28 Dock 74210 AXON BODY 3 - 8 BAY DOCK 4 Power Cord 71019 NORTH AMER POWER CORD FOR AB3 8-BAY, AB2 1-BAY / 6-BAY DOCK 4 Wall Mount 70033 WALL MOUNT BRACKET, ASSY, EVIDENCE.COM DOCK 4 Other 80395 EXT WARRANTY, TASER 7 HANDLE 25 Other 80374 EXT WARRANTY, TASER 7 BATTERY PACK 30 Other 80396 EXT WARRANTY, TASER 7 SIX BAY DOCK 1 Bundle: VR Bundle Quantity: 1 Start: 7/15/2022 End: 7/14/2027 Total: 31131.6 USD Category Item Description QTY Other 20378 HTC FOCUS 3 VR HEADSET 1 Other 20370 FULL VR TASER 7 ADD-ON USER ACCESS 25 Other 100197 HTC FOCUS 3 VR HEADSET - WARRANTY 1 Other 20188 VR CONTROLLER KIT PELICAN CASE 1 Controller 20298 VR-ENABLED GLOCK 19 CONTROLLER 1 Tablet 20296 SAMSUNG S7+ TABLET FOR VR SIMULATOR 1 Tablet Case 20297 SAMSUNG S7+ TABLET CASE FOR VR SIMULATOR 1 Standoff Cartridges 22196 TASER 7 VR CARTRIDGE, STANDOFF (3.5-DEGREE)2 CQ Cartridges 22197 TASER 7 VR CARTRIDGE, CLOSE-QUARTERS (12-DEGREE)2 Warranty 100198 AXON VR CONTROLLER KIT - WARRANTY 1 Page 277 of 351 4 Q-365319-44676.626KH Bundle: Redaction and Citizen Quantity: 1 Start: 7/15/2022 End: 7/14/2027 Total: 29750 USD Category Item Description QTY Other 73618 CITIZEN FOR COMMUNITIES USER LICENSE 25 Other 73478 REDACTION ASSISTANT USER LICENSE 25 Other 85144 AXON STARTER 1 Tax is estimated based on rates applicable at date of quote and subject to change at time of invoicing. If a tax exemption certificate should be applied, please submit prior to invoicing. Contract Sourcewell Contract #010720-AXN is incorporated by reference into the terms and conditions of this Agreement. In the event of conflict the terms of Axon's Master Services and Purchasing Agreement shall govern. Page 278 of 351 5 Q-365319-44676.626KH Standard Terms and Conditions Axon Enterprise Inc. Sales Terms and Conditions Axon Master Services and Purchasing Agreement: This Quote is limited to and conditional upon your acceptance of the provisions set forth herein and Axon’s Master Services and Purchasing Agreement (posted at www.axon.com/legal/sales-terms-and-conditions), as well as the attached Statement of Work (SOW) for Axon Fleet and/or Axon Interview Room purchase, if applicable. In the event you and Axon have entered into a prior agreement to govern all future purchases, that agreement shall govern to the extent it includes the products and services being purchased and does not conflict with the Axon Customer Experience Improvement Program Appendix as described below. ACEIP: The Axon Customer Experience Improvement Program Appendix, which includes the sharing of de-identified segments of Agency Content with Axon to develop new products and improve your product experience (posted at www.axon.com/legal/sales-terms-and-conditions), is incorporated herein by reference. By signing below, you agree to the terms of the Axon Customer Experience Improvement Program. Acceptance of Terms: Any purchase order issued in response to this Quote is subject solely to the above referenced terms and conditions. By signing below, you represent that you are lawfully able to enter into contracts. If you are signing on behalf of an entity (including but not limited to the company, municipality, or government agency for whom you work), you represent to Axon that you have legal authority to bind that entity. If you do not have this authority, please do not sign this Quote. Page 279 of 351 6 Q-365319-44676.626KH \s1\\d1\ Signature Date Signed 4/25/2022 Page 280 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: In 2019, the City was awarded $12,000,000 in funding by the Kitsap Public Facilities District for its Community Event Center project (C082-19). The City and its consultant, Rice Fergus Miller has completed tasks 1-3 as provided in the ILA and are currently working on tasks 4 and 5. The City recently approved Amendment #6 to its contract with Rice Fergus Miller for the Community Event Center Project. The tasks in Amendment #6 exceeded the original amount of funding as shown in Amendment #2 of the ILA between the City and KPFD. KPFD has agreed to reallocated funding for the project by shifting funds for construction into the design phases of the contract. In addition, the contract scope language for tasks 4 and 5 are being updated to match the scope of work in contract amendment #6 with RFM. Relationship to Comprehensive Plan: The CEC project is listed in the city’s comprehensive plan. Recommendation: Staff recommends approval of Amendment #3 to Contract 082-19 with Kitsap Public Facilities District. Motion for consideration: “I move to approve Amendment #3 to Contract 082-19 with Kitsap Public Facilities District.” Fiscal Impact: This contract amendment does not have a fiscal impact on the City. Alternatives: Do not approve Amendment #3. Attachments: Amendment #3 (clean), Amendment #2 to the ILA with KPFD. Page 281 of 351 1 THIRD AMENDED - DRAFT REGIONAL CENTER INTERLOCAL AGREEMENT Between the Kitsap Public Facilities District and the City of Port Orchard This REGIONAL CENTER INTERLOCAL AGREEMENT (the "Agreement") is made pursuant to Chapter 39.34 RCW between the City of Port Orchard, a Washington non- charter code city acting under Chapter 35A.12 RCW ("Port Orchard"), and the Kitsap Public Facilities District, a Washington special purpose district operating under Chapter 36.100 RCW (the "District"). WHEREAS, pursuant to RCW 36.100.030(1) and RCW 35.57.020, the District is authorized to acquire, construct, own, remodel, maintain, equip, repair, and operate a regional center, and pursuant to Chapter 36.100.030(2), the District may enter into interlocal agreements with other agencies to operate such facilities. For these purposes, "regional center" means a convention, conference, or special events center under RCW 35.57.020(1)(a), or any combination of facilities and related parking facilities, serving a regional population constructed after July 25, 1999, at cost of at least ten million dollars. WHEREAS, pursuant to RCW 82.14.390, the District is entitled to receive certain local sales taxes which the District may use for the development of qualifying regional centers. WHEREAS, the District believes it has the financial capacity to support the development of one or more new regional centers in Kitsap County and has requested proposals from public agencies for new regional centers in Kitsap County. WHEREAS, Port Orchard has proposed a project (the "Project"), which qualifies as a regional center and which is more fully described in Attachment "A" (Project Summary), attached hereto and incorporated by reference. WHEREAS, the District Board has completed an evaluation and review process for seven (7) new regional centers and has initially determined to proceed with further review for possible funding with several applicants. WHEREAS, the District anticipates collaborating with Port Orchard on the development of a regional center, specifically, The Port Orchard Community Events Center, where the District's primary role would be to provide funding to create public benefits for Kitsap County. WHEREAS, the District and Port Orchard are committed to undertaking their respective tasks in the "Agreement Tasks" attached hereto as Attachment "B," as amended and incorporated by reference. WHEREAS, District funding is subject to an independent financial feasibility review prior to the issuance of any indebtedness or the long-term lease, purchase, or development of a regional facility pursuant to RCW 36.100.025. Page 282 of 351 2 WHEREAS, the City and the District previously amended the Agreement on July 27, 2020, First Amendment, and further amended the Agreement on or about 8/27/2021 and now agree to a further amendment (“Third Amendment”) herein. NOW, THEREFORE, in consideration of the mutual obligations and benefits herein, the parties agree as follows: 1. Purpose of Agreement. The purpose and intent of this Agreement is for Port Orchard and the District to collaborate efficiently and effectively in order for the parties to determine the feasibility of the Project and, if feasible, construct the Project with funds from Port Orchard in part and from the District in part. 2. Port Orchard Funding Request. Port Orchard has requested and has been awarded by the District, funding in the amount of $12,000,000.00 (Twelve Million Dollars) for the purposes more fully described in Attachment "A" and in accordance with the phasing in Attachment "B," as amended 3. Port Orchard Obligations. Port Orchard shall undertake the "Agreement Tasks", as set forth in Attachment "B", except for those assigned to the District in the attachment or this Agreement. In addition, Port Orchard shall undertake the following: 3.1 Contract Administration. Port Orchard shall be responsible for all aspects of the contract administration for the Agreement Tasks, which shall include, but not be limited to, advertising, bidding, awarding, and monitoring the contract(s), as generally required by any applicable RCW. However, all invoiced or out-of-pocket expenses related to the project, except staff salary, benefits, and overhead costs, are eligible for reimbursement. This includes but is not limited to advertising, permitting, connection fees, testing, sub-consulting, and construction. 3.2 Reporting. Port Orchard shall regularly (not less than quarterly) meet with the District to evaluate the progress of its Agreement Tasks. The meetings can be held remotely as needed, consistent with applicable Open Public Meetings Act (OPMA) requirements. 3.3 Timing of Agreement Tasks. The anticipated timing of the Agreement Tasks is set forth in Attachment "B," as amended. 3.4 Recognition. Port Orchard shall publicly recognize the District's contribution to the Project in a manner to be agreed upon. The District may require some identification of the Project as "Regional Center" or "Special Event Center." 4. The District's Obligations. The District shall undertake the tasks set forth in Attachment "B" and shall undertake the following tasks: 4.1 Contract Administration. The District shall be responsible for all aspects on contract administration for the Market Analysis (Task 6), Financial Viability, and Risk Assessment tasks described in Attachment "B", including advertising, bidding, awarding, and monitoring. Page 283 of 351 3 4.2. Funding. The District shall fund the tasks set forth in Attachment "B” in an amount not to exceed $12,000,000.00 (Twelve Million Dollars). The dollar amounts for each task listed in Attachment “B” are estimates for each project phase but may be shifted as needed, provided that funds allocated to Task 7 may not be used prior to proceeding with Task 7. In the event the funding remains from Tasks 1-6, these funds may be spent on subsequent Tasks. In the event the City proposes to shift or reallocate funds to different Tasks, it shall first provide written notice to the KPFD, who shall have a right of approval, not to be unreasonably withheld. 5. Process for Payment. 5.1 Accounting and Reporting. Port Orchard intends to utilize its existing accounts and fund structure to manage this project. However, Port Orchard will demonstrate the capability to separately account and report all activity, funds, and expenses related to this project. All funds related to this grant will be tracked under a separate project or account number and separately reported to the PFD. 5.2 Advance Deposits. The District agrees to provide an initial payment of $200,000 (“Initial Payment”) to Port Orchard for cash flow purposes to allow Port Orchard to begin the project and process invoices that are consistent with the approved contract and subtasks in a timely manner. Port Orchard will follow the identified procedures, for seeking reimbursements for expenses in this Agreement thereafter. 5.3 Use of Funds. The funds from the District shall solely be used for the payment of invoices for the Agreement Tasks and no other purposes. Port Orchard may not reimburse itself for salary, benefits, and overhead but all other out-of-pocket expenses related to the project are eligible for reimbursement. 5.4 Release of Funds. Port Orchard shall only release funds for the Agreement Tasks upon receipt of invoices for work performed, which work complies with the terms and conditions of the contracts for the Agreement Tasks or as specified in Task 3 of attachment B, as amended. Further, Port Orchard shall notify the District of any proposed payment for review and consent, not to be unreasonably withheld or delayed. 5.5 Increase in Consultant Contract Amounts. Port Orchard will promptly inform the District if any of the consultants/service providers inform Port Orchard that the consultant/service provider is proposing an increase in a contract sum. The District shall promptly, in its sole discretion, determine if the District's contribution to the contract sum should be increased. 5.6 Refund of District Funds. Port Orchard shall not be required to reimburse the District for the funds transmitted to Port Orchard that are either: (i) paid to a consultant/service provider; or (ii) committed to be paid to a consultant/service provider pursuant to a valid contract between Port Orchard and that consultant/service provider. Otherwise, unused funds shall be reimbursed to the District. 5.7 Port Orchard Matching Contributions. All accounting of staff time, Port Orchard Page 284 of 351 4 expenses including consultant fees, and Port Orchard contributions directly related to the project will be considered as part of the matching element of this project for District funding. 5.8 Final Accounting. Within sixty (60) days of the completion of the Assignment Tasks, Port Orchard shall provide a final written accounting of the District funds. 6. Feasibility Assessment, Performance Requirements, Conditions/ Contingencies/Checkpoints. The District and Port Orchard are committed to funding the Project as set forth in this Agreement, subject to the following conditions: 6.1 Mutual Determination of Feasibility. See Attachment “B", Task 1. 6.2 Independent Feasibility Review - Department of Commerce. Irrespective of the parties' determination of feasibility as set forth above in Subsection 6.1, the District's funding commitment is subject to the statutory independent feasibility review of RCW 36.100.025. While the parties may cooperate to coordinate the reviews contemplated by subsections 6.1 and 6.2, those reviews may be conducted at different times as necessary. 6.3 Availability of Funds. This Agreement is contingent upon funding from the District. In the event that the District's expected funding payable to Port Orchard hereunder is withdrawn, reduced, limited, or not otherwise available after the effective date of this Agreement, this Agreement may be terminated by either party. 6.4 Port Orchard's Performance of its Assigned Tasks. District funding is conditioned upon Port Orchard's timely completion (as measured by the deadlines set out in Attachment “B” as amended) of its Assigned Tasks including, but not limited to, necessary property acquisition, obtaining necessary permits, and obtaining necessary funding in addition to the funding from the District. 6.5 Adoption of Operational Standards. Once the parties have determined that the Project meets applicable feasibility reviews, and before funding is committed for construction, the parties shall adopt a supplemental Interlocal Agreement addressing construction review and operational standards, replacement/reserve funding standards, reporting obligations, and any special standards applicable only to the Project, consistent with similar Interlocal Agreements with other regional center partners. 6.6 Process for Termination. In the event any of the required conditions are not satisfied, the Agreement may be terminated, by either party delivering thirty (30) days’ written notice to the other. The termination notice shall specify the date on which the Agreement shall terminate. 7. Notice and Project Coordinators. The following individuals are the Project Coordinators and official contacts for Port Orchard and the District. Any notice, request, approval, direction, invoice, statement, or other communication which may, or is required to be given under this Agreement, shall be in writing and shall be deemed to have been given if hand-delivered, sent by a nationally recognized overnight delivery service, or if deposited in the U.S. mail and sent by Page 285 of 351 5 certified mail, return receipt requested, postage prepaid to the Project Coordinators: For Port Orchard: Robert Putaansuu, Mayor City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Phone: 360-876-4407 Email: rputaansuu@cityofportorchard.us For the District: Russ Shiplet Executive Director Kitsap Public Facilities District 9230 Bay Shore Drive NW, Suite 101 Silverdale, WA 98383 Phone: 360-698 1885 Email: execdirector@kitsap-pfd.org All notices shall be deemed complete upon actual receipt or refusal to accept delivery. 8. Non-Assignability. Neither party may assign any interest in this Agreement and shall not transfer any interest in this Agreement without the prior written consent of the other party. 9. Independent Governments - No Liability. Each party is and shall remain an independent government. This Agreement does not create a partnership or other similar arrangement. The parties shall not be liable for the acts or omissions of the other party or their respective public officials, employees, or agents. 10. Term of Agreement. Except as otherwise stated herein, the term of this Agreement shall commence upon execution by both of the parties and shall continue until the earlier of when all Tasks have been executed or December 31, 2025. This Agreement may be reasonably extended by the parties as may be necessary to complete the Assignment Tasks, as the parties otherwise agree. 11. Amendment. No modification or amendment of this Agreement may be made except by a written document signed by both parties. 12. Counterparts and Electronic Transmission. This Agreement may be signed in counterparts. Electronic transmission of any signed original document and retransmission of any signed electronic transmission shall be the same as delivery of an original document. 13. Governing Law. This Agreement, and the right of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Washington, and the parties agree that in any such action, jurisdiction and venue shall lie exclusively in Kitsap County, Washington. Page 286 of 351 6 14. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 15. Interpretation. Each party participated in this Agreement and has had this Agreement reviewed by legal counsel. Therefore, any language herein shall not be construed against either party on the basis of which party drafted the particular language. 16. True and Full Value. Port Orchard and the District have each independently determined to itself that: (i) it has the authority to enter into this Agreement; and (ii) the promises and covenants received from the other party represent "true and full value" received by it pursuant to RCW 43.09.210. 17. Survivability. All obligations contained herein shall survive termination until fully performed. 18. Entire Agreement. This Agreement, including all predicate paragraphs and exhibits that are incorporated into this Agreement, contains all the understandings between the parties. Each party represents that no promises, representations, or commitments have been made by the other as a basis for this Agreement, which has not been reduced to writing herein. No oral promises or representations shall be binding upon any party whether made in the past or to be made in the future unless such promises or representations are reduced to writing in the form of a written modification of this Agreement executed by both parties. IN WITNESS WHEREOF, Port Orchard and the District have executed this Agreement as of the date last written below. CITY OF PORT ORCHARD _________________________________ By: Robert Putaansuu Its: Mayor Date: _____________ KITSAP PUBLIC FACILITIES DISTRICT __Daron Jagodzinske________ By: Daron Jagodzinske Its: Chair Date: _April 28, 2022_______ _Patrick Hatchel___________ By: Patrick Hatchel__________________ _Brian Lawler____________________ Page 287 of 351 7 ATTACHMENT "A" PROJECT SUMMARY/DESCRIPTION The City of Port Orchard proposes to construct an approximately 24,000 square foot Port Orchard Community Events Center POCEC) building including adjacent site improvements. The POCEC will provide a central gathering place and multi-purpose facility in downtown Port Orchard that will support a multitude of functions for local and regional use. The facility will house our Regional Library branch and support large events such as galas, community festivals, conferences, concerts, service group meetings and more. The project will also support the redevelopment of the shoreline area with pedestrian and water access. The facility will include a catering kitchen and other amenities to support events requiring food service. The project will serve as a centerpiece of a much larger redevelopment project that includes parking, office, commercial, retail, and residential development. Page 288 of 351 8 ATTACHMENT "B" AGREEMENT TASKS - COMMUNITY EVENT CENTER (CEC) CITY OF PORT ORCHARD-KITSAP PUBLIC FACILITIES DISTRICT (WITH ESTIMATED BUDGETS AND TIMING) The following tasks shall be undertaken by, and will be the responsibility of, the City of Port Orchard, unless otherwise noted. Task 1. Consultant Selection and Contract. $0 (8 months (from December 2019)) Task 1.1. City's Consultant Selection - RCW 39.80 Architectural and Engineering Services - Request for Qualifications. Deliverable 1.1. Professional services contract. The consultant selection will be made for all project phases. The contract will be phased as each subsequent scope of work is developed based on the results of previous tasks. The contract(s) will be approved in phases. The District reserves the right to review and approve the City's selection of consultants, such approval not to be unreasonably withheld. Task 2. Project Management, Planning, Outreach, Design, and Cost Estimates. $400,000 (16 Months) Task 2.1. Prepare draft management plan. Deliverable 2.1. Draft Management Plan. Task 2.2. Draft Goals and Objectives. Deliverable 2.2. Establish written project goals and objectives for the SKCEC including user identification. Task 2.3. Initiate public outreach, prepare draft concept plan, and draft space programming. Deliverable 2.3. Draft Concept Plan and Space Programming Report. Task 2.4. Space Programing and Needs Assessment. Deliverable 2.4. Preliminary Space Programming and Needs Report. Task 2.5. Analyze sites and select preferred location. Deliverable 2.5. Evaluate 3 sites for SKCEC construction consideration and prepare design schemes for each site. Prepare report with alternatives for City Council decision on site selection. Task 2.6. Prepare Market Analysis, Financial Viability, and Risk Assessment for preferred site. Deliverable 2.6. Feasibility Report. Page 289 of 351 9 Task 2.7. Perform additional public outreach for the preferred alternative. Deliverable 2.7. Summary of public input. Task 2.8. Finalize Space Programming and Needs Assessment. Deliverable 2.8. Provide preliminary SKCEC monetary operational feasibility report and final space programming report. Task 2.9. Preferred Alternative Site Analysis. Deliverable 2.9. Prepare a technical report(s) to inform architectural and site design. This may include (depending on site selection) a geotechnical report, phase 2 environmental assessment, biological evaluation, topographic survey, archeological and cultural resources report, and shorelines mitigation and engineering report. Task 2.10. Property Ownership/Master Plan. Deliverable 2.10. Provide information to City consultant concerning the downtown master plan. Assist the City to determine SKCEC property and building ownership. Task 2.11. Schematic Design. Deliverable 2.11. Provide preliminary schematic design to 25%. Prepare project cost estimates and scope of work for subsequent task(s). Task 2.12. City Council Action. City to review all deliverables and decide whether to accept an additional $600,000 (estimated) for Task 4. Task 3. Property Acquisition. $1,000,000 Task 3.1. Acquire property from Kitsap Bank for the Project for $2.5 M with funding of $1.2 M from the Washington State Department of Commerce; $1.0 M from the District; and $300,000 from the City. Deliverables for release of funding from District. - Signed purchase and sale agreement with Kitsap Bank for a not to exceed the purchase price of $2.5 M. - Assignment of DNR lease from Kitsap Bank, including any assignment approval from DNR. - Satisfaction of all conditions for $1.2 M Department of Commerce Grant, as set forth on June 21, 2021. Email from Beth Robinson to Nick Bond, City of Port Orchard, a copy of which is attached hereto as Exhibit 1 to this Attachment B. - Availability of at least $300,000 in City funds. - Establishment of closing escrow. - NOTE: The District shall deposit funds into closing escrow with instructions that if for any reason, the purchase of the Kitsap Bank property does not close, the District funds are to be returned to the District. Page 290 of 351 10 Task 4. Prepare 60% Design Development, Cost Estimates, and Shoreline Permit Submittal. $620,000 (estimated) (9-12 Months) Task 4.1. Prepare 60% Design Development (DD) plans and Shoreline Substantial Development Permit Application (SSDP). Deliverable 4.1. 60% Design Development (DD) including: • Design Development Documents • SEPA Checklist • Traffic Impact and Parking Analysis • Applications for Shoreline Substantial Development Permit (SSDP) • Assessment of seawall adjacent to the CEC Site. Task 4.2. Cost Estimates. Deliverable 3.2. Consultant to provide cost estimates for completion of plans, specifications, and bid documents for three phases of project and for construction of each phase of the project. Task4.3. Operations and Maintenance Costs and Responsibilities. Deliverable 3.3. Determine estimated facility operating costs and tenant responsibilities. Work with partners to identify operational cost responsibilities. Task 4.4 City Council Action: City to review plans and funding requirements with any project partners and decide whether to accept additional $770,000 for Task 5. Task 5. Shoreline Permits, 100% Ad Ready Construction Documents (PS&E) and Complete Applications for Development. $770,000. (estimated) (6-12 months) Task 5.1. Prepare Shoreline Substantial Development Permit (SSDP) application, submit, and provide support. Deliverable 5.1. Attend meetings and provide support for (SSDP) application. Task 5.2. Prepare 100% ad-ready construction documents (PS&E) for each phase of the approved shoreline phasing plan (CEC, overwater structures (such as a pier), Shoreline Restoration). Deliverable 5.2. 100% ad-ready construction documents (PS&E). Task 5.3. Prepare complete applications for building permits, land-disturbing activity permits (LDAP), and stormwater drainage permits (SDP). Prepare and file JARPA application if required. Deliverable 5.3. Complete application submittal packages. Task 5.4. Prepare plans for any offsite Improvements (if required under SEPA, SSDP, or as conditions of other permit approvals). Deliverable 5.4. Provide permit application submittal packets for offsite improvements. Page 291 of 351 11 Task 5 City Council Action: City to review plans and funding requirements with project partners and decide whether to accept additional funds for Task 7. The City and its partners shall raise the remaining funds or secure commitments for the full funding of Task 7 prior to accessing additional KPFD funds. Task 6. Market Analysis, Financial Viability, and Risk Assessment in accordance with KPFD guidelines (KPFD to select). Deliverable 6. KPFD's portion of the feasibility study report. Task 7. Secure Funding for Construction and Term Financing - As an alternative to the KPFD issuing bonds to cover the remaining $9.21M commitment. Task 7.1. KPFD commits percentage of sales tax rebate revenue sufficient to fund required debt service coverage based on issuer's credit rating. Deliverable 7.1. KPFD commitment of sales tax rebate revenue to satisfy bonding requirements. Task 7.2. Identify debt issuing entity. Deliverable 7.2. City, County, or Port of Bremerton identified as debt issuer. Task 7.3. Quantify debt service needs and costs based on borrowing entity and structure. Deliverable 7.3. Construction draw schedule, term debt service schedule, interest costs and other financing costs. Task 7.4. Define borrowing structure. Deliverable 7.4. Define timing and borrowing amounts needed to fund construction, needed amortization of term financing and any pledges to enhance credit of debt issuance to reduce interest costs. (Note: A binding commitment of sales tax rebate revenue will be necessary to quantify the amount of debt that can be issued. This amount should be set based on estimated required debt service coverage plus some allowance for changes in interest rates from current rates. Should the borrower require less than the committed amount, the commitment amount shall then be reduced to match the final required debt service coverage.) Task 7.5. Borrowing entity secures financing at lowest true interest cost (TIC) available in the market. Deliverable 7.5. Borrowing entity issues debt or obtains binding commitment for debt placement. Comment: Borrower should evaluate either public debt issuance or commitment from private purchaser. Page 292 of 351 12 Task 8. CEC (excludes shoreline restoration and overwater structures) Project Management, Bid Support/Bid Award, Construction Administration/Construction Management, A&E Support, Construction. $16,000,000 to $20,000,000 ($ $9,210,000 of Task 8 cost from KPFD) Task 8.1. Project management Deliverable 8.1. Overall project management and oversight. Task 8.2. Bid support/Bid award Deliverable 8.2. A&E of record provides bid support (requests for information responses, construction document amendments, bid tabulations, etc.) Task 8.3. Construction administration/Construction management Deliverable 8.3. Daily inspection reports, documentation as required, scheduling, certified payrolls, progress billing approval, etc.) Task 8.4. A&E support Deliverable 8.4. A&E of record to provide technical assistance and direction during construction. Task 8.5. CEC construction phase. Deliverable 8.5. Construction contract. Task 8.6. Miscellaneous. Deliverables 8.6. Required connection fees, impact fees and permit fees paid. Construction staking, surveying, materials testing, special inspections provided. Task 9. City to Complete Shoreline Restoration and Overwater Structures (No further KPFD involvement) Page 293 of 351 13 ATTACHMENT “B” EXHIBIT 1 June 21, 2021 Nick Bond City of Port Orchard 210 Prospect Street Port Orchard, WA 98366 Dear Nick: Congratulations! Governor Inslee recently signed the 2021-23 State Capital Budget, which includes an appropriation of $1,236,000.00 for the South Kitsap Community Events Center (Port Orchard) Project. The Department of Commerce, which will administer the project, will retain two percent (up to a maximum of $50,000) to cover our administrative costs. Accordingly, your net grant award will be $1,211,280.00. Prior to receiving funds, your organization will need to fulfill the following requirements: • Provide documentation of your organization’s financial ability to complete the project. All funds from sources other than the state must be expended, raised, or secured by documented pledges or loans. • For nonprofit grantees, any property relevant to the project must be owned or secured by a long-term lease that remains in effect for a minimum of ten years following the final payment date. A lien on owned property is also required when receiving grants over $500,000. • Prevailing wages must be paid for all construction labor costs incurred as of May 18, 2021. • Review by the Washington State Department of Archaeology and Historic Preservation and any affected Tribes (Governor’s Executive Order 21-02). • Your project may also need to comply with the state’s green buildings standards (RCW 39.35D). Please fill out the linked Contract Readiness Survey and submit at your earliest convenience. Also enclosed is a comprehensive set of contracting guidelines to assist you with the process. If you have any questions or need additional information, please contact your Project Manager, Beth Robinson, at (360) 549-6260 or Beth.Robinson@commerce.wa.gov. Sincerely, Beth Robinson Program Manager Department of Commerce Local Government Division Capital Programs Unit PO Box 42525 Olympia WA 98504-2525 Cell Phone: 360-549-6260 Page 294 of 351 1 SECOND AMENDED REGIONAL CENTER INTERLOCAL AGREEMENT Between the Kitsap Public Facilities District and the City of Port Orchard This REGIONAL CENTER INTERLOCAL AGREEMENT (the "Agreement") is made pursuant to Chapter 39.34 RCW between the City of Port Orchard, a Washington non-charter code city acting under Chapter 35A.12 RCW ("Port Orchard"), and the Kitsap Public Facilities District, a Washington special purpose district operating under Chapter 36.100 RCW (the "District"). WHEREAS, pursuant to RCW 36.100.030(1) and RCW 35.57.020, the District is authorized to acquire, construct, own, remodel, maintain, equip, repair, and operate a regional center, and pursuant to Chapter 36.100.030(2), the District may enter into interlocal agreements with other agencies to operate such facilities. For these purposes, "regional center" means a convention, conference, or special events center under RCW 35.57.020(1)(a), or any combination of facilities and related parking facilities, serving a regional population constructed after July 25, 1999, at cost of at least ten million dollars. WHEREAS, pursuant to RCW 82.14.390, the District is entitled to receive certain local sales taxes which the District may use for the development of qualifying regional centers. WHEREAS, the District believes it has the financial capacity to support the development of one or more new regional centers in Kitsap County and has requested proposals from public agencies for new regional centers in Kitsap County. WHEREAS, Port Orchard has proposed a project (the "Project"), which qualifies as a regional center and which is more fully described in Attachment "A" (Project Summary), attached hereto and incorporated by reference. WHEREAS, the District Board has completed an evaluation and review process for seven (7) new regional centers and has initially determined to proceed with further review for possible funding with several applicants. WHEREAS, the District anticipates collaborating with Port Orchard on the development of a regional center, specifically, The South Kitsap Special Events Center, where the District's primary role would be to provide funding to create public benefits for Kitsap County. WHEREAS, the District and Port Orchard are committed to undertaking their respective tasks in the "Agreement Tasks" attached hereto as Attachment "B," as amended and incorporated by reference. WHEREAS, District funding is subject to an independent financial feasibility review prior to the issuance of any indebtedness or the long-term lease, purchase, or development of a regional facility pursuant to RCW 36.100.025. Page 295 of 351 2 WHEREAS, the City and the District previously amended the Agreement in a July 27, 2020 First Amendment and now agree to a further amendment (“Second Amendment”) herein. NOW, THEREFORE, in consideration of the mutual obligations and benefits herein, the parties agree as follows: 1. Purpose of Agreement. The purpose and intent of this Agreement is for Port Orchard and the District to collaborate efficiently and effectively in order for the parties to determine the feasibility of the Project and, if feasible, construct the Project with funds from Port Orchard in part and from the District in part. 2. Port Orchard Funding Request. Port Orchard has requested, and has been awarded by the District, funding in the amount of $12,000,000.00 (Twelve Million Dollars) for the purposes more fully described in Attachment "A" and in accordance with the phasing in Attachment "B," as amended 3. Port Orchard Obligations. Port Orchard shall undertake the "Agreement Tasks", as set forth in Attachment "B", except for those assigned to the District in the attachment or this Agreement. In addition, Port Orchard shall undertake the following: 3.1 Contract Administration. Port Orchard shall be responsible for all aspects of the contract administration for the Agreement Tasks, which shall include, but not be limited to, advertising, bidding, awarding, and monitoring the contract(s), as generally required by any applicable RCW. However, all invoiced or out of pocket expenses related to the project, except staff salary, benefits, and overhead costs, are eligible for reimbursement. This includes but is not limited to advertising, permitting, connection fees, testing, sub-consulting, and construction. 3.2 Reporting. Port Orchard shall regularly (not less than quarterly) meet with the District to evaluate the progress of its Agreement Tasks. The meetings can be held remotely as needed, consistent with applicable Open Public Meetings Act (OPMA) requirements. 3.3 Timing of Agreement Tasks. The anticipated timing of the Agreement Tasks is set forth in Attachment "B," as amended. 3.4 Recognition. Port Orchard shall publicly recognize the District's contribution to the Project in a manner to be agreed upon. The District may require some identification of the Project as "Regional Center" or "Special Event Center." 4. The District's Obligations. The District shall undertake the tasks set forth in Attachment "B" and shall undertake the following tasks: 4.1 Contract Administration. The District shall be responsible for all aspects on contract administration for the Market Analysis (Task 6), Financial Viability, and Risk Assessment tasks described in Attachment "B", including advertising, bidding, awarding, and Page 296 of 351 3 monitoring. 4.2. Funding. The District shall fund the tasks set forth in Attachment "B" in an amount not to exceed $12,000,000.00 (Twelve Million Dollars). The dollar amounts for each task listed in Attachment “B” are estimates for each project phase but may be shifted as needed, provided that funds allocated to Task 7 may not be used prior to proceeding with Task 7. In the event the funding remains from Tasks 1-6, these funds may be spent on subsequent Tasks. In the event the City proposes to shift or reallocate funds to different Tasks, it shall first provide written notice to the KPFD, who shall have a right of approval, not to be unreasonably withheld. 5. Process for Payment. 5.1 Accounting and Reporting. Port Orchard intends to utilize its existing accounts and fund structure to manage this project. However, Port Orchard will demonstrate the capability to separately account and report all activity, funds and expenses related to this project. All funds related to this grant will be tracked under a separate project or account number and separately reported to the PFD. 5.2 Advance Deposits. The District agrees to provide an initial payment of $200,000 (“Initial Payment”) to Port Orchard for cash flow purposes to allow Port Orchard to begin the project and process invoices that are consistent with the approved contract and subtasks in a timely manner. Port Orchard will follow the identified procedures, for seeking reimbursements for expenses in this Agreement thereafter. 5.3 Use of Funds. The funds from the District shall solely be used for the payment of invoices for the Agreement Tasks and no other purposes. Port Orchard may not reimburse itself for salary, benefits and overhead but all other out of pocket expenses related to the project are eligible for reimbursement. 5.4 Release of Funds. Port Orchard shall only release funds for the Agreement Tasks upon receipt of invoices for work performed, which work complies with the terms and conditions of the contracts for the Agreement Tasks or as specified in Task 3 of attachment B, as amended. Further, Port Orchard shall notify the District of any proposed payment for review and consent, not to be unreasonably withheld or delayed. 5.5 Increase in Consultant Contract Amounts. Port Orchard will promptly inform the District if any of the consultants/service providers inform Port Orchard that the consultant/service provider is proposing an increase in a contract sum. The District shall promptly, in its sole discretion, determine if the District's contribution to the contract sum should be increased. 5.6 Refund of District Funds. Port Orchard shall not be required to reimburse the District for the funds transmitted to Port Orchard that are either: (i) paid to a consultant/service provider; or (ii) committed to be paid to a consultant/service provider pursuant to a valid contract between Port Orchard and that consultant/service provider. Otherwise, unused funds shall be reimbursed to the District. Page 297 of 351 4 5.7 Port Orchard Matching Contributions. All accounting of staff time, Port Orchard expenses including consultant fees and Port Orchard contributions directly related to the project will be considered as part of the matching element of this project for District funding. 5.8 Final Accounting. Within sixty (60) days of the completion of the Assignment Tasks, Port Orchard shall provide a final written accounting of the District funds. 6. Feasibility Assessment, Performance Requirements, Conditions/ Contingencies/Checkpoints. The District and Port Orchard are committed to funding the Project as set forth in this Agreement, subject to the following conditions: 6.1 Mutual Determination of Feasibility. See Attachment "B", Task 1. 6.2 Independent Feasibility Review - Department of Commerce. Irrespective of the parties' determination of feasibility as set forth above in Subsection 6.1, the District's funding commitment is subject to the statutory independent feasibility review of RCW 36.100.025. While the parties may cooperate to coordinate the reviews contemplated by subsections 6.1 and 6.2, those reviews may be conducted at different times as necessary. 6.3 Availability of Funds. This Agreement is contingent upon funding from the District. In the event that the District's expected funding payable to Port Orchard hereunder is withdrawn, reduced, limited, or not otherwise available after the effective date of this Agreement, this Agreement may be terminated by either party. 6.4 Port Orchard's Performance of its Assigned Tasks. District funding is conditioned upon Port Orchard's timely completion (as measured by the deadlines set out in Attachment “B” as amended) of its Assigned Tasks including, but not limited to, necessary property acquisition, obtaining necessary permits, and obtaining necessary funding in addition to the funding from the District. 6.5 Adoption of Operational Standards. Once the parties have determined that the Project meets applicable feasibility reviews, and before funding is committed for construction, the parties shall adopt a supplemental lnterlocal Agreement addressing construction review and operational standards, replacement/reserve funding standards, reporting obligations, and any special standards applicable only to the Project, consistent with similar lnterlocal Agreements with other regional center partners. 6.6 Process for Termination. In the event any of the required conditions are not satisfied, the Agreement may be terminated, by either party delivering thirty (30) days written notice to the other. The termination notice shall specify the date on which the Agreement shall terminate. 7. Notice and Project Coordinators. The following individuals are the Project Coordinators and official contacts for Port Orchard and the District. Any notice, request, approval, direction, invoice, statement, or other communication which may, or are required to be given under this Agreement, shall be in writing and shall be deemed to have been given if hand delivered, sent by a nationally recognized overnight delivery service, or if deposited Page 298 of 351 5 in the U.S. mail and sent by certified mail, return receipt requested, postage prepaid to the Project Coordinators: For Port Orchard: Robert Putaansuu, Mayor City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Phone: 360-876-4407 Email: rputaansuu@cityofportorchard.us For the District: Michael Walton Executive Director Kitsap Public Facilities District 9230 Bay Shore Drive NW, Suite 101 Silverdale, WA 98383 Phone: 360-698 1885 Email: mwalton@kitsap-pfd.org All notices shall be deemed complete upon actual receipt or refusal to accept delivery. 8. Non-Assignability. Neither party may assign any interest in this Agreement and shall not transfer any interest in this Agreement without the prior written consent of the other party. 9. Independent Governments - No Liability. Each party is and shall remain an independent government. This Agreement does not create a partnership or other similar arrangement. The parties shall not be liable for the acts or omissions of the other party or their respective public officials, employees, or agents. 10. Term of Agreement. Except as otherwise stated herein, the term of this Agreement shall commence upon execution by both of the parties and shall continue until the earlier of when all Tasks have been executed or December 31, 2025.This Agreement may be reasonably extended by the parties as may be necessary to complete the Assignment Tasks, as the parties otherwise agree. 11. Amendment. No modification or amendment of this Agreement may be made except by a written document signed by both parties. 12. Counterparts and Electronic Transmission. This Agreement may be signed in counterparts. Electronic transmission of any signed original document, and retransmission of any signed electronic transmission shall be the same as delivery of an original document. 13. Governing Law. This Agreement, and the right of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Washington, and the parties agree that in any such action, jurisdiction and venue shall lie exclusively in Kitsap County, Washington. Page 299 of 351 14. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 15. lnterpretation. Each party participated in this Agreement and has had this Agreement reviewed by legal counsel. Therefore, any language herein shall not be construed against either party on the basis of which party drafted the particular language. 16. True and Full Value. Port Orchard and the District have each independently determined as to itself that: (i) it has the authority to enter into this Agreement; and (ii) the promises and covenants received from the other party represent "true and full value" received by it pursuant to RCW 43.09.210. 17. Survivability. All obligations contained herein shall survive termination until fully performed. 18. Entire Aqreement. This Agreement, including all predicate paragraphs and exhibits which are incorporated into this Agreement, contains all of the understandings between the parties. Each party represents that no promises, representations, or commitments have been made by the other as a basis forthis Agreement, which have not been reduced to writing herein. No oral promises or representations shall be binding upon any party whether made in the past or to be made in the future, unless such promises or representations are reduced to writing in the form of a written modification of this Agreement executed by both parties. lN WITNESS WHEREOF, Port Orchard and the District have executed this Agreement as of the date last written below. CITY OF PORT ORCHARD KITSAP PUBLIC FACILITIES DISTRICT Daron Jaqodzinske By: Robert Puta suu Its: M Date:"-) By: Daron Jagodzinske Its: Chair Date: 8127121 ATTEST UallerSDao,ht/rlv By Walter 9. Draper lV APPROVED AS TO FORM Brian E. Lawler il opR sEar $\fJ { 6 Brian E. Lawler, District Legal Counsel Page 300 of 351 7 ATTACHMENT "A" PROJECT SUMMARY/DESCRIPTION The City of Port Orchard proposes to construct an approximately 24,000 square foot South Kitsap Community Events Center (SKCEC) building including adjacent site improvements. The SKCEC will provide a central gathering place and multi-purpose facility in downtown Port Orchard that will support a multitude of functions for local and regional use. The facility will house our Regional Library branch and support large events such as galas, community festivals, conferences, concerts, service group meetings and more. The project will also support the redevelopment of the shoreline area with pedestrian and water access. The facility will include a catering kitchen and other amenities to support events requiring food service. The project will serve as a centerpiece of a much larger redevelopment project that includes parking, office, commercial, retail, and residential development. Page 301 of 351 8 ATTACHMENT "B" AGREEMENT TASKS - COMMUNITY EVENT CENTER (CEC) CITY OF PORT ORCHARD-KITSAP PUBLIC FACILITIES DISTRICT (WITH ESTIMATED BUDGETS AND TIMING) The following tasks shall be undertaken by, and will be the responsibility of, the City of Port Orchard, unless otherwise noted. Task 1. Consultant Selection and Contract. $0 (8 months (from December 2019)) Task 1.1. City's Consultant Selection - RCW 39.80 Architectural and Engineering Services - Request for Qualifications. Deliverable 1.1. Professional services contract. The consultant selection will be made for all project phases. The contract will be phased as each subsequent scope of work is developed based on the results of previous tasks. The contract(s) will be approved in phases. The District reserves the right to review and approve the City's selection of consultants, such approval not to be unreasonably withheld. Task 2. Project Management, Planning, Outreach, Design, and Cost Estimates. $400,000 (16 Months) Task 2.1. Prepare draft management plan. Deliverable 2.1. Draft Management Plan. Task 2.2. Draft Goals and Objectives. Deliverable 2.2. Establish written project goals and objectives for the SKCEC including user identification. Task 2.3. Initiate public outreach, prepare draft concept plan, and draft space programming. Deliverable 2.3. Draft Concept Plan and Space Programming Report. Task 2.4. Space Programing and Needs Assessment. Deliverable 2.4. Preliminary Space Programming and Needs Report. Task 2.5. Analyze sites and select preferred location. Deliverable 2.5. Evaluate 3 sites for SKCEC construction consideration and prepare design schemes for each site. Prepare report with alternatives for City Council decision on site selection. Task 2.6. Prepare Market Analysis, Financial Viability, and Risk Assessment for preferred site. Deliverable 2.6. Feasibility Report. Task 2.7. Perform additional public outreach for preferred alternative. Deliverable 2.7. Summary of public input. Page 302 of 351 9 Task 2.8. Finalize Space Programming and Needs Assessment. Deliverable 2.8. Provide preliminary SKCEC monetary operational feasibility report and final space programing report. Task 2.9. Preferred Alternative Site Analysis. Deliverable 2.9. Prepare technical report(s) to inform architectural and site design. This may include (depending on site selection) a geotechnical report, phase 2 environmental assessment, biological evaluation, topographic survey, archeological and cultural resources report, and shorelines mitigation and engineering report. Task 2.10. Property Ownership/Master Plan. Deliverable 2.10. Provide information to City consultant concerning downtown master plan. Assist the City to determine SKCEC property and building ownership. Task 2.11. Schematic Design. Deliverable 2.11. Provide preliminary schematic design to 25%. Prepare project cost estimates and scope of work for subsequent task(s). Task 2.12. City Council Action. City to review all deliverables and decide whether to accept additional $600,000 (estimated) for Task 4. Task 3. Property Acquisition. $1,000,000 Task 3.1. Acquire property from Kitsap Bank for the Project for $2.5 M with funding of $1.2 M from the Washington State Department of Commerce; $1.0 M from the District; and $300,000 from the City. Deliverables for release of funding from District. - Signed purchase and sale agreement with Kitsap Bank for a not to exceed purchase price of $2.5 M; - Assignment of DNR lease from Kitsap Bank, including any assignment approval from DNR. - Satisfaction of all conditions for $1.2 M Department of Commerce Grant, as set forth in June 21, 2021. Email from Beth Robinson to Nick Bond, City of Port Orchard, a copy of which is attached hereto as Exhibit 1 to this Attachment B. - Availability of at least $300,000 in City funds. - Establishment of closing escrow. - NOTE; The District shall deposit funds into closing escrow with instructions that if for any reason, the purchase of the Kitsap Bank property does not close, the District funds are to be returned to the District. Task 4. Prepare 60% Design Development, Cost Estimates, and Shoreline Permit Submittal. $600,000 (estimated) (9-12 Months) Task 4.1. Prepare 60% Design Development (DD) plans and Shoreline Development Phasing Plan (SDPP). Deliverable 3.1. 60% Design Development (DD) Plans for site improvements and building, Page 303 of 351 10 finalize reports from Task 2.2. Develop SDPP [Phase 1 CEC building and landscape/hardscape, Phase 2 shoreline restoration, Phase 3 overwater structure(s)]. Finalize all technical reports. Prepare Environmental Checklist. Prepare Traffic Impact Analysis/Parking Analysis. Prepare complete application for Shoreline Substantial Development Permit (and Shoreline Variance if required). Task 4.2. Cost Estimates. Deliverable 3.2. Consultant to provide cost estimates for completion of plans, specifications and bid documents for three phases of project and for construction of each phase of project. Task43.3. Operations and Maintenance Costs and Responsibilities. Deliverable 3.3. Determine estimated facility operating costs and tenant responsibilities. Work with partners to identify operational cost responsibilities. Task 4 City Council Action: City to review plans and funding requirements with any project partners and decide whether to accept additional $1,500,000 (estimated) for Tasks 4 and 5. Task 5. Shoreline Permits, 100% Ad Ready Construction Documents (PS&E) and Complete Applications for Development. $500,000 (estimated) (6-12 months) Task 5.1. Prepare Shoreline Substantial Development Permit (SSDP) application, submit, and provide support. Deliverable 5.1. Attend meetings and provide support for (SSDP) application. Task 5.2. Prepare 100% ad ready construction documents (PS&E) for each phase of the approved shoreline phasing plan (CEC, over water structures (such as a pier), Shoreline Restoration). Deliverable 5.2. 100% ad ready construction documents (PS&E). Task 5.3. Prepare complete applications for building permits, land disturbing activity permits (LDAP), and stormwater drainage permits (SDP). Prepare and file JARPA application. Deliverable 5.3. Complete application submittal packages. Task 5.4. Prepare plans for any offsite Improvements (if required under SEPA, SSDP, or as conditions of other permit approvals). Deliverable 5.4. Provide permit application submittal packets for offsite improvements. Task 5 City Council Action: City to review plans and funding requirements with project partners and decide whether to accept additional funds for Task 7. The City and its partners shall raise the remaining funds or secure commitments for the full funding of Task 7 prior to accessing additional KPFD funds. Task 6. Market Analysis, Financial Viability, and Risk Assessment in accordance with KPFD guidelines (KPFD to select). Deliverable 6. KPFD's portion of the feasibility study report. Page 304 of 351 11 Task 7. Secure Funding for Construction and Term Financing - As an alternative to the KPFD issuing bonds to cover the remaining $9.SM commitment. Task 7.1. KPFD commits percentage of sales tax rebate revenue sufficient to fund required debt service coverage based on issuer's credit rating. Deliverable 7.1. KPFD commitment of sales tax rebate revenue to satisfy bonding requirements. Task 7.2. Identify debt issuing entity. Deliverable 7.2. City, County, or Port of Bremerton identified as debt issuer. Task 7.3. Quantify debt service needs and costs based on borrowing entity and structure. Deliverable 7.3. Construction draw schedule, term debt service schedule, interest costs and other financing costs. Task 7.4. Define borrowing structure. Deliverable 7.4. Define timing and borrowing amounts needed to fund construction, needed amortization of term financing and any pledges to enhance credit of debt issuance to reduce interest costs. (Note: A binding commitment of sales tax rebate revenue will be necessary to quantify the amount of debt that can be issued. This amount should be set based on estimated required debt service coverage plus some allowance for changes in interest rates from current rates. Should the borrower require less than the committed amount, the commitment amount shall then be reduced to match the final required debt service coverage.) Task 7.5. Borrowing entity secures financing at lowest true interest cost (TIC) available in the market. Deliverable 7.5. Borrowing entity issues debt or obtains binding commitment for debt placement. Comment: Borrower should evaluate either public debt issuance or commitment from private purchaser. Task 8. CEC (excludes shoreline restoration and overwater structures) Project Management, Bid Support/Bid Award, Construction Administration/Construction Management, A&E Support, Construction. $16,000,000 to $20,000,000 ($9,500,000 of Task 8 cost from KPFD) Task 8.1. Project management Deliverable 8.1. Overall project management and oversight. Task 8.2. Bid support/Bid award Deliverable 8.2. A&E of record provides bid support (requests for information responses, construction document amendments, bid tabulations, etc.) Task 8.3. Construction administration/Construction management Deliverable 8.3. Daily inspection reports, documentation as required, scheduling, certified payrolls, progress billing approval, etc.) Task 8.4. A&E support Page 305 of 351 12 Deliverable 8.4. A&E of record to provide technical assistance and direction during construction. Task 8.5. CEC construction phase. Deliverable 8.5. Construction contract. Task 8.6. Miscellaneous. Deliverables 8.6. Required connection fees, impact fees and permit fees paid. Construction staking, surveying, materials testing, special inspections provided. Task 9. City to Complete Shoreline Restoration and Overwater Structures (No further KPFD involvement) Page 306 of 351 13 ATTACHMENT “B” EXHIBIT 1 June 21, 2021 Nick Bond City of Port Orchard 210 Prospect Street Port Orchard, WA 98366 Dear Nick: Congratulations! Governor Inslee recently signed the 2021-23 State Capital Budget, which includes an appropriation of $1,236,000.00 for the South Kitsap Community Events Center (Port Orchard) Project. The Department of Commerce, which will administer the project, will retain two percent (up to a maximum of $50,000) to cover our administrative costs. Accordingly, your net grant award will be $1,211,280.00. Prior to receiving funds, your organization will need to fulfill the following requirements: • Provide documentation of your organization’s financial ability to complete the project. All funds from sources other than the state must be expended, raised, or secured by documented pledges or loans. • For nonprofit grantees, any property relevant to the project must be owned or secured by a long- term lease that remains in effect for a minimum of ten years following the final payment date. A lien on owned property is also required when receiving grants over $500,000. • Prevailing wages must be paid for all construction labor costs incurred as of May 18, 2021. • Review by the Washington State Department of Archaeology and Historic Preservation and any affected Tribes (Governor’s Executive Order 21-02). • Your project may also need to comply with the state’s green buildings standards (RCW 39.35D). Please fill out the linked Contract Readiness Survey and submit at your earliest convenience. Also enclosed is a comprehensive set of contracting guidelines to assist you with the process. If you have any questions or need additional information, please contact your Project Manager, Beth Robinson, at (360) 549-6260 or Beth.Robinson@commerce.wa.gov. Sincerely, Beth Robinson Program Manager Department of Commerce Local Government Division Capital Programs Unit PO Box 42525 Olympia WA 98504-2525 Cell Phone: 360-549-6260 Hours: Monday-Thursday 6:00-4:30 Page 307 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: Staff received a special event application for a Fathoms O’ Fun Pirates Rendezvous Craft & Vendor Show scheduled for Sunday, May 29, 2022 and Monday, May 30, 2022. The application states the following: EVENT: Fathoms O’ Fun Pirates Rendezvous TYPE: Vendor Fair DATE: Sunday, May 29 through Monday, May 30, 2022 TIME: Setup starts on 5/29 at 6:00 a.m., open to the public between 10:00 a.m. until 4:00 p.m. and 5/30 10:00 a.m. to 4:00 p.m.; cleanup completed by 6:00 p.m. LOCATION: Downtown Port Orchard CLOSURE(S): City owned Parking Lot No. 4 (behind Peninsula Feed). The required notice, pursuant to POMC 5.96.050(3), allowing citizens to provide written comments regarding how allowing the special event will impact their property, business, or quality of life has been published and to-date, the City has received no concerns regarding this event taking place. Staff and outside agencies have reviewed the application and are working towards ensuring safety measures are in place. Pursuant to Port Orchard Municipal Code 5.94.080(1)—recently amended by Council--staff shall bring forward the special event application to the City council for approval when the event requires using all or a portion of Lots 3 and 4, commonly known as waterfront parking, for two or more consecutive days. Relationship to Comprehensive Plan: N/A Recommendation: Staff supports the application, upon the event meets the required and necessary public safety provisions. Motion for consideration: I move to approve the 2-day use of Parking lot No. 4 for the Fathoms O’Fun Pirates Rendezvous event scheduled for Sunday, May 29 to Monday May 30, 2022, as presented. Fiscal Impact: None. Page 308 of 351 Business Item 7J Page 2 of 2 Alternatives: Deny the 2-day use of parking lot no. 4 or provide direction to staff. Attachments: Application and vendor layout map. Page 309 of 351 Sprclm Everur Penrur APPI rcRnoru (Ponr OncHano Mutrttqpar Cooe 5.94 eruo 5.961 sTANDARD PRocEsslNG rre: $50.fi) ADDTTTONAL EXPEDITED ree (rSSrnnr'r90 BUTMORETHAN 30 DAYSBETOnT rvenr): $50.00 Event Overview Admission Fees: Event Details Name of event: Fathoms O' Fun Festival's Pirates Rendezvous Location of event: Downtown Port Orchard Waterfront - Lotll4 Type of Event:l festival Jatt/nur{-Jaradely/}vendor Fairl lelock Partv Even t or Orga nization Website: www.fathomsofun.org Description of event: Vendor Fair and activities for kids, and Dinghy Derby Does your event require a paid fee for participants and/or spectators?'/ o Does your event require minimum or suggested donation for participants and/or spectators?lt"t ,/\o Admission/participation fee/ suggest donations amount(s): Vendors pay different fees according to craft, food, commercial No fee spectators Set Up Starts:Take Down Complete: Start Day: Sun Start Date: 5129 Start Time: 6am End Mon Day:End Date: 5/30 End Time: 6pm Event Dates/Times: lndicate Datesfiimes OPEN to attendees Expected Daily Attendance: Participants Spectators volunteers/staff Day; Sun Date: 5129 Start Time 1Oam End Time: 4pm 45+499lday 7+ Day: Mon Date: 5/30 Start Time 1Oam End Time: 4pm 45+499lday 7+ Day:Date:Start Time End Time: Additional details: (attach additional pages as needed for additional days or details) The Dinghy Derby will take place at 1 PM at the POB Breakwater area. Participants will unload their dinghys at the City's Public Marina access across from City Hall. City of Port Orchard I Special Event Application Revised 12/31/2021 Page 3 of 10 Page 310 of 351 Name of Organization: Fathoms O' Fun Festival, lnc. Do you have an active City Business License?,//es trNo What is your UBI number? 91-1543208 Point of Contact Name: Street Add ress:Mailing Address: PO Box 312 (if differefit from street addre(s) City:State:Zip:City: porl Orchard State:zip., Phone:Alternate Phone:Email : kinqglsations@wavecable.com Organization lnformation* *Please note the orgonizotion information provided may be shared lor inquires mode on event details Alcohol The sale, service and consumption of alcoholic beverages are subject to Washington State Liquor & Cannabis Board (WSLCB) regulations, licensing, and permit requirements. WSLCB Special Occasion and other Licenses and related fees for alcohol sales/service at events are not included in the City's Special Event Permit. Visit the WSLCB website, h!!p5;L@9.91 for additional information and to apply for the appropriate license / Permit. Will alcohol be sold or consumed at your event? [Yes{' E*" *lf yes, you must contact the Washington Stdte Liquor and Cannabis Board for o special liquor license. Food you will need to reach out to the Kitsop Public Heakh District ds they moy require a temporary food estoblishment permit. Visit their website at https://kitsoppublicheolth.ora/FoodSafetv/food vendors.php or call (360) 728-2235 Ior informqtion. Will your event have any food service and/orsatesfflfes Will your event have professional catering? l-lY"t Will your event have food trucks? Zlt"t Will your event have food booths or food vendors? Zlt", Restrooms Eu" m" fh" lf yes, how many: lf yes, how many: lf yes, how many: lf yes, how many: 4 3 5 Prove the number of restrooms that will be available to the public for your event Below is an example of the estimated amounts needed per the amount of users recommended in the FEMA Speciol Events Contingency Plonning: lob Aids Monuol. No. of users (50% male and 50% female)Minimum number of portable toilets Up to 240 3 250 to 499 4 500 to 900 6 1,000 to 1,999 t2 2,000 to 2,999 25 3,000 to 3,999 38 4,000 to 4,999 50 City of Port Orchard I Special Event Application Revised 72/37/2027 Page 4 of 10Page 311 of 351 Collection Stations: How many bins are you providing as collection containers at your event? Recycle 2 cans 6 & dumpster(Jaroage_ { Will you manage your own recycling and garbage collection or will it be managed by a vendor? List vendor/company, if applicable: - Self-Ha Detail your plan for waste management within the event area and surrounding neighborhood: Dumpster will be available for emptying garbage cans...requested to be placed in last two parking stalls in parking row closest to Library. Garbage and Recycling Amplified Sound Does your event have any amplified sounor [1v", f]to Tents Does your event include a tent or membrane structure? flr", Noise levels generoted shall not be in excess of allowable levels, consistent with POMC 9,24,050, For more lnformation please contact the Port Orchard Police Deportment (360) 876-7700. ot Applicable lf yes, what is the tent sizel 10x10 or 10x20 for vendors Does the tent have sides applicable May be required to obtaln o permit per POMC 20.204,070 pledse contact Community Development (360) 874-5533. City of Port Orchard I Special Event Application Revised 12/31/2021 Page 5 of 10 lndicate dates/time of any amplified sound below: Day: Sunday Date 5t29 Start Time: 1pm End Time: 2:30pm Day: Monday Date: 5/30 Start Time 1pm End Time: 2:30pm Day:Date:Start Time End Time: Describe what sound will be amplified, and at what hours (e.g., 7:00am announcements, 8:00am background music, etc.): lndividual singer, playing guitar Describe what equipment will be used for amplified sound, and at what locations (show in maps): He brings his own system. Describe schematics and direction of amplified sound (show in maps, attach supporting documents as needed Plays under the Gazebo and faces to the vendor area Page 312 of 351 Use of City Right-of-Way and Parking lmpacts Use of State Highway: Will this event require closure of a State Highway Street (Bay Street/SR166)? It", mtr" For State Highwoy Closures (Boy Street), the sponsoring organizotlon must submit the applicatlon to the cW dt least 720 calendor days before the event date. Upon city approval ofthe event, the sponsoring organizotion shall seek permisslon from the Washington Stote Department of Transportotion (WSDOT) by completing an online applicotion. Once permission is gronted from WSDOT, o copy of the Letter of Acknowledgment or an Agreement will need to be provided to the city. WSDOT's online dpplicdtion is locotedot' https://www.wsdot.wa.sov/contact/events/special-events Use of Public Property (Right-of-way): fort Orchard Municipal Code 5.94.020(7) states "Right-of-way (ROW)" means any road, public parking lot, city street, highway, boulevard or place in the city open as a matter of rightto public travel and shall include arterials, neighborhood streets, alleys, bicycle paths and pedestrian ways; including streets or portions thereof which are designated as portions of the state highway system." Will this event require closure of any of the below public property? Mt",No lf yes, indicate what type of public property is requested to be closed and the location (select all that apply): City Parks: ick Village Park l-ltn. rurner Park ll Park I Park Park Parking [ots: Zee Park Powers Park nro,. and 1: between Orchard Frederick streets on the north side of Bay Street 2: between Street and Sidney Avenue, north of Bay St. ntoa 3: five rows ofI-I parKrng wesr oT Harrison Ave and east of and parallel to the library lZro,4: all parking east l-lto, 5: all parking on City -Hrll property in front of the Police department nto.5: abuttins thel-t,tanoscapeq area ar rne SW corner of the Bay St and Dekalb St intersection 7: all parking spaced on the library property which is limited to library staff only 8: employee parking lot of City Hall adjacent to Prospect Alley which is between Kitsap Street and Prospect Street. of Lot 3 and Harrison Ave and west of the Marina Park lf requesting street closure, fiil out the closure information below and provide a traffic control plon of the area impacted. Traffic Control Plan: Provide the name of the traffic control company you are using to direct traffic, manage road closures, and providing certified flaggers: City of Port Orchard I Special Event Application Revised 12/31/2021 Page 6 of 10Page 313 of 351 Street Closure Details: Parking lmpacts Have parking impacts been coordinated with neighbors (residential/business)?flt",No Applicable lf yes, how will parking be provided for participants and visitors (including handicapped parking)? Public Parking will be available in City waterfront lots and on downtown area side streets. There are designated handicap parking spots amongst the City parking lots. Street Name:Between (cross street): And (cross street) Start Date:Start Time:End Date:End Time: Additional details: (attach additional pages as needed for more streets and/or more details about use.) Event Signage Are you ptanning to put up temporary risnrfiv., E*o Sand \,^)'Lh Q'Oc"tZ\> POMC 20,132.290 "Temporary sign" (which may include special event sign) means any sign that is used temporarily and is not permanently mounted, painted or otherwise affixed, excluding portable signs as defined by this chapter, including any poster, banner, placard, stake sign or sign not placed in the ground with concrete or other means to provide permanent support, stability and rot prevention. Temporary signs may only be made of nondurable materials including, but not limited to, paper, corrugated board, flexible, bendable or foldable plastics, foamcore board, vinyl canvas or vinyl mesh products of less than 2o-ounce fabric, vinyl canvas and vinyl mesh products without polymeric plasticizers and signs painted or drawn with water soluble paints or chalks. Signs made of any other materials shall be considered permanent and are subject to the permanent sign regulations of this chapter. Please contact the Community Development Department at (360) 874-5533 if you have questions or if you need to apply for a sign permit. Vendors Does your event indicate vendors lf so, will they be selling merchandise and/ or food?[1Y", f[*o lf so, how many anticipated exhibitors/vendors will be at yorr. "u"nt? 45* POMC 5,96, if your event has two or more vendors engoged in public property vending, you are required to have d Mdstet Multi-Vendor Event License (MMVEL). The MMVELfee ls $75.00 per day or $200 per month. POMC 5.96,020(3)(a) states the City of Port Orchard I Special Event Application Revised 72/37/2027 Page 7 of 10 Page 314 of 351 sponsor ol the moster event shdll provide d list ol partlclpoting vendors, their business nomes, their oddresses ond their Stote Tox Revenue ldentlflcation Numbers to the city clerk within three worklng days after the fhst day oI the operation. o No public vending is allowed within twenty-five (25) feet of any municipal building, monument, or fountain, OR within ten (10) feet of intersection sidewalks. o Vending devices must be removed from vending sites daily between the hours of 10:00 p.m. and 6:00 a.m. r Vending devices and vending sites must always be clean and orderly. The vendor must furnish a suitable refuse container and is responsible for the daily disposal of refuse deposited therein, Refuse containers must be removed each day along with vending devices, o Vendors may engage in public property vending only in the location specified in the public property license. The location shall be deemed the vending site. o Utilitv service connections are not permitted, except electrical when provided with written permission from the adjacent property owner. Electrical lines are not allowed overhead or lying in the pedestrian portion of the sidewalk. o No mechanical audio or noisemaking devices are allowed, and no hawking is allowed. o A vinyl or canvas umbrella may be added to the vending device, but its open diameter may not exceed eight and one- half feet. Any part of the umbrella must have a minimum of seven feet of vertical clearance to the area on which the vending device stands. o lndividual vendor advertising signs may be placed only upon the vending device. Temporary master event advertising signs may be placed as approved by the city engineer; and o Noconductshall bepermittedwhichviolatesanyothersectionofthePortOrchardMunicipal Code. Site Map A site map is required to be submitted which includes the following Vendors: Beer Garden: Signage: Tents: Public entrances and exits: Road closures and detours: Traffic patterns: Fire Lanes: Ga rbage/Recycling: Barricades: First Aid: Parking: Restrooms: flt", f]'"' ffi"' Zl'"' flv"' Iv"' Z]'"' Ev"' Zl'"' Zl'"' flv"' f]v"' Mv"' l-lrvo, @"' Not applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable No Z*" X*" [*" Ito m" [},n" trto It" I*" It' I*"f]" M"* Z** nnot lf event is a run/walk, list start and stop locations and water/rest stations: flruot applicable City of Port Orchard I Special Event Application Revised 12/31/2021 Page 8 of L0 Page 315 of 351 lnsurance The sponsoring organization must provide an insurance certificate, with endorsements, at least 30 days prior to the event with the City of Port Orchard shown as Additional Named lnsured with minimum coverage to be as follows: $1,000,000 tiabitity; S 1,000,000 Bodity I nju ry Special Event lnsurance for events held at city-owned facilities can be purchased at eventinsure.hubinternational.com/. Releose I certify that the event for which this permit is to be used will not be in violation of any City of Port Orchard ordinance. By applying for this special event permit, the organization or entity obtaining such permit agrees to defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from all claims, injuries, damages, losses, or suits, including attorney fees and costs, arising out of or in conjunction with the activities or operations performed by the applicant or on the applicant's behalf resulting from the issuance of this permit except for injuries and damages caused by the sole negligence of the City. The informotion on this Iorm is considered o public record and is subject to public dlsclosure lows in Chopter 42.56 RCW. l, as the President or Chair of my organization, agree to the terms and conditions listed above. Digitally signed by Sharron E King D ate: 2022.02.22 1 0:37 :30 -08'00' Signature of President/Chair of Organization Print Name Date FOR CITY CLERK'S OFFICE USE ONLY Comments received by: Date final review sent: Date S50 Permit Fee Received Date S50 Expedited Fee Received (if applicable): I police I public Works E Finance n Community Development fl ritsap Transit n Oerk's office E Health District Date lnsurance Certificate(s) Received: Does event require a Master Multi-Vendor License: I Yes n ruo lf Yes: [1 Sls/day fee n $20O/monthly fee Number of days:Amount:Date fee paid Sharron E King City of Port Orchard I Special Event Application Revised 12/31/2021 Page 9 of 10 Page 316 of 351 Fathoms Pirates Rendezvous Vendor Fair, May 29-30 Blue-Fathoms O'Fun Vendor Areas Red solid lines -Fire lane Yellow Circle - Garbage Green - Dumpster Aqua - Sandwich Boards for entrance blockage Orange Dot - Recycle Cans r di rr +-t} (, Page 317 of 351 RESTROOM AVAILABILITY FOR PIRATES RENDEZVOUS MAY 29-30/2022 (Sun & Monday) Port of Bremerton Restrooms - 4 (3 inside building [men and women both] and one sani-can outside) Hemley's Handicap Handy Kan - L Vendor Fair in City Parking Lot #4 Page 318 of 351 City of Port Orchard 216 Prospect Street, Port Orchard, WA 98366 (360) 876-4407 • FAX (360) 895-9029 Agenda Staff Report Summary: City staff received two Special Event applications for Fathoms O’Fun Festival 53rd Annual Grand Parade and 2-Day Summer Festival Craft & Vendor Show scheduled for Saturday, June 25, 2022 and Sunday, June 26, 2022. The applications state the following: EVENT: 53rd Annual Grand Parade and 2-Day Summer Festival Craft & Vendor Show TYPE: Parade and Vendor Fair DATE: Saturday, June 25, 2022 and Sunday June 26, 2022 TIME: Parade; 6/25 from 6pm until 7:45 p.m. –Vendor Fair; Setup starts on 6/25 at 6:00 a.m., open to the public between 9:00 a.m. until 9:00 p.m. and 6/26 9:00 a.m. to 4:00 p.m. cleanup completed by 6:00 p.m. LOCATION: Downtown Port Orchard CLOSURES: Port Orchard Boulevard (1:45pm to 7:30pm); Bay Street/SR166, from Port Orchard Boulevard through Bethel Road (5:30PM to 7:45pm), Port Orchard Public Boat Launch (5:30pm to 7:45pm) on Water Street and Parking Lot area behind Peninsula Feed (Parking Lot No. 4). The required notice, pursuant to POMC 5.96.050(3), allowing citizens to provide written comments regarding how allowing the special event will impact their property, business, or quality of life has been published and to-date, the City has received no concerns regarding this event taking place. Staff and outside agencies have reviewed the application and are working towards ensuring safety measures are in place. Pursuant to Port Orchard Municipal Code 5.94.050(4)—recently amended by Council--staff shall bring forward the special event application to the City council for approval when the event requires a street or highway closure. In addition, Port Orchard Municipal Code 5.94.080(1) staff shall bring forward the special event application to the City council when requesting use of all or a portion of City parking Lots 3 and 4, commonly known as waterfront parking, for two or more consecutive days. Relationship to Comprehensive Plan: N/A Page 319 of 351 Business Item 7K Page 2 of 2 Recommendation: Staff supports the application, upon the event meets the required necessary public safety and traffic control provisions. Motion for consideration: I move to approve the road closures for the Fathoms O’ Fun Festival 53rd Annual Grand Parade event scheduled for Saturday, June 25, 2022, as presented as well as approving the use of Lot 4 for a 2-day vendor show to be held June 25 and June 26, 2022. Fiscal Impact: None. Alternatives: Deny the road closures and/or use of parking lot no. 4, and/or provide direction to staff. Attachments: Applications (Parade and 2-day Vendor Show), including maps and traffic flow maps. Page 320 of 351 Specrm Evrrur PeRrur AppllcRrpnt (Ponr Oncneno Mutrttcrpel Cooe 5.94 aruo 5.96) sTANDARD PRocEssrNG rrr: $5o.oo ADDrnoNAt ExpEDrrED rrr (uss nreru g0 Bur MoRE rlAN 30 DAys BErone evrnr): S50.00 Event Overview Admission Fees: Event Details Name of event: Fathoms O' Fun Festival 53rd Annual Grand Parade &2-daV Summer Festival Location of event:PO Blvd-Bav Street Type of Event:flestival fvatk/Rur ,/'aradel J'/endor Fai lBlock PartV pttre Event or Orga nization Website: www.fathomsofun.org Description of event: Annual 53rd Grand Parade with staging area on PO Blvd. Parade begins at 6 PM on Bay/PO Blvd and dispersal at Bethel lntersection. Vendor Fair located on waterfront Does your event require a paid fee for participants and/or spectators?l'*l/\o Does your event require minimum or suggested donation for participants and/or spectators?fes /lt" Ad mission/participation fee/ suggest donations amou nt(s): Fee for politicians running for office ($50) and political parties - fee of $150 Set Up Starts:Take Down Complete: Start Day: Saturday Start Date 6125122 Start Time: 6 PM parade start End Day: 6125122 End Date: 6t25122 End Time: Approx 7:45 Event Dates/Times: lndicate Datesfl-imes OPEN to attendees Expected Daily Attendance: Participants Spectators volunteers/staff Day Sat Date 6125 Start Time: 6:00 pm End Time: 7:45 pm appr 1,000 2(no 30+ Day:Date Start Time:End Time: Day:Date Start Time:End Time: Additional details: (attach additional pages as needed for additional days or details) PO Blvd closes at 2 PM for parade staging; Bay Street closes at 5:30 pm prior to parade start at 6 PM City of Port Orchard I Special Event Application Revised 12/31/2021 Page 3 of 10Page 321 of 351 Name of Organization: Fathoms O' Fun Festival, lnc. Do you have an active City Business License?{/es flNo What is your UBI number? 91-1543208 Point of Contact Name: Street Address;Mailing Address: (if different from street address) PO Box 312 City:State:zip citY:po6 orchard State:zip: Phone: q/n--87/ -igE Alternate Phone:Emai l: kinqslsations@wavecable.com Organization lnformation* *Pledse note the orgdnization information provided moy be shared for inquires made on event detdils Alcohol The sale, service and consumption of alcoholic beverages are subject to Washington State Liquor & Cannabis Board (WSLCB) regulations, licensing, and permit requirements. WSLCB Special Occasion and other Licenses and related fees for alcohol sales/service at events are not included in the City's Special Event Permit. Visit the WSLCB website, bllpglbb.wgggly' for additional information and to apply for the appropriate license / Permit. will alcohol be sold or consumed at your event?flYes* M*o *lf yes, you must contdct the Washington State Liquor and Connabis Board for o speciol liquor license. Food You will need to reoch out to the Kitsqp Public Heolth District os they mdy reguire o temporory food estoblishment permit. Visit their website dt https://kihappublicheolth.oralFoodSdfeir/food vendors.php or call (360) 72&2235 for informotion. En" tf yes, how many: m" lf yes, how many: m" lf yes, how many: mn" tf yes, how many: 15 Prove the number of restrooms that will be available to the public for your event Below is an example of the estimated amounts needed per the amount of users recommended in the FEMA Special Events Contingency Plonning: Job Aids Manuol. No. of users (50% male and 50% female)Minimum number of portable toilets Up to 240 3 250 to 499 4 500 to 900 6 1,000 to 1,999 12 2,000 to 2,999 25 3,000 to 3,999 38 4,000 to 4,999 50 Will your event have any food service and/or sales? Will your event have professional catering? Will your event have food trucks? Will your event have food booths or food vendors? Restrooms f}"' f]'", City of Port Orchard I Special Event Application Revised 12/31/2021 Page 4 of 10Page 322 of 351 Collection Stations: How many bins are you providing as collection containers at your event? Recycle using city's 15-20Garbage_ { Will you manage your own recycling and garbage collection or will it be managed by a vendor? Self-Haul o List vendor/company, if applicable Detail your plan for waste management within the event area and surrounding neighborhood: Fathoms volunteers will pick up Fathoms garbage cans at the conclusion of the parade from PO Blvd and Bay Street. Garbage and Recycling Amplified Sound Does your event have any amplified sounor [lv"r |_|*o Tents Does your event include a tent or membrane structure? ,AAM Nolse levels generated sholl not be in excess of allowoble levels, conslstent with POMC 9.24.050. For more lnlormatlon pleose contoctthe Port Orchard Police Department (360) 876-7700, Applicable lf yes, what is the tent size:Does the tent have sides applicable May be required to obtain d permit per POMC 20.204.070 please contoct Community Development (360) 874-5533. l-lr",M*t* City of Port Orchard I Special Event Application Revised 72/31/2021 Page 5 of 10 lndicate dates/time of any amplified sound below: Day Sat Date: 6t25t22 Start Time: Approx 5:30 PM End Time: Approx 7:30pm Day Date:Start Time:End Time Day Date:Start Time:End Time: Describe what sound will be amplified, and at what hours {e.g., 7:00am announcements, 8:00am background music, etc.): Parade Announcers at Kitsap Bank, intersection at Sidney/Bay, and at review stand at PO Ford lot per time listed above; they will be starting to make announcements at approximately 5:30 PM when the Tenino Motorcycle Team comes on Bay Street at approx. 5:45 to perform prior to parade starting. Describe what equipment will be used for amplified sound, and at what locations (show in ma ps): BKAT TV equipment at Kitsap Bank, Portable PA system at Sidney, and POB Sound System at Review Stand Describe schematics and direction of amplified sound (show in maps, attach supporting documents as needed Allwill be facing Bay Street Page 323 of 351 Use of City Right-of-Wqy and Pdrking lmpocts Use of State Highway: Will this event require closure of a State Highway Street (Bay Street/SR166)? For Stote Highway Closures (Bay Street), the sponsorlng organizatlon must submit the applicatlon to the city at least 720 calendor days before the event dote. llpon city approval of the event, the sponsorlng orgonlzation shall seek permission from the Washington State Depdrtment of Transportation (WSDOT) by completing an online applicotion. Once permission is gronted from WSDOT, o copy otthe Letter of Acknowledgment or an Agreement will need to be provided to the city. WSDOT's online applicotion is locofed ot: https://www.wsdot,wa.gov/contact/events/special-events Use of Public Property (Right-of-way): eort Orchard Municipal Code 5.94.020(7) states "Right-of-way (ROW)" means any road, public parking lof city street, highway, boulevard or place in the city open as a matter of right to public travel and shall include arterials, neighborhood streets, alleys, bicycle paths and pedestrian ways; including streets or portions thereof which are designated as portions of the state highway system." W Zl'"' Will this event require closure of any of the below public property? lf yes, indicate what type of public property is requested to be closed and the location (select all that apply): City Parks: Etta Turner Park f,v"'No Zee Park I Powers Park Parking Lots: ck Village Park I Park 3: five rows of west of Harrison Ave and east of and parallel to the library 4: all parking east of Lot 3 and Harrison Ave and west of the Marina Park 5: all parking on City property in front of the Police department ntoa 6: abutting the|Jlandscaped area at the SW corner of the Bay St and Dekalb St intersection Park 7: all parking spaced on the library property which is limited to library staff only l--lro,8: employee parking lotU..rt of City Hall adjacent to Prospect Alley which is between Kitsap Street and Prospect Street. Park l-|'o, and E|T,1: between Orchard Frederick streets on the north side of Bay Street 2: between erick Street and Sidney Avenue, north of Bay St. Tlsiuewat Parade spectators ks: lZstreet(s;tl requesting street closure, lill out the closure information below ond provlde a trolfic control plan of the areo impdcted. Traffic Control Plan: Provide the name of the traffic control company you are using to direct traffic, manage road closures, and providing certified flaggers: lntegrity City of Port Orchard I Special Event Application Revised 1.2/31/2021 Page 6 of 10 Page 324 of 351 ArLl:il/Street Closure Details: Parking lmpacts Have parking impacts been coordinated with neighbors (residential/business)?l7l'",No Applicable lf yes, how will parking be provided for participants and visitors (including handicapped parking)? All side streets in the downtown conidor will be utilized by citizens parking on the side of the street, as well as City lots 1,2,3 that would be available to citizens for parking Start Time:End Date:End Time:Between (cross street) And (cross street): Start Date:Street Name: 145PM 6125122 7:30p appxPO Blvd Tremont 6t25t22 7:45p appx5:30PM 6125t22Hwy 166 PO Blvd Bethel 6t25122 Additional details: (attach additional pages as needed for more streets and/or more details about use.) See parade route map for streets that access Hwy 166 from PO Blvd to Bethel Event Signdge Are you planning to put up temporary rignrfflY", f|*o qOMC 20.132,290 "Temporary sign" (which may include special event sign) means any sign that is used temporarily and is not permanently mounted, painted or otherwise affixed, excluding portable signs as defined by this chapter, including any poster, banner, placard, stake sign or sign not placed in the ground with concrete or other means to provide permanent support, stability and rot preventlon. Temporary signs may only be made of nondurable materials lncluding, but not limlted to, paper, corrugated board, flexible, bendable or foldable plastics, foamcore board, vinyl canvas or vinyl mesh products of less than 20-ounce fabric, vinyl canvas and vinyl mesh products without polymeric plasticizers and signs painted or drawn with water soluble paints or chalks. Signs made of any other materials shall be considered permanent and are subject to the permanent sign regulations of this chapter. Please contact the Community Development Department at (350) 874-5533 if you have questions or if you need to apply for a sign permit. Vendors Does your event indicate vendors lf so, will they be selling merchandise and/ or food?[1Y", f]*o lf so, how many anticipated exhibitors/vendors will be at your event? 1 POMC 5.96, if your event hos two or more vendors engoged in public property vending, you dre required to have a Master Multi-Vendor Event License (MMVEL). The MMVELfee is 575.00 per doy or $200 per month. POMC 5.96.020(3)(a) states the City of Port Orchard I Special Event Application Revised 12/31/202X Page 7 of 10 Page 325 of 351 sponsor oI the msster event shail provtde a rist of portictpating vendors, their business *^L/k(, dodlk\c,, ,ro* Tdx Revenue tdentiflcdtion Numbers to the city clerk within three working days after the lirst dalol the operdtion. r No public vending is allowed within twentyJive (25) feet of any municipal building, monument, or fountain, OR within ten (10) feet of intersection sidewalks. o Vending devices must be removed from vending sites daily between the hours of 10:00 p.m. and 6:00 a.m. o Vending devices and vending sites must always be clean and orderly. The vendor must furnish a suitable refuse container and is responsible for the daily disposal of refuse deposited therein, Refuse containers must be removed each day along with vending devices. o Vendors may engage in public property vending only in the location specified in the public property license. The location shall be deemed the vending site. o Utility service connections are not permitted, except electrical when provided with written permission from the adjacent property owner. Electrical lines are not allowed overhead or lying in the pedestrian portion of the sidewalk. o No mechanical audio or noisemaking devices are allowed, and no hawking is allowed. r A vinyl or canvas umbrella may be added to the vending device, but its open diameter may not exceed eight and one- half feet. Any part of the umbrella must have a minimum of seven feet of vertical clearance to the area on which the vending device stands. o lndividual vendor advertising signs may be placed only upon the vending device. Temporary master event advertising signs may be placed as approved by the city engineer; and o Noconductshall bepermittedwhichviolatesanyothersectionofthePortOrchardMunicipal Code. Site Mdp A site map is required to be submitted which includes the following: Yes T No Not applicable Zlt" flu"tappricabre ot applicable applicable Vendors: Beer Garden: Signage: Tents: Public entrances and exits: Road closures and detours: Traffic patterns: Fire Lanes: Garbage/Recycling: Barricades: First Aid: Parking: Restrooms: [|v"' ffi"' Zl'"' Zl'"' ZF"' Ml'"' Zl'"' Zl'"' lZv"' lZv"' Yes o o o o Z- nruot ot applicable ot applicable D" fl*o fl'o n*" fto I*o D" applicable applicable applicable applicable applicable applicable applicable lf event is a run/walk, list start and stop locations and water/rest stations Mruotapplicable city of Port orchard I Special Event Application Revised 12/31/2021 Page 8 of 10 Page 326 of 351 lnsuronce The sponsoring organization must provide an insurance certificate, with endorsements, at least 30 days prior to the event with the City of Port Orchard shown as Additional Named lnsured with minimum coverage to be as follows: $1,000,000 Liability; $1,000,000 Bodily tnjury Special Event lnsurance for events held at city-owned facilities can be purchased at eventinsure.hubinternational.com/. Releose I certify that the event for which this permit is to be used will not be in violation of any City of Port Orchard ordinance. By applying for this special event permit, the organization or entity obtaining such permit agrees to defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from all claims, injuries, damages, losses, or suits, including attorney fees and costs, arising out of or in conjunction with the activities or operations performed by the applicant or on the applicant's behalf resulting from the issuance of this permit, except for injuries and damages caused by the sole negligence of the City. The information on this form is considered a public record and is subject to public disclosure laws in Chopter 42.56 RCW, l, as the President or Chair of my organization, agree to the terms and conditions listed above. Sharron E King Digitally signed by Sharron E King D ate: 2022.02.22 O9 :OO :39 -08'00' Signature of President/Chair of Organization Print Name Date F'ORCITY CLERKOS OFFICE USE ONLY Comments received by: Date final review sent: Date $50 Permit Fee Received Date 550 Expedited Fee Received (if applicable): f] Police n puUtic Works n Finance ! Community Development I ritsap Transit n Clerk's office I Health District Date lnsurance Certificate(s) Received Does event require a Master Multi-Vendor License: fl yes n ruo lf Yes: n $fS/Oay fee n S200/monthly fee Number of days Amount:Date fee paid City of Port Orchard I Special Event Application Revised 12/37/2021 Page 9 of 10 Page 327 of 351 Soecidl Event Permit Aoolication Checklist Please use this list to ensure you have included all supporting documentation with your special event application. l-l,t row event coincides with another organizations event in the same location, please provide written approval from the event organizer that indicates their approval of your event. lZn"ui"r."d Special Event Tool Kit flWritt"n approval from property owner if location is on non-City owned property (if applicable) (PaCe 2) Msnecial Event Fee (Check, Cash, Credit Card) (Page 3) Permits (if applicable) (Paee a) I Liquor License (if applicable) (Page a) ntact Department of Community Development for tent permit (if applicable) (Page 5) Zlff there are road closures, have you attached a traffic control plan (Page 6) ZlrOon event approval, use of State Highway Letter of Acknowledgment or an Agreement that is received from the Department of Transportation if State Highway is requested to be closed (Page 5) flVrtt"r. Multi-Vendor Event License fee (if applicable) (Page 7) Department of Community Development for sign permit (if applicable) (Page 7) MCompteted site map (Page 8) fZbpecial Event Application/Release is completed and signed by the President or Chair of organization (Page 9) [ltnrurrn.e Certificate, with endorsement, provided at least 30 days prior to event date (Page 9) Tips for q successful event * Contact the local media (Kitsap Sun, Port Orchard lndependent, etc.). * Post information on your social media site. t Contact the Port Orchard Chamber of Commerce. .i. Rttend a City Council meeting to speak during citizen comments letting council and public know of your event. city of Port Orchard I Special Event Application Revised 72/37/2021 Page 10 of 10 Page 328 of 351 Lr{ doJn"t 4. ATTACHMENT TO FATHOMS O' F'UN SPECIAL EVENT REQUEST F'OR 53rd ANNUAL GRAND PARARDE, June 25,2022 1. Port Orchard Boulevard MUST BE CLOSED to all traffic except parade traffic from L:45 pm until the last parade participants are off Port Orchard Boulevard (approximately 7:30 pm). The parade participants will begin to anive on Port Orchard Boulevard starting at 1:45 pm, utilizing the downhill lane. The barricades and cones will be needed at the top and bottom of Port Orchard Boulevard prior to 1:45 pm. The 10-12 festival floats from other communities will arrive first, as they must be assembled and ready for judging by 4 pm. The other participants will arrive between 2 pm and 5 pm. The parade will form in the downhill curb lane. The center lane will be kept open for down hill parade traffic onlv, the uphill lane for emergency vehicles and Parade Offrcials' route control vehicles. 2. Bay Street from Port Orchard Boulevard through it's intersection with Bethel Road should be cleared of parked cars and closed by 5:30 pm. The parade will start at 6 pm and will move east on Bay Street to Bethel Road, the dispersal point. Walking units will disperse on Beach Drive, equestrian units up the hill a little ways on Bethel Road (at vacant building on right side), and floats at the South Kitsap Mall. Fathoms O' Fun will provide Parade Marshals along Bay Street to keep the parade moving at a steady pace. 3. Public Safety, traffic and crowd control will be provided by a Traffic Control Company Portable Handy Kans provided by Hemley's will be placed as follows: 10 - Handy Kans and trash bags will be spaced at intervals on Port Orchard Boulevard for the use of the parade participants. 1 - Handy Kan placed at Kitsap Bank where BKAT TV will be located 2 - Handv Kans will be at the Bruce Titus Ford location close to review stand ff -llaniy Kan will be placed at West Bay Shopping Center 3 - Regular Handy Kans at the POB restroom Area 2 - Handicap Handy Kans at the POB restroom Area 3 - POB Women's Restroom area toilets 3 - POB Men's Restroom area toilets 1 - POB outside sani-can at the end of the restroom building Total of 26 - In addition, there is the City owned toilet near Kitsap Bank and the POB owned toilets at the Marina Parking across from City Hall Additionally, the last units in the Parade include Fathoms trucks who collect garbage and containers. The parade viewers help in this effort and aid in the collection effort to clear the streets and sidewalks. 5. Prior to parade day, the businesses on Bay Street will receive a schedule of events that will be held in the downtown area. 6. We plan to a hired shuttle van to move vehicle drivers back from the dispersal areas to their parade entries Port Orchard Boulevard. These vans will run from 3 pm to 5:30 pm. Spectators are expected to use Kitsap Transit regularly scheduled bus service from outlying areas to downtown Port Orchard. Kitsap Transit will not schedule special service. We anticipate Fathoms Special Event Application Page 1 Page 329 of 351 Pt,/am.,/ hiring two shuttle vans to haul spectators to the downtown area for the parade; however, we do not know how effective it will work at the end of the parade for people to catch the bus back to their parkingarca. 7. Parade participants are not permitted to distribute materials from moving vehicles on the parade route. Some litter will be left behind by the spectators, but this has not been a major problem in the past. Ten to fifteen trash containers will be provided by Fathoms throughout the parade route. Each equestrian unit will have their own clean up 'oPooper Scooper" crew. 8. Parade participants will be told they cannot park on Port Orchard Boulevard before, during or after the parade. The city Public Works Department posts Bay Street with "NO PARKING" signs. Any violators will be towed at owner's expense. 9. Local property owners will give approval for use of their property for assembly and dispersal areas. Separate agreement letters are maintained, and "also insured" insurance certificates are provided to property owners when requested. We will again be using the Bruce Titus Ford parking lot for the reviewing stand. 10. Parade applications mailed out of county will include information regarding availability of overnight accommodations. Fathoms O' Fun does not provide lodging to parade participants, but encourages the use of city and county food and lodging providers. I l. Fathoms O' Fun provides tansportation during the parade formation period to move parade participants between the end of the parade route, the Mall area, and Port Orchard Boulevard. Fathoms Special Event Application Page2 Page 330 of 351 Estimate dur=GI?iTY TBANF.K lniegrlty Trafflc 13565 SW Tualatin-Sherwood Rd. Suite 800 Sherwood OR 97140 Phone (503) 502-5339 Bllllng Address lntegrity Traffic - WA lntegrity Traffic WA Phone: Estimato #: SMP(o)-10223 Estimate D alet 03 I 07 I 2022 tlsrvlce Address Port Orohard blvd and Bay ct, Port Or6tard WA 98it66 1.00 $0.00Port Ornherd PeredeNote M40_oo22.O0Nntewater Baltiers 8-00 $736.001 Fleodor - Full Src {OT)O1FR. OT s73B.OO8.00olFFr - OT 1 Flaooer - Full Svc (OT) 8.00 $736.00OIFR . OT I Flaooer - Full Svc (OT) $736-008.00I Flaooer. Full Svc (OT)01FR. OT $ubtotal Tax: Total: $3,384.00 $0.00 $3,384.00 Page 331 of 351 LEGEND:.J € cn '!r&b { ,".*r, I Detour Route Unifomod Police Officer Watq BaEior L@alTraffic Only Sign Busin6$s Op6n Sign EvontVolunter Right Tum Only SUn SR 166 Closure E ilEInVi.d t:{ J l$ .+ ato$' * { 1i - Dffril aJ 5E !; B.fl,crAq stqt!h - u@ttu{ 'ZntTtrQP)fY' I PaEdecheck-ln I SlartofPaEde I EndofPaade N+ fi .. 6rhar^v. F ft'" -;f d l^ 13 i 2E e,l, Pr "+ta 2/ ii T ::.g i _:tdng A* : g -."^J3 cI I F T 7 hrena\. IT'tI;; :..l -: .t i**; F( .*' T S i: lilnit{t ttbv u4S{ . c,qi q 5tq *ET Note: RGd Clced Ahead sign to bo placed al Olnoy Road and Bay St@t Ea6t3 Christian VMlliams, PE August 1 0, 2021 Scde:NTS Drawn By: Date: Trafiic Controland Detour Plan Grand Parade ES 1890 Page 332 of 351 #p@" /hPrl r *iis,?i'J8ifls Kitsip Regicnal Library. Port Orchard ossFit c t4unicipal ,n The Bay Mercantile t-:3 y!3i ; '1,1; i,l ltl i-'@'Iurnrture 9:ola T:te G'-:;.t A,i' e a;iie"i :;r::"i::..11 ) {, * -r. a -,-;;a: 5 r... i. :, ( Port Orcl Farmers Me Peninsula Fer Povrer Equipr 9-I 9 I e I .9r 11:"1 i Bail fionds 3:1 :11 :';ii g l,i i1 Jii 1.,'ler 1t ri.:l $r 8e.,, -i1 r:-3;iI Brick Ally Tcy stcre Bt',:;tir::rrise I ii 'ra C;:iiief i-).i:rli e Prospect Alley o0 P"otq,, I : r FilapnI IAroqoeca Jak Aktiin afio Comics Games Game slcre Kitsap l-louse Pori Orcha;'d Uniieci l,,iethodist Prospect Alley Go ,gle 3::'--.1';;. Qr:'.., I Marie-Luce Enterprises Corrnc!rc: ttore Proupu"a Sidney rururuu* S I I I I i t4. :: .D dc$ 81 rp oltII(D() q 0 Kitsap St I Kitsas St KitsaD St Kilsao $tPage 333 of 351 frp,+"" {hPP4P- Apartments Selen i:'i ljr ' lr tl-i E:, :,il: e*".';oQ I Port Orchard Farmers Market Peninsula Feed & Porver EquipmentI Prospect Alley 6l{ oth {oE Coles Ln i.lir:': :l: Gl iil noof,t,g (D.9 r Fr rl 'r, I *lari e-Luce Enterprises :orrndlc, 9loa" T:'1;i ;-. t-,.1: i1; 5 Frospect Alley Frospe*t Alley I'dorton Sl 6s,rgle no(,rao (E o c Ct Bpe'psl Kitsap Sl Kitsap $l Kit$ap St Kitsap $tPage 334 of 351 6 lhw+s .{"-- Roger's Center . .,,r o=_Ii. ; a4- j;r-t'-t-,;vviln*L:*9 bP I aay trAzl,- horel iJ lnn On The 4.1 * Z-star Slaughter Countv Brer$ng Company Nostaigta House Bariery' Ea I Port Orchard Ford Service Department Afio regair shop I lSestiI EI Qrnr Turner Park t I I I I l I g, r D D D KeyBankIKitsap RV RV dealer I Black J Paddlesurf Co Surf shop nlo$* I dr.f g 76 ts{e Qcarotroni I !, t. 0 oor€o >€It Foor ElD Morton St $rmply lrresistible Pets Page 335 of 351 9 tr 6 IdBest Massnge q One Stop Laundri" tslue G.:i---:,e Taveltq'I GuY V'letzel Rd f,tp#r Orchard Ford Car cletlcr i:ia JCnit' r-;-1r1,.i!,' i r:.,, tr.11 C: :,ti[,,3 i.1., i!1r1:i4f gi; H0LiSe BAr:f :".r' I Hi r,d* B,lr ,1,r,.:j]rilF= toiismot<e Tobicc! shopII Kitsap RV RV dealer Port Orchard Ford Service Department Auto repair shop * I ttlestiia.\' ?IC Bay,t 6uoy t.? Es I t Black J Paddlesurf Co Surf shop Qrttu Turner park KeyBankI 0 dr.s e o$,*+* N,le e wI s Land Tille Grcup + .c' Y Morton $t E .' GI .!j 7;'n z G '@, I I Aegi f + s@Y76 l'"4";'f; ,; i:t:js li'larir *t i!-i,- - r: -, i..,-:...-:a d + Cardtronics .a.TLil sot$,s .Po zl(o It4odon $1 "11Cl rt {! P cl l} > .9a I Sininly lrresistible Pels Go.'gle Page 336 of 351 \TUIIgCTJU Y u-,#,XT',131#9 Annapolis !0*elos Po m RETSIL Lisa's Leaves & My Greenhouse l! (u ul 5c os DrE o, o I I Qt'.' Kitsap County District Court htelcher Sr Rodry Sl :P-enrns---Y/-Be'.,tln Procpecl Allcy Port Orchard o{kolb St oivision S Smitfi Sr &Di States Service UJq, Eg E o,(F St. Vincent de Paul Society I I i u4Btrc6.s:cf6 'i aco.^ s 9 sEHorqmanRd ?Ls* Bi-Mart Membership Discount Stores I l I 'rli. : nlbertsons$Io oo CF g:o3 ut., ! cc &k Mile HillPlaza I :-"--'-----*::Ta CO, e el l$ fFree Oelrr'e[' on 1 st Order S oon I Mlle: Orchard >/w Llalchcr St a IIChevron a II I t @ oa :.o o @ @ffi a0 o I L tluel4apg.;I {c> iiMoF3 s 8 .g*"of , Trefioil St W Di,,V;J,iE.,H5f South Kitsap High o'. 1r's :.:e s€{a aoo FoPage 337 of 351 SprclRt- Everur Pennnr Applrcnrpru (Ponr OncnnRo Murutctpnl Coos 5.94 nruo 5.96) STANDARD PRocEssrNG rss: $50.00 ADDrrloNAt ExpEDtrED rnr (r-asrxnn 90 BuTMoRETHAN 30 DAys BErone rverur): $SO.OO Event Overview Admission Fees: Event Details Name of event: Fathoms 2-DaV Summer Festival Craft & Vendor Show Location of event: Downtown waterfront - Lol#4 Type of Event:flestival frualk/Runflarade ,/i/endor Fai lolock PartV Ittre Event or Organization Website: www.fathomsofun.org Description of event: Two-day Summer Festival consisting of vendors and kids craft activity area. Does your event require a paid fee for participants and/or spectators?,/ Does your event require minimum or suggested donation for participants and/or spectators?/es ,/\o Ad mission/participation fee/ suggest donations a mou nt(s) Vendors pay a vendor fee but spectators do not pay. Take Down Complete:set up starts: End Day: Sunday End Date: June26,2022 End Time: 6PM Start Day: Saturday Start Date; June 25,2022 Start Time: 0600 am Expected Daily Attendance: Participants Spectators volunteers/staff Event Dates/Times: lndicate Datesfiimes OPEN to attendees 4Start Time: 9am End Time: 9pm 45+900Day: Saturday Date; 6125 4Start Time 9am End Time: 4pm 45+500Day: Sunday Date: 6t26 Day:Date:Start Time End Time; Additional details: (attach additional pages as needed for additional days or details) Fathoms will have a Saturday overnight security person at the vendor area. Details of the individual will be provided to POPD. I City of Port Orchard I Special Event Application Revised 72/37/2021 Page 3 of 10Page 338 of 351 Name of Organization: Fathoms O' Fun FeStival, lnC. Do you have an active City Business License?{ Y"t trNo What is your UBI number?6g1 2gg 0gg LLo 2ta- (7t 1f>.rdeshw,v Mailing Address: (if PO Box 312 Street Address:from street address) ntPoi Contactof aN e'm fue se 3A)420?%e City:State: yy4 zip:99366 citY: P6r1 orchard State:zip Phone:Alternate Phone:Email: Organization lnformation* *Pleose note the orgdnization lnlormotion provided may be shared lor Inquires mode on event details Alcohol The sale, service and consumption of alcoholic beverages are subject to Washington State Liquor & Cannabis Board (WSLCB) regulations, licensing, and permit requirements. WSLCB Special Occasion and other Licenses and related fees for alcohol sales/service at events are not included in the City's Special Event Permit. Visit the WSLCB website, https://lcb.wa.eovl for additional information and to apply for the appropriate license / Permit. Will alcohol be sold or consumed at your event?fl"'* Zto *lf yes, you must contact the Washington Stote Liquor ond Connobis Board lor a speciol liquor license. Food You will need to reach out to the Kitsap Public Health District qs they moy require o temporory food estoblishment permit. Visit thelr website at https://kitsappublicheolth.ora/FoodSofetv/food vendors.php or coll (360) 728-2235 for informotion, ?mY"'fh" m" ffi"' flt", 45Will your event have any food service and/or sales Will your event have professional catering? Will your event have food trucks? lf yes, how many: lf yes, how many: lf yes, how many; lf yes, how many: 4 3 Will your event have food booths or food vendors? Restrooms see attached list Prove the number of restrooms that will be available to the public for your event: Below is an example of the estimated amounts needed per the amount of users recommended in the FEMA Special Events Contingency Planning: Job Aids Monuol. No. of users (50% male and SQo/o female)Minimum number of portable toilets up to 240 3 250 to 499 4 500 to 900 6 1,000 to 1,999 L2 2,000 to 2,999 25 3,000 to 3,999 38 4,000 to 4,999 50 City of Port Orchard I Special Event Application Revised 12/37/2021 Page 4 of 10Page 339 of 351 Collection Stations: How many bins are you providing as collection containers at your event? 2 Recycle 6 { Will you manage your own recycling and garbage collection or will it be managed by a vendor? Self-Haul List vendor/company, if applicable: Detail your plan for waste management within the event area and surrounding neighborhood: Waste Management dumpster will be placed in the library parking lot nearest the fire hydrant Garbage ond Recycling Amplified Sound Does your event have any amplified sound? Noise levels generoted shall not be in excess of allowable levels, consistent wlth POMC 9.24.050. For more information pleose contad the Port Orchdrd Police Department (360) 876-7700. Tents Does your event include a tent or membrane structure?Applicable lf yes, what is the tent size: vendors will have pop ups Does the tent have si applicable May be requlred to obtoin a permit per POMC 20.204.070 pleose contoct Community Development (3601 874-5533. [r",f,*o Cityof Port Orchard I Special EventApplication Revised 12/37/2027 Page 5 of 10 lndicate dates/time of any amplified sound below: Day:Date:Start Time:End Time: Day:Date:Start Time:End Time: Day:Date:Start Time:End Time: Describe what sound will be amplified, and at what hours (e.9., 7:00am announcements, 8;00am background music, etc.): We possibly may have a DJ or some kind of music for Sunday but uncertain at this time. Describe what equipment will be used for amplified sound, and at what locations (show in maps): Describe schematics and direction of amplified sound (show in maps, attach supporting documents as needed Page 340 of 351 Use of City Right-of-Way and Parking lmpacts Use of State Highway: Will this event require closure of a State Highway Street (Bay Street/SR166)? f|t"t m*" For State Hlghway Closures (Bay Street), the sponsoring orgonizotion must submit the application to the cW ot leost 720 calendor days before the event dote. Upon city opproval of the event, the sponsorlng organizotion shall seek permission from the Wdshington State Deryrtment of Tmnsportation (WSDOT) by completing an online opplicotlon. Once permlssion is granted from WSDOT, a copy of the Letter ol Acknowledgment or dn Agreement wlll need to be provided to the cW, WSDOTs online oppllcotlon is locafed at' https://www.wsdot.wa.gov/contact/events/special-events Use of Public Property (Right-of-way): fort Orchard Municipal Code 5.94.020(7) states "Right-of-way (ROW)" means any road, public parking loq city street, highway, boulevard or place in the city open as a matter of right to public travel and shall include arterials, neighborhood streets, alleys, bicycle paths and pedestrian ways; including streets or portions thereof which are designated as portions of the state highway system." Will this event require closure of any of the below public property? }f yes, indicate what type of public property is requested to be closed and the location (select all that apply): City Parks: n Zee Park Village Park Turner Park Zl'*No l_lto,. ano Powers Park Parking Lots: I Park 3: five rows of rking west of Harrison Ave and east of and parallel to the library l-Zrot +' att parking east of Lot 3 and Harrison Ave and west of the Marina Park Park 5: all parking on City ll property in front of the Police department Lot 6: abutting the ndscaped area at the SW corner ofthe Bay St and Dekalb St intersection Park 7: all parking spaced on the library property which is limited to library staff only 8: employee parking lot of City Hall adjacent to Prospect Alley which is between Kitsap Street and Prospect Street, 1: between Orchard Frederick streets on the north side of Bay Street 2: between Street and SidneyAvenue, north of Bay St. ks: lf requesting street closure, fill out the closure lnlormotion below and provide o tralflc control plan ol the areo impocted. Traffic Control Plan: Provide the name of the traffic control company you are using to direct traffic, manage road closures, and providing certified flaggers: City of Port Orchard I Special Event Application Revised 12/37/2027 Page 6 of 10Page 341 of 351 Street Closure Details: Parking lmpacts Have parking impacts been coordinated with neighbors (residential/business)? lf yes, how will parking be provided for participants and visitors (including handicapped parking)? r'ro ffiotnPPllcable Street Name:Between (cross street): And (cross street) Start Date:Start Time:End Date:End Time: Additional details: (attach additional pages as needed for more streets and/or more details about use.) Event Signoge Are you planning to put up temporary rignrffi", POMC 20.732.290 "lemporary sign" (which may include special event sign) means any sign that is used temporarily and is not permanently mounted, painted or otherwise affixed, excluding portable signs as defined by this chapter, including any poster, banner, placard, stake sign or sign not placed in the ground with concrete or other means to provide permanent support, stability and rot prevention. Temporary signs may only be made of nondurable materials including, but not limited to, paper, corrugated board, flexible, bendable or foldable plastics, foamcore board, vlnyl canvas or vinyl mesh products of less than z0-ounce fabric, vinyl canvas and vinyl mesh products without polymeric plasticizers and signs painted or drawn with water soluble paints or chalks. Signs made of any other materials shall be considered permanent and are subject to the permanent sign regulations of this chapter. Please contact the Community Development Department at (360) 874-5533 if you have questions or if you need to apply for a sign permit. Vendors Does your event indicate vendors lf so, will they be selling merchandise and/ or food?fiV", fno lf so, how many anticipated exhibitors/vendors will be at yort. "u"nt? 45 POMC 5.95, il your event has two or more vendors engaged in public propefty vending, you ore required to hove o Moster Multl-Vendor Event License (MMVEL). The MMVELfee is 575.00 per day or $200 per month. POMC 5.96.020(3)(a) states the City of Port Orchard I Special Event Application Revised 72/37/2027 Page 7 of 10 Page 342 of 351 sponsor of the master event shall provide a list oI participdting vendors, their business nomes, their dddresses dnd their State Tax Revenue ldentification Numbers to the city clerk within three working days ofier the lint dqy ol the operation. o No public vending is allowed within twenty-five (25) feet of any municipal building, monument, or fountain, OR within ten (10) feet of intersection sidewalks. o Vending devices must be removed from vending sites daily between the hours of 10:00 p.m. and 6:00 a.m. r Vending devices and vending sites must always be clean and orderly. The vendor must furnish a suitable refuse container and is responsible for the daily disposal of refuse deposited therein. Refuse containers must be removed each day along with vending devices. e Vendors may engage in public property vending only in the location specified in the public property license. The location shall be deemed the vending site. o UtilitV service connections are not permitted, except electrical when provided with written permission from the adjacent property owner. Electrical lines are not allowed overhead or lying in the pedestrian portion of the sidewalk. o No mechanical audio or noisemaking devices are allowed, and no hawking is allowed. r A vinyl or canvas umbrella may be added to the vending device, but its open diameter may not exceed eight and one- half feet. Any part of the umbrella must have a minimum of seven feet of vertical clearance to the area on which the vending device stands. o lndividual vendor advertising signs may be placed only upon the vending device. Temporary master event advertising signs may be placed as approved by the city engineer; and o No conduct shall be permitted which violates any other section of the Port Orchard Municipal Code. Site Map A site map is required to be submitted which includes the following: No l-l*o, appticabteVendors: Beer Garden: Signage: Tents: Public entrances and exits: Road closures and detours: Traffic patterns: Fire Lanes: Garbage/Recycling: Barricades: First Aid: Parking: Restrooms: El*" I*o I*o [to m"f]" ft" [*o I*" Zl'o Zl*" D'," Mt", f]". Zl'"' fit"' flv"' Ito f}"' Zt"' [Jv"' fZv"' !v"' f]'"' flv"' Z"* applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable applicable lf event is a run/walk, list start and stop locations and water/rest stations: l7lr,rot applicable City of Port Orchard I Special Event Application Revised 12/31/2021 Page 8 of 10 Page 343 of 351 Insurance The sponsoring organization must provide an insurance certificate, with endorsements, at least 30 days prior to the event with the City of Port Orchard shown as Additional Named lnsured with minimum coverage to be as follows: 51,000,000 tiability; $1,000,000 Bodity Injury Special Event lnsurance for events held at city-owned facilities can be purchased at eventinsure.hubinternational.com/. Reledse I certify that the event for which this permit is to be used will not be in violation of any City of Port Orchard ordinance. By applying for this special event permit, the organization or entity obtaining such permit agrees to defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from all claims, injuries, damages, losses, or suits, including attorney fees and costs, arising out of or in conjunction with the activities or operations performed by the applicant or on the applicanf s behalf resulting from the issuance of this permit, except for injuries and damages caused by the sole negligence of the City. The information on this form is consldered o public record and is subject to public disclosure laws in Chopter 42.56 nCW. l, as the President or Chair of my organization, agree to the terms and conditlons listed above. Sharron E King Digitally signed by Sharron E King Dafe'. 2022.03.09 1 3: 1 8:30 -08'00' Signature of President/Chair of Organization Print Name Date F'OR CITY CLERK'S OFFICE USE ONLY Comments received by: Date final review sent: Date S50 Permit Fee Received: Date S50 Expedited Fee Received (if applicable) I potice n puUtic Works E Finance fl Community Development ! ritsap transit E Clerk's office I Health District Date lnsurance Certificate(s) Received Does event require a Master Multi-Vendor License: I Ves fI trto lf Yes: E SfS/Uay fee [ $2O0/monthly fee Number of days:Amount:Date fee paid: City of Port Orchard I Special Event Application Revised 12/37/2027 Page 9 of 10 Page 344 of 351 I I Speciol Event Permit Application Checklist Please use this list to ensure you have included all supporting documentation with your special event application. [l,t rour, event coincides with another organizations event in the same location, please provide written approval from the event organizer that indicates their approval of your event. Fln"ui"*"d Special Event Tool Kit FlWritt"n approval from property owner if location is on non-City owned property (if applicable) (Page 2) |7lspecial Event Fee (Check, Cash, Credit Card) (Page 3) Permits (if applicable) (PaCe A) ial Liquor License (if applicable) (PaCe a) l-lCont.a Department of Community Development for tent permit (if applicable) (Page 5) there are road closures, have you attached a traffic control plan (Page 6) pon event approval, use of State Highway Letter of Acknowledgment or an Agreement that is received from the Department of Transportation if State Highway is requested to be closed (Page 6) lZuaster Multi-Vendor Event License fee (if applicable) (Page 7) ntact Department of Community Development for sign permit (if applicable) (Page 7) MCompteted site map (Page 8) lThpecial Event Application/Release is completed and signed by the President or Chair of organization (Page 9) |7ltnrrr"n.e Certificate, with endorsement, provided at least 30 days prior to event date (Page 9) Tips for a successful event * Contact the local media (Kitsap Sun, Port Orchard lndependent etc.). * Post information on your social media site. * Contact the Port Orchard Chamber of Commerce. * Attend a City Council meeting to speak during citizen comments letting council and public know of your event City of Port Orchard I Speclal Event Application Revised 12/37/2021 Page 10 of 10 Page 345 of 351 Fathoms O' Fun Festival 2-Day Summer Festival Placement of Hemlet's Handv Kans: Marina Park Area: 3 Regular and 2 Handicap 6 POB Restrooms 1 POB Sani-Ca Page 346 of 351 FATHOMS O' FUN z.DAY SUMMER FESTIVAL CRAFT & VENDOR SHOW June 25-26,2022 ,_i',.* 'iJ iJ K Q-'ls * \* i b)\ f-' bt ka t*- f#g I &* Iffi I "t "t: r!'1li tt Fr $)'s ;, 'i; $ ),\ t\rt ?.I ! I I i I 1 otr F tt t, Iil 1 I fin f4jf, 1q,E .!.a I Vr";-,"h\* 3 Regular toilets & 2 Handicap toilets placed at POB Restroom Facility Red dashes = Fire Lane Green-Dumpster Yellow dots - garbage cans Red Square-First Aid Solid Black - Sign Barricade Blue dots- recycle cans Blue Square/Rectangular - Vendor Areas Page 347 of 351 City of Port Orchard Council Meeting Minutes Work Study Session Meeting of April 19, 2022 CALL TO ORDER AND ROLL CALL Mayor Putaansuu called the meeting to order at 6:30 p.m. Roll call was taken by the City Clerk as follows: Mayor Pro-Tem Lucarelli Present via Remote Access Councilmember Chang Present via Remote Access Councilmember Clauson Present via Remote Access Councilmember Cucciardi Present via Remote Access Councilmember Diener Absent Councilmember Trenary Present via Remote Access Councilmember Rosapepe Present via Remote Access Mayor Putaansuu Present via Remote Access Staff present via remote access: Community Development Director Bond, Police Chief Brown, City Clerk Wallace, and Deputy City Clerk Floyd. The meeting also streamed live on YouTube. Pledge of Allegiance Mayor Putaansuu led the audience and Council in the Pledge of Allegiance. DISCUSSION ITEMS 1. Port Orchard Community Event Center (CEC) Presentation (Time Stamp 0:00:50) Community Development Director Bond explained the presentation will be given by our consulting team which includes Rice Fergus Miller, KPFF, and KPG. The presentation was shown included the subarea plan and vision, site layout, Bay Street and adjacent projects, the “Look and Feel” of the outdoor spaces, site activation and programming, level 1 and 2 floor plans, main floor and upper floor-schematics, views from Bay Street, Orchard Street Plaza, and outdoor deck. Additional discussions were held regarding the proposal for extra space and storage, teen and children’s space, property of the Port of Bremerton, stage, popup retail, landscaping, outdoor space, funding, and library. Council Direction: No direction given to staff. Page 348 of 351 Minutes of April 19, 2022 Page 2 of 4 2. One Word Survey (Time Stamp 0:30:15) Mayor Putaansuu provided results from the One Word Survey and public outreach which included Bay Street, Friendship, Fellowship, Kindhearted, Partnership, and Port Orchard. Discussion was held regarding the results, noting the majority of the Council prefers the Port Orchard one-word result. Council Direction: No direction was given to staff. 3. RCO Grant Applications (Time Stamp 0:36:46) Community Development Director Bond noted the City is working on several grant applications with the Recreation Conservation Office (RCO). For each grant application, the Council must approve a resolution consenting to a staff person applying for the grant. The signing of the grants would be completed later. One of the applications is being prepared by public works. The application is to extend non-motorized improvements between McCormick Village Park and along and Old Clifton Road. The total project cost is $1,000,000. The proposal is to seek $500,000 from the RCO with a 50% match. The impact fee eligible is parks and/or transportation impact fees. Council voiced support of this grant. Another grant application is to develop active recreation or public spaces around the upcoming Events Center, including possible shoreline restoration. The total project cost is $4,000,000. The proposal is to seek $500,000 from the RCO with a 50% match. The impact fee eligible, is park impact fees. Additional discussion was held regarding the project scope which included the shoreline restoration as well as the plaza and stage. The last grant application is to refurbish Givens Field basketball court as a multi-use sport court and the tennis courts as tennis/pickleball courts. The total project cost is $310,000. The proposal is to seek $310,000 from the RCO with a 50% match. The impact fee eligible, is park impact fees. Council voiced support of this grant. Council Direction: Move forward with submitting for all 3 grant applications including adding the plaza, stage, and the shoreline restoration larger project scope to the Events Center grant application. 4. Parks Impact Fee Schedule (Time Stamp 0:51:11) Community Development Director Bond said the City currently imposes park impact fees on all residential development within the City. Our current fee schedule was adopted in 2011 and does not Page 349 of 351 Minutes of April 19, 2022 Page 3 of 4 have an automatic CPI adjustment, nor has it been touched since 2011. Fees are $811 per single- family home and $584 per multi-family home. Earlier this year, the City finished work on its Parks, Recreation, and Open Space Plan (PROS). As part of that update, our consultant provided an updated capital improvement program and an impact fee study. The PROS plan called for a six-year investment of 20-million dollars and a twenty-year investment of 68.9 million of new park facilities. These investments are necessary to maintain existing levels of service (ELOS) for City parks based on our expected population growth. The parks plan identifies park impact fees as a major component of the City’s funding strategy. The City’s consultant suggested a fee schedule which assumes 50% of capital costs of the City’s park system be funded with impact fees, but the City can adjust this number anywhere from 0% to 99%. Mr. Bond explained the proposed fee schedule and park impact fee rates which varies depending on if Council charges 30%, 40%, 50%, 60% or 70% of the capital cost of maintaining ELOS for parks in Port Orchard. Discussion was held regarding the alternative rates, Bay Street Pedestrian Pathway, Community Event Center, shoreline restoration, plaza, amount of development within the City, school, traffic and park impact fees, connection fees, growth within the City, effective date, public process, and use of impact fees. Additionally, Community Development Director Bond pointed out projects that will be funded with park impact fees to include the Events Center, McCormick Village Park Phase III, Ruby Creek Regional Park, Waterfront Park expansion, Etta Turner Park expansion, downtown streetscape improvements and Fireweed Stormwater Park. Council Direction: Staff to start advertising for public hearings with the first hearing on May 24th and possible action on June 14th; draft an ordinance with the 70% option; and August 1, 2022, as the tentative effective date. 5. Fee Resolution Update (Time Stamp 1:23:26) Community Development Director Bond said historically the City has updated the fee resolution once a year, but 2020 was the last time it was updated. This is the fee schedule that establishes permitting fees for building, plumbing, mechanical, fire review, public works, land use, subdivision, hearing examiner fees and other policies in the document. One of the main fees the City charges is the cost of building permits. Building evaluations are based upon an International Code Council (ICC) building valuation table which is updated every six months. One of the biggest changes to the proposed fee resolution is the adoption of the February 2022 ICC Building Evaluation Table. The impact on a building permit for a 2,000 square foot house is about a $600 additional cost. The cost of inspection and plan review has also been climbing at the same time as construction costs. When the pandemic began, the City began seeing a huge increase in electronic submittals. Our code states that permit fees have to be paid at the time of the application submittal, but the City was Page 350 of 351 Minutes of April 19, 2022 Page 4 of 4 receiving the applications and then several days letter, would receive payment. We are now clarifying the fee resolution to give us more flexibility in this electronic world. Additional discussion was held regarding other changes including adopting hourly rates for staff members, charging for fire permits, updating the City refund policy, streamlining and process improvement for third-party consultants, support from the Finance Committee, and comparison with other cities. Staff is prepared to bring before the Council next week for adoption. Council Direction: No direction was given to staff. 6. Police Body Worn Cameras (Time Stamp 1:37:19) Police Chief Brown provided a presentation on body-worn cameras and interview room updates to include audio and video requirements, State contract with Axon, upgraded tasers and training suites, virtual reality training, evidence and unlimited cloud-based storage, redaction software, and five- year quote summary. Discussion was held regarding the body-worn cameras, cloud-based storage, and support for these updates. Council Direction: No direction was given to staff. 7. New Item: Mayor’s Report (Time Stamp 1:53:25) • News from Congressman Kilmer’s office regarding the City being 1 of 15 finalists for our Bay Street project for federal appropriation; • Eligibility requirements have changed this year with the Transportation Improvement Board (TIB). The City is eligible to apply for street paving dollars; • Community Development Block Grant (CDBG) funding with Kitsap County for the Lippert Street project and options to withdraw from the program; however, it is in the City’s best interest to continue with Kitsap County managing the grant funding; • The City acquired the Givens property in 1930 from the Kiwanis; and • Read minutes from a 1930’s Council meeting. GOOD OF THE ORDER There was no good of the order. ADJOURNMENT The meeting adjourned at 8:28 p.m. No other action was taken. Audio/Visual was successful. Brandy Wallace, MMC, City Clerk Robert Putaansuu, Mayor Page 351 of 351