05/15/2018 - Work Study - Packet
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City of Port Orchard Council Work Study Session
May 15, 2018
6:30 p.m.
1. Status of Comprehensive Plan Implementation (Diener/Bond) Page 3
Estimated Time: 20 Minutes
2. Comprehensive Plan Update Presentation: Utilities and Transportation
(Bond/Crocker)
Estimated Time: 20 Minutes
3. Small Cell Facilities Regulations (Bond) Page 23
Estimated Time: 20 Minutes
4. WSUD Franchise Agreement Update (Dorsey) Page 45
Estimated Time: 20 Minutes
5. Fourth of July Parade Participation (Rinearson) Page 59
Estimated Time: 15 Minutes
Mayor:
Rob Putaansuu
Administrative Official
Councilmembers:
Bek Ashby
Chair: ED/Tourism/LT Committee
Staff: Development Director
Finance Committee
KRCC / PSRC TransPol / KRCC TransPol
KRCC PlanPol-alt / PRTPO
Shawn Cucciardi
Finance Committee
Land Use Committee
PSRC EDD-alt
Fred Chang
Utilities Committee
Sewer Advisory Committee (SAC)
Staff: Development Director
Jay Rosapepe
ED/Tourism/LT Committee
Utilities Committee
Sewer Advisory Committee (SAC)
KRCC-alt / KRCC TransPol-alt
Kitsap Transit-alt
John Clauson
Chair: Finance Committee
Staff: Finance Director
Kitsap Public Health District-alt
KEDA/KADA-alt
Cindy Lucarelli
Chair: Utilities and SAC Committee
Staff: Public Works Director
Chair: Chimes and Lights Committee
Staff: City Clerk
KEDA/KADA
Scott Diener (Mayor Pro-Tempore)
Chair: Land Use Committee
Staff: Development Director
ED/Tourism/LT Committee
PSRC Growth Mgmt-alt
Department Directors:
Nicholas Bond, AICP
Development Director
Mark Dorsey, P.E.
Director of Public Works/City Engineer
Debbie Hunt
Court Administrator
Noah Crocker, M.B.A.
Finance Director
Geoffrey Marti
Police Chief
Brandy Rinearson, MMC, CPRO
City Clerk
Contact us:
216 Prospect Street
Port Orchard, WA 98366
(360) 876-4407
This Page Intentionally Left Blank
City of Port Orchard
Work Study Session Executive Summary
Issue Title: Status of Comprehensive Plan Implementation
Meeting Date: May 15, 2018
Time Required: 20 Minutes
Attendees: Nick Bond, Community Development Director
Background/Issue: In June 2016, the City Council adopted the City’s updated Comprehensive Plan. The
Council has requested that Department of Community Development staff prepare and maintain a chart of
the measures that will be taken to implement each of the Comprehensive Plan’s goals, and the current
status of each goal. One purpose of the chart is to provide information for the City Council’s May 18 retreat,
so that Council can review the City’s progress in meeting these goals and can direct staff on revised or
additional measures that should be taken. Each year, DCD staff review and update the chart as appropriate
so that a current picture of the City’s implementation status is always available for review by elected officials
and the public.
Alternatives: Provide staff with direction for next steps on continuing or revising actions that are being
taken to implement the Comprehensive Plan.
Recommendations: Staff recommends that Council discuss the implementation status chart and provide
direction to staff.
Relationship to Comprehensive Plan: The implementation status chart provides information on the
City’s ongoing actions to implement the Comprehensive Plan goals.
Attachments: Comprehensive Plan Goals Implementation Status Chart – May 2018
Follow-up Notes & Outcomes:
Action Requested at this Meeting: Provide staff with direction on current and future Comprehensive
Plan implementation measures. As necessary, request staff to provide additional information on
Comprehensive Plan implementation goals for discussion at May 18 Council retreat.
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Goal/Page Implementing Strategy Coordination Status
Chapter 2 - Land Use
Goal 3
Goal 8
Goals 10-20
2-6
2-8
2-15 – 2-20
Prepare and adopt subarea plans for the
designated Centers of Local Importance.
Dept of
Community
Development
Zoning Update
scheduled for
completion in fall
2018. Sub area
plans to begin
thereafter.
Goal 1
Goals 6-9
Goals 10-20
2-5
2-7 – 2-8
2-16 – 2-22
Revise development regulations to
encourage attractive designs, improve street
and pedestrian connections, and establish
preferred uses within individual
neighborhoods and on a citywide basis.
Dept of
Community
Development
Adopted single-
family/duplex
residential building
and fence design
standards became
effective 9/2017.
Commercial and
multifamily city-
wide standards
adopted February
2018. Sign
ordinance adopted
6/2017. Zoning
Code Update
underway.
Goal 2 2-5
Monitor supply and demand for available
land based on the City’s population growth
rate, zoning, and development proposals.
Dept of
Community
Development
Ongoing. The City
has ample land
supply. This supply
is likely to increase
as part of the
zoning code update,
by moving to a form
based code rather
than a code based
primarily on density
limits.
Goal 5 2-6
Continue to implement appropriate
environmental review and mitigation, and
update development regulations to
encourage open space and critical areas
protection.
Dept of
Community
Development
Critical areas
ordinance and other
development regs
updates were
adopted 6/2017.
The Shoreline
Master Program
Update is scheduled
to begin in 2019.
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Goal/Page Implementing Strategy Coordination Status
Chapter 3 - Housing
Goal 10 3-11
Monitor population growth, and adopt
appropriate reasonable measures as
necessary, to continue compliance with the
City’s 2036 population target.
Dept of
Community
Development
Ongoing. Based on
the 2010-2036
population
allocations, the City
should be growing
by 317 people on
average annually.
Currently, excluding
annexation, the City
has grown by about
290 people per year
since 2010.
However, several
final plats have
recently been
recorded and
several
development
incentives are now
in place which are
likely to increase
our population
growth rates to
bring us in line with
the allocation.
Goal 6 3-9
Revise development regulations to
encourage attractive designs, improve street
and pedestrian connections, and establish
preferred uses within individual
neighborhoods and on a citywide basis.
Dept of
Community
Development
Adopted single-
family/duplex
residential building
and fence design
standards became
effective 9/2017.
Nonresidential and
multi-family design
standards were
adopted in 2/2018.
Sign ordinance
adopted 6/2017.
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Goal/Page Implementing Strategy Coordination Status
Goal 1
Goal 2
Goal 5
3-8
3-8
3-9
Update development regulations to support
development of varied types of housing that
are available to all income levels
Dept of
Community
Development
New Title 20 Unified
Development Code
(6/2017) includes a
number of
regulations
intended to
encourage and
support affordable
housing, public
transit and a mix of
residential
development types.
An update to the
zoning code is now
underway.
Goal 3 3-9
Establish development regulations for local
centers that encourage mixed-use
development.
Dept of
Community
Development
Pending following
development of
centers plans and
zoning code update.
Goal 7 3-10
Review and revise the City’s permitting
process to ensure maximum efficiency of
plan review and approval steps.
Dept of
Community
Development/Dep
t of Public Works
The City’s new
permit center
began operating in
July 2017
Goal 4 3-9
Continue to coordinate with Public Works,
Kitsap County, and the City’s outside utility
purveyors to maintain an orderly, efficient
process of utility provision and annexation.
Dept of
Community
Development,
Dept of Public
Works, Kitsap
County, other
utility purveyors
Ongoing
Goal 8 3-10
Develop programs to assist property owners
with maintaining and improving their
properties.
Dept of
Community
Development
Pending
Goal 9 3-10
Continue to implement appropriate
environmental review and mitigation, and
update development regulations to
encourage open space and critical areas
protection.
Dept of
Community
Development
Critical areas
ordinance and other
development reg
updates were
adopted 6/2017.
Chapter 4 - Parks
Goal 1 4-8
As part of local centers planning, updates to
development and critical areas regulations,
and intergovernmental coordination,
identify and establish desired open space
corridors and connections.
Dept of
Community
Development,
Kitsap County,
Tribes, federal and
state agencies.
Pending, to be done
as part of centers
plans
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Goal/Page Implementing Strategy Coordination Status
Goals 2-4
Goal 7
Goal 6
Goal 9
4-9 – 4-10
4-11
4-10
4-11
Research and develop effective plans and
programs that expand and improve park and
recreational facilities and provide attractive
open spaces throughout the City.
Dept of
Community
Development,
Dept of Public
Works, Port of
Bremerton, other
agencies and civic
organizations
Parks Plan update
needed. Funding
request to be
included in DCD
2019-20 budget.
Goal 5 4-10
Work with civic and athletic organizations to
promote sports programs and physical
activities.
Dept of
Community
Development, civic
agencies and
organizations
Ongoing.
Goal 6 4-11
Implement and update when appropriate
the City’s Shoreline Master Program and
shoreline development regulations to
protect the shoreline and encourage public
access and use.
Dept of
Community
Development, WA
Dept of Ecology
Limited amendment
in process with
Ecology complete;
next update 2019-
2020.
Goal 7 4-11
Update development and critical areas
regulations to enhance requirements for
open space preservation and critical areas
protection in new developments.
Dept of
Community
Development
Critical areas
ordinance and other
development regs
updates were
adopted 6/17.
Goal 10 4-12 Install wayfinding signage Dept of Public
Works
First phase
complete; second
phase in early 2018
as part of Tremont
project. More signs
may be requested
under 2019-2020
budget.
Goals 8-9 4-11
Continue to explore opportunities for open
space and parks acquisition through grants
and development requirements, and
maintain existing parks.
Dept of Public
Works
Parks Plan update
required to be
eligible for RCO
funds.
Goal 11 4-12
Consider establishing a parks commission or
similar citizen board, either as a standing
committee or ad hoc committee, to provide
citizen advice to City officials prior to
significant decisions affecting park and
recreational facilities.
City Council
This discussion has
been tabled.
Consider discussing
under future
retreats.
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Chapter 5 – Natural Systems
Goal 2
Goal 5
Goal 6
Goal 9
5-10
5-12
5-13
5-14
Review and update stormwater regulations
and revise as necessary for consistency with
Best Available Science and federal/state
requirements. Establish incentives for use of
Low Impact Development stormwater
techniques and enhanced water quality
treatment.
Dept of Public
Works, Dept of
Community
Development
Stormwater/LID
regulations updated
12/2016 to comply
with Ecology
requirements and
NPDES permit.
Goal 1
Goal 3
Goal 9
Goal 10
Goal 12
5-10
5-11
5-14
5-15
5-16
Maintain a Critical Areas Ordinance that
incorporates Best Available Science and
complies with all current state and federal
regulations for protection of natural
resources, including critical areas and listed
species.
Dept of
Community
Development
Critical areas
ordinance and other
development regs
updates were
adopted 6/17.
Goal 11
Goal 13
Goal 15
5-15
5-16
5-17
Work with other governmental jurisdictions,
tribes, public-private partnerships and other
agencies to provide accurate, updated
inventories of listed species and their
habitats and identify ways to coordinate
protection of listed species.
Dept of
Community
Development,
other
governments,
tribes and agencies
Critical areas code
updated 6/17.
Ongoing.
Goal 14 5-17 Update the Ross and Blackjack Creek
watershed plans.
Dept of
Community
Development,
Tribes, other
parties and
agencies
Suquamish Tribe
released a draft
Blackjack Creek
watershed plan in
late 2017. Ross
Creek pending.
Goals 16-17
5-18
Develop and maintain a citywide water
quality and quantity monitoring program,
including educational outreach, retrofitting
and use of best management practices.
Dept of Public
Works
The City began its
TMDL monitoring
program in 2017 and
its WSSOG education
and outreach
program in 2013,
and these efforts are
ongoing.
Goals 18-19
Goal 21
5-19
5-20
Encourage appropriate, diverse shoreline
uses that avoid impacts to the shoreline
environment
Dept of
Community
Development
Ongoing
Goal 4 5-11
When updating the City’s maps for critical
areas, future land use and zoning, consider
geological hazards when determining
appropriate classifications and protection
overlays to ensure compliance with Best
Available Science and the most current
federal/state regulations.
Dept of
Community
Development
To be implemented
as needed in centers
and subarea
planning, rezones,
and regulation
updates.
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Goals 7-8 5-13 – 5-14 Review existing floodplain regulations and
flood maps, and update as appropriate.
Dept of
Community
Development
Floodplain maps and
regs are currently
consistent with
FEMA regs; ongoing
monitoring
Goal 20 5-20
When updating the Shoreline Master
Program and Parks Plan, develop policies
and regulations that encourage appropriate,
diverse shoreline recreational opportunities.
Dept of
Community
Development
Pending (2019-2010)
Goal 19 5-19
Consider developing a waterfront historic
overlay district and identifying shoreline
sites and structures that should be
preserved while still allowing appropriate
development and redevelopment along the
shoreline.
Dept of
Community
Development
Pending
Chapter 6 - Economic Development
Goal 2
Goal 6
Goal 8
6-10
6-12
6-12
Develop and implement subarea plans and
regulations for local centers and existing
development concentrations that promote
appropriate commercial development.
Dept of
Community
Development
Pending following
development of
centers plans
Goal 1
Goal 3
Goal 9
6-9
6-10
6-13
Expand coordination and partnerships with
economic development agencies such as
KEDA and the Port Orchard Chamber of
Commerce, and with other local and
regional agencies, to create a business-
friendly environment and promote
opportunities for business establishment
and growth.
Dept of
Community
Development,
KEDA, PO Chamber
of Commerce, City
of Bremerton, Port
of Bremerton,
other agencies
Economic
Development and
Tourism committee
has established an
educational program
for small business
owners and
prepared a tourism
strategic plan, in
conjunction with
POBSA. A welcome
letter and
informational
package has been
prepared for new
business owners.
Goal 4 6-11
Review development regulations and revise
as necessary to promote and facilitate
tourism, small businesses, home businesses
and local arts.
Dept of
Community
Development
Development regs
update was adopted
6/2017, zoning code
update underway.
Goal 5 6-11
Review and revise development regulations,
as necessary, to promote healthy living
opportunities.
Dept of
Community
Development
Pending, as part of
centers and subarea
planning, zoning
code update.
Goal 7 6-12
Explore opportunities to attract clean, heavy
industrial uses with an appropriate balance
of production and environmental protection.
Dept of
Community
Development
Update of Zoning
Code underway.
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Goal 10 6-13
In conjunction with the South Kitsap School
District, Olympic College and other
educational institutions, establish
partnerships to promote and encourage
local educational opportunities for a skilled
workforce.
Dept of
Community
Development, SK
School District,
Olympic College,
other agencies
Pending
Chapter 7 - Utilities
Goals 1-3
Goal 5
7-9 – 7-10
7-11
Provide ongoing informational updates to
utility purveyors that will assist in providing
adequate utilities to serve the City’s
population and projected growth. Ensure
that the City’s development regulations
support availability and expansion of new
technologies to all of the City’s residents.
Dept of
Community
Development,
Dept of Public
Works, PSE,
Cascade, wireless
and telephone
utilities, etc
Ongoing
Goal 3 7-10
Revise development regulations as
necessary to minimize aesthetic impacts of
utilities while retaining functionality.
Dept of
Community
Development,
Dept of Public
Works, PSE,
Cascade, wireless
and telephone
utilities, etc
Pending, Small Cell
Ordinance under
consideration.
Goal 4 7-10
Establish incentives to educate citizens
about resource conservation and encourage
conservation.
Dept of
Community
Development,
Dept of Public
Works
Pending
Chapter 8 – Transportation
Goals 1-2
Goal 17
Goal 20
Goal 22
Goals 24-25
8-62 – 8-63
8-71
8-73
8-73
8-74
Implement adopted roadway design
standards and update as necessary, maintain
established LOS and concurrency
requirements, and maintain consistency
between land use and transportation
requirements in development approvals.
Dept of Public
Works, Dept of
Community
Development
Ongoing
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Goal 18 8-72
Develop design guidelines and standards for
streets, sidewalks, landscaping and ROW
utilities.
Dept of Public
Works, Dept of
Community
Development
City staff and
consultants are
working on design
guidelines and other
code requirements
for street and
sidewalk designs and
landscaping, with
estimated
completion date of
12/2018.
Goal 23 8-74
Continue to pursue funding for street and
transit improvements as proposed in the
Bethel Corridor Plan
Dept of Public
Works, Kitsap
Transit
A capital project for
the bethel corridor is
included in the
proposed 2019-2020
capital budget.
Goal 3 8-63 Explore funding mechanisms and potential
partnerships for identified improvements.
Dept of Public
Works, Kitsap
Transit, WA Dept
of Transportation
Ongoing
Goal 19 8-72
Review and revise parking regulations and
design standards as appropriate. Consider
partnership projects with the Port of
Bremerton for waterfront parking and
alternatives.
Dept of Public
Works, Dept of
Community
Development
The City’s parking
standards are being
considered as part of
the zoning code
update.
Goals 6-9
Goal 11
8-64 – 8-66
8-67
Work with Kitsap Transit to expand transit
options and rider facilities, and develop a
model TOD program.
Dept of Public
Works, Dept of
Community
Development,
Kitsap Transit,
Kitsap Co. Public
Works
The City continues to
coordinate with KT
on zoning code
updates related to
TOD (ex. MUPP).
Goal 10 8-66
Review and amend development and
shoreline regulations as appropriate. Adopt
the Kitsap County Bicycle Facilities Plan.
Dept of Public
Works, Dept of
Community
Development
Shoreline Master
Plan will be updated
2019-2020.
Goals 12-16 8-67 – 8-71 Review and amend development regulations
and street standards as appropriate.
Dept of Public
Works, Dept of
Community
Development
Development regs
update was adopted
6/2017
Goal 21 8-73 Establish an idling policy in coordination
with Kitsap Transit.
Dept of Public
Works, Kitsap
Transit
KT currently has a 5-
minute idling policy,
which is consistent
with this goal.
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Goal 5 8-64
Develop TMPs citywide and monitor/revise
existing TDM and CTR programs as
appropriate.
Dept of Public
Works
The City currently
administers a CTR
program. The City
does not currently
have a TDM
program.
Chapter 9 - Capital Facilities
Goal 1
Goal 4
9-7
9-9
Identify and acquire additional facilities and
land as needed to meet concurrency
requirements. Require that developers
provide adequate facilities to serve new
development and redevelopment.
Dept of Public
Works, Dept of
Community
Development
Ongoing
Goal 9
Goal 11
9-12
9-13
Maintain the identified level of service for
drinking water quality and quantity to serve
the City’s residents, businesses and future
growth, through appropriate maintenance
and development of City water facilities and
conservation of resources, as indicated in
the City’s Water Plan and Capital
Improvements Plan.
Dept of Public
Works, Dept of
Community
Development
Ongoing
Goals 10-11 9-13
Maintain the identified level of service for
sanitary sewer to serve the City’s residents,
businesses and future growth, through
appropriate maintenance and development
of City sewer facilities, as indicated in the
City’s Sewer Plan and Capital Improvements
Plan
Dept of Public
Works Ongoing
Goal 12 9-14
Establish development standards and
incentives to reduce stormwater runoff and
flooding impacts and continue to implement
the City’s Stormwater Management Plan
Dept of Public
Works
Stormwater/LID
regulations updated
12/2016 to comply
with Ecology
requirements and
NPDES permit.
Additional standards
addressing LID
adopted 6/2017 with
new Title 20 Unified
Development Code.
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Goal 6 9-10 Evaluate opportunities for public safety
improvement and implementation.
Dept of Public
Works, Police Dept
PW, the Police
Department and
other city
departments
continue to
coordinate on
project and permit
reviews to identify
and obtain needed
public safety
improvements.
Goal 8 9-10
Based on the adopted Parks Plan and Capital
Improvements Plan, continue to provide
park and recreational facilities at an
appropriate level of service for all residents
Dept of Public
Works Ongoing
Goals 2-3 9-8 Monitor and revise as necessary the City’s
adopted LOS standards.
Dept of Public
Works, Dept of
Community
Development
Ongoing
Goal 7 9-10
Coordinate with the South Kitsap School
District and develop joint policies and
programs as appropriate.
Dept of Public
Works
The City continues to
coordinate with
SKSD in long-range
planning to address
transportation
capacity and safety
issues. See the
proposed capital
project for Old
Clifton and Feigley
Road.
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Appendix A: Implementation Appendix A Pg. 1 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Chapter 2 - Land Use Goal 3 Goal 8 Goals 10-20 2-6 2-8 2-15 – 2-20 Prepare and adopt subarea plans for the designated Centers of Local Importance. Dept of Community Development High Goal 1 Goals 6-9 Goals 10-20 2-5 2-7 – 2-8 2-16 – 2-22 Revise development regulations to encourage attractive designs, improve street and pedestrian connections, and establish preferred uses within individual neighborhoods and on a citywide basis. Dept of Community Development High Goal 2 2-5 Monitor supply and demand for available land based on the City’s population growth rate, zoning, and development proposals. Dept of Community Development High Goal 5 2-6 Continue to implement appropriate environmental review and mitigation, and update development regulations to encourage open space and critical areas protection. Dept of Community Development Medium Chapter 3 - Housing Goal 10 3-11 Monitor population growth, and adopt appropriate reasonable measures as necessary, to continue compliance with the City’s 2036 population target. Dept of Community Development High Goal 6 3-9 Revise development regulations to encourage attractive designs, improve street and pedestrian connections, and establish preferred uses within individual neighborhoods and on a citywide basis. Dept of Community Development High Goal 1 Goal 2 Goal 5 3-8 3-8 3-9 Update development regulations to support development of varied types of housing that are available to all income levels Dept of Community Development Medium Goal 3 3-9 Establish development regulations for local centers that encourage mixed-use development. Dept of Community Development Medium Goal 7 3-10 Review and revise the City’s permitting process to ensure maximum efficiency of plan review and approval steps. Dept of Community Development Medium Page 15 of 64
Appendix A: Implementation Appendix A Pg. 2 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Goal 4 3-9 Continue to coordinate with Public Works, Kitsap County, and the City’s outside utility purveyors to maintain an orderly, efficient process of utility provision and annexation. Dept of Community Development, Dept of Public Works, Kitsap County, other utility purveyors Low Goal 8 3-10 Develop programs to assist property owners with maintaining and improving their properties. Dept of Community Development Low Goal 9 3-10 Continue to implement appropriate environmental review and mitigation, and update development regulations to encourage open space and critical areas protection. Dept of Community Development Low Chapter 4 - Parks Goal 1 4-8 As part of local centers planning, updates to development and critical areas regulations, and intergovernmental coordination, identify and establish desired open space corridors and connections. Dept of Community Development, Kitsap County, Tribes, federal and state agencies. High Goals 2-4 Goal 7 Goal 6 Goal 9 4-9 – 4-10 4-11 4-10 4-11 Research and develop effective plans and programs that expand and improve park and recreational facilities and provide attractive open spaces throughout the City. Dept of Community Development, Dept of Public Works, Port of Bremerton, other agencies and ci vic organizations High Goal 5 4-10 Work with civic and athletic organizations to promote sports programs and physical activities. Dept of Community Development, civic agencies and organizations Low Goal 6 4-11 Implement and update when appropriate the City’s Shoreline Master Program and shoreline development regulations to protect the shoreline and encourage public access and use. Dept of Community Development, WA Dept of Ecology Medium Page 16 of 64
Appendix A: Implementation Appendix A Pg. 3 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Goal 7 4-11 Update development and critical areas regulations to enhance requirements for open space preservation and critical areas protection in new developments. Dept of Community Development Medium Goal 10 4-12 Install wayfinding signage Dept of Public Works Medium Goals 8-9 4-11 Continue to explore opportunities for open space and parks acquisition through grants and development requirements, and maintain existing parks. Dept of Public Works Low Goal 11 4-12 Consider establishing a parks commission or similar citizen board, either as a standing committee or ad hoc committee, to provide citizen advice to City officials prior to significant decisions affecting park and recreational facilities. City Council Low Chapter 5 – Natural Systems Goal 2 Goal 5 Goal 6 Goal 9 5-10 5-12 5-13 5-14 Review and update stormwater regulations and revise as necessary for consistency with Best Available Science and federal/state requirements. Establish incentives for use of Low Impact Development stormwater techniques and enhanced water quality treatment. Dept of Public Works, Dept of Community Development High Goal 1 Goal 3 Goal 9 Goal 10 Goal 12 5-10 5-11 5-14 5-15 5-16 Maintain a Critical Areas Ordinance that incorporates Best Available Science and complies with all current state and federal regulations for protection of natural resources, including critical areas, shorelines and listed species. Dept of Community Development Medium Goal 11 Goal 13 Goal 15 5-15 5-16 5-17 Work with other governmental jurisdictions, tribes, public-private partnerships and other agencies to provide accurate, updated inventories of listed species and their habitats and identify ways to coordinate protection of listed species. Dept of Community Development, other governments, tribes and agencies Medium Goal 14 5-17 Update the Ross and Blackjack Creek watershed plans. Dept of Community Development, Tribes, other parties and agencies Medium Page 17 of 64
Appendix A: Implementation Appendix A Pg. 4 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Goals 16-17 5-18 Develop and maintain a citywide water quality and quantity monitoring program, including educational outreach, retrofitting and use of best management practices. Dept of Public Works Medium Goals 18-19 Goal 21 5-19 5-20 Encourage appropriate, diverse shoreline uses that avoid impacts to the shoreline environment Dept of Community Development Medium Goal 4 5-11 When updating the City’s maps for critical areas, future land use and zoning, consider geological hazards when determining appropriate classifications and protection overlays to ensure compliance with Best Available Science and the most current federal/state regulations. Dept of Community Developm ent Low Goals 7-8 5-13 – 5-14 Review existing floodplain regulations and flood maps, and update as appropriate. Dept of Community Development Low Goal 20 5-20 When updating the Shoreline Master Program and Parks Plan, develop policies and regulations that encourage appropriate, diverse shoreline recreational opportunities. Dept of Community Development Low Goal 19 5-19 Consider developing a waterfront historic overlay district and identifying shoreline sites and structures that should be preserved while still allowing appropriate development and redevelopment along the shoreline. Dept of Community Development Low Chapter 6 - Economic Development Goal 2 Goal 6 Goal 8 6-10 6-12 6-12 Develop and implement subarea plans and regulations for local centers and existing development concentrations that promote appropriate commercial development. Dept of Community Development High Goal 1 Goal 3 Goal 9 6-9 6-10 6-13 Expand coordination and partnerships with economic development agencies such as KEDA and the Port Orchard Chamber of Commerce, and with other local and regional agencies, to create a business-friendly environment and promote opportunities for business establishment and growth. Dept of Community Development, KEDA, PO Chamber of Commerce, City of Br emerton, Port of Bremerton, other agencies Medium Goal 4 6-11 Review development regulations and revise as necessary to promote and facilitate tourism, small businesses, home businesses and local arts. Dept of Community Development Medium Page 18 of 64
Appendix A: Implementation Appendix A Pg. 5 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Goal 5 6-11 Review and revise development regulations, as necessary, to promote healthy living opportunities. Dept of Community Development Medium Goal 7 6-12 Explore opportunities to attract clean, heavy industrial uses with an appropriate balance of production and environmental protection. Dept of Community Development Low Goal 10 6-13 In conjunction with the South Kitsap School District, Olympic College and other educational institutions, establish partnerships to promote and encourage local educational opportunities for a skilled workforce. Dept of Community Development, SK School District, Olympic College, other agencies Low Chapter 7 - Utilities Goals 1-3 Goal 5 7-9 – 7-10 7-11 Provide ongoing informational updates to utility purveyors that will assist in providing adequate utilities to serve the City’s population and projected growth. Ensure that the City’s development regulations support availability and expansion of new technologies to all of the City’s residents. Dept of Community Development, Dept of Public Works, PSE, Cascade, wireless and telephone utilities, etc High Goal 3 7-10 Revise development regulations as necessary to minimize aesthetic impacts of utilities while retaining functionality. Dept of Community Development, Dept of Public Works, PSE, Cascade, wireless and telephone utilities, etc Medium Goal 4 7-10 Establish incentives to educate citizens about resource conservation and encourage conservation. Dept of Community Development, Dept of Public Works Low Page 19 of 64
Appendix A: Implementation Appendix A Pg. 6 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Chapter 8 – Transportation Goals 1-2 Goal 17 Goal 20 Goal 22 Goals 24-25 8-62 – 8-63 8-71 8-73 8-73 8-74 Implement adopted roadway design standards and update as necessary, maintain established LOS and concurrency requirements, and maintain consistency between land use and transportation requirements in development approvals. Dept of Public Works, Dept of Community Development High Goal 18 8-72 Develop design guidelines and standards for streets, sidewalks, landscaping and ROW utilities. Dept of Public Works, Dept of Community Development High Goal 23 8-74 Continue to pursue funding for street and transit improvements as proposed in the Bethel Corridor Plan Dept of Public Works, Kitsap Transit High Goal 3 8-63 Explore funding mechanisms and potential partnerships for identified improvements. Dept of Public Works, Kitsap Transit, WA Dept of Transportation High Goal 19 8-72 Review and revise parking regulations and design standards as appropriate. Consider partnership projects with the Port of Bremerton for waterfront parking and alternatives. Dept of Public Works, Dept of Community Development Medium Goals 6-9 Goal 11 8-64 – 8-66 8-67 Work with Kitsap Transit to expand transit options and rider facilities, and develop a model TOD program. Dept of Public Works, Dept of Community Development, Kitsap Transit, Kitsap Co. Public Works Medium Goal 10 8-66 Review and amend development and shoreline regulations as appropriate. Adopt the Kitsap County Bicycle Facilities Plan. Dept of Public Works, Dept of Community Development Medium Goals 12-16 8-67 – 8-71 Review and amend development regulations and street standards as appropriate. Dept of Public Works, Dept of Community Development Medium Goal 21 8-73 Establish an idling policy in coordination with Kitsap Transit. Dept of Public Works, Kitsap Transit Low Goal 5 8-64 Develop TMPs citywide and monitor/revise existing TDM and CTR programs as appropriate. Dept of Public Works Low Page 20 of 64
Appendix A: Implementation Appendix A Pg. 7 Port Orchard Comprehensive Plan Final: June 2016 Goal/Page Implementing Strategy Coordination Priority Level Chapter 9 - Capital Facilities Goal 1 Goal 4 9-7 9-9 Identify and acquire additional facilities and land as needed to meet concurrency requirements. Require that developers provide adequate facilities to serve new development and redevelopment. Dept of Public Works, Dept of Community Development High Goal 9 Goal 11 9-12 9-13 Maintain the identified level of service for drinking water quality and quantity to serve the City’s residents, businesses and future growth, through appropriate maintenance and development of City water facilities and conservation of resources, as indicated in the City’s Water Plan and Capital Improvements Plan. Dept of Public Works, Dept of Community Development High Goals 10-11 9-13 Maintain the identified level of service for sanitary sewer to serve the City’s residents, businesses and future growth, through appropriate maintenance and development of City sewer facilities, as indicated in the City’s Sewer Plan and Capital Improvements Plan Dept of Public Works High Goal 12 9-14 Establish development standards and incentives to reduce stormwater runoff and flooding impacts and continue to implement the City’s Stormwater Management Plan Dept of Public Works High Goal 6 9-10 Evaluate opportunities for public safety improvement and implementation. Dept of Public Works, Police Dept Low Goal 8 9-10 Based on the adopted Parks Plan and Capital Improvements Plan, continue to provide park and recreational facilities at an appropriate level of service for all residents Dept of Public Works Medium Goals 2-3 9-8 Monitor and revise as necessary the City’s adopted LOS standards. Dept of Public Works, Dept of Community Development Medium Goal 7 9-10 Coordinate with the South Kitsap School District and develop joint policies and programs as appropriate. Dept of Public Works Low Page 21 of 64
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City of Port Orchard
Work Study Session Executive Summary
Issue Title: Small Cell Facilities Regulations
Meeting Date: May 15, 2018
Time Required: 20 Minutes
Attendees: Nick Bond, Community Development Director
Issue: In recent years, the increased use of wireless communication and data devices has triggered the
need for expanded coverage and transmission facilities. One increasingly common wireless service method
is the “small cell facility”. Small cell facilities typically include one or more radio and antenna combinations
that are attached to existing utility poles within public right-of-way, and require an aerial or underground
line to access power and fiber in order to transmit cellular phone and data signals. They provide wireless
service within a limited geographic area, in order to fill in service coverage gaps and take excessive voice
and data loads from existing cell towers.
The City has received inquiries from wireless providers about deployment of small cell technology within
the City of Port Orchard, to meet the growing residential and commercial service demand on existing
wireless facilities. Therefore, the City Council directed DCD staff to prepare an ordinance for regulation of
small cell facilities located within the public right-of-way. The proposed ordinance establishes standards for
small cell facility permitting, locations, aesthetics (concealed equipment, undergrounding, etc), and
compatibility with adjacent structures and uses, with the intent of minimizing visual and safety impacts and
encouraging new technologies that will serve the current and future needs of Port Orchard.
Alternatives: Direct staff to revise the draft ordinance; or do not adopt small cell facility regulations.
(Please note that the City cannot prohibit small cell facilities, per federal law.)
Recommendations: Staff recommends that Council discuss the draft ordinance and provide direction to
staff.
Relationship to Comprehensive Plan: N/A
Attachments: Draft Small Cell Facilities Ordinance.
Follow-up Notes & Outcomes:
Action Requested at this Meeting: Provide staff with feedback and direction on the draft small cell
facilities ordinance.
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CITY OF PORT ORCHARD, WASHINGTON ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, RELATING TO THE
SMART DEPLOYMENT OF SMALL CELL FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY
BY ENCOURAGING RAPID DEPLOYMENT AND ESTABLISHING STANDARDS FOR
PERMITTING, LOCATION, AESTHETICS, AND COMPATIBILITY FOR COMMUNICATION
STRUCTURES, FACILITIES, AND USES; AND AMENDING THE Port Orchard FEE SCHEDULE
BY ESTABLISHING A FEE FOR A SMALL CELL FACILITY PERMIT; AND PROVIDING FOR
SEVERABILITY AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, it is anticipated that Personal Wireless Service Providers and other
telecommunications service providers will increasingly rely on accessing the Public Right-of-Way of Port
Orchard to install Small Cell Facilities in order to provide improved service to their subscribers; and
WHEREAS, it is anticipated that Personal Wireless Service Providers will heavily depend on
obtaining use of public infrastructure in the Public Right-of-Way, such as light poles, due to a much
greater number of antennas being required by the Personal Wireless Service Providers; and
WHEREAS, it is anticipated that there will be residential and commercial consumer demand and
economic benefits to the City with the improved Personal Wireless Services; and
WHEREAS, the City desires through the passage of this Ordinance to develop a process that will
allow Personal Wireless Service Providers to rapidly deploy Small Cell Facilities while maintaining
reasonable standards for the Public Right-of-Way within the Port Orchard; and
WHEREAS, it is necessary and beneficial for the health, safety, and welfare of the community to
update the regulations for development of small cell facilities; and
WHEREAS, it is important to accommodate the growing need and demand for
telecommunications services while protecting the character of the Port Orchard and its neighborhoods;
and
WHEREAS, there is a need to establish standards for location, aesthetics, and compatibility for
small cell facilities, and uses; and
WHEREAS, it is necessary to encourage the location and collocation of small cell facilities on
existing structures in order to reduce the need for new towers, thereby minimizing visual clutter, public
safety impacts, and effects upon the natural environment, as well as to encourage concealed
technologies; and
WHEREAS, there is a need to encourage the availability of affordable, high-speed internet and
cellular telephone access for businesses and residents, acknowledging that a growing number of
businesses are conducted in whole or in part from homes and/or on-the-go, that increasingly education
incorporates on-line learning necessitating good home internet connections for students and faculty,
and that government participation and emergency service to the general public are enhanced by fast
and reliable cellular and home internet connectivity; and
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WHEREAS, there have been recent changes to the mandates of the Telecommunications Act of
1996, the Middle Class Tax Relief and Job Creation Act of 2012, and other applicable federal and state
laws that require the Port Orchard to update its wireless regulations; and
WHEREAS, a mechanism for permitting of small cell facilities is in the best interest of the citizens
of the Port Orchard;
WHEREAS, pursuant to RCW 36.70A.106, on [INSERT DATE] the City notified the State of
Washington of its intent to adopt amendments to its development regulations [CITY ATTORNEY MUST
DETERMINE WHETHER THIS ORDINANCE IS A DEVELOPMENT REGULATION SUBJECT TO RCW
36.70A.106];
NOW, THEREFORE, THE CITY COUNCIL OF THE Port Orchard, WASHINGTON, DO ORDAIN AS
FOLLOWS:
SECTION I. Title 12 of the Port Orchard Municipal Code is amended by adding the following
new Chapter:
Chapter 12.40 Smart Deployment of Small Cell Facilities:
12.40.010 Purpose
The purpose of this Chapter is to provide specific regulations for the placement, construction, and
modification of Small Cell Facilities by commercial Personal Wireless Service providers in the Public
Right-of-Way. The provisions of this Chapter are not intended to and shall not be interpreted to prohibit
or to have the effect of prohibiting the provision of Personal Wireless Services, nor shall the provisions
of this Chapter be applied in such a manner as to unreasonably discriminate between providers of
functionally equivalent Personal Wireless Services. To the extent that any provision or provisions of this
Chapter are inconsistent or in conflict with any other provision of the Municipal Code or any ordinance
of the City, the provisions of this Chapter shall be deemed to control. This Chapter does not apply to any
wireline facilities. Any Personal Wireless Service provider must obtain a Master Use Permit or
Telecommunications Franchise pursuant to applicable law for the use of the Public Right-of-Way for any
Wireline Backhaul Facility, or any other wired facilities, such as fiber optic cable. The granting of a
permit pursuant to this Chapter is not a grant of a Master Use Permit or Telecommunications Franchise.
12.40.020 Definitions
For the purpose of this Chapter, the following terms shall have the meaning ascribed to them below:
A. “Applicable Law” shall mean all applicable federal, state, and local laws, codes, rules, regulations,
orders, and ordinances, as the same be amended or adopted from time to time.
B. “Applicant” shall mean any Person submitting an Application under this Chapter.
C. “Application” shall mean a Small Cell Facility Permit Application or a Modification Permit
Application.
D. “City” shall mean the City of Port Orchard, Washington.
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E. “Collocate” or “Collocation” shall mean the mounting or installation of equipment on an existing
Pole for the purpose of either transmitting or receiving, or both, radio frequency signals for
communications purposes.
F. “Days” shall be counted in calendar days unless otherwise specified. When the day, or the last day,
for taking any action or paying any fee falls on Saturday, Sunday, or a Federal holiday, the action
may be taken, or the fee paid, on the next succeeding secular or business day.
G. “Department” shall mean the Department of Public Works of the City.
H. “Director” shall mean the director of the Department.
I. “FCC” and “Commission” shall mean the Federal Communications Commission.
J. “Location” shall mean a geographic area no less than one-half square miles.
K. “Microcell” shall mean a wireless communication facility consisting of an antenna that is either:
1. four feet in height and with an area of not more than five hundred eighty square inches; or
2. if a tubular antenna, no more than four inches in diameter and no more than six feet in length.
L. “Minor Facility” shall mean a wireless communication facility consisting of up to three antennas,
each of which is either:
1. four feet in height and with an area of not more than five hundred eighty square inches; or
2. if a tubular antenna, no more than four inches in diameter and no more than six feet in length;
and the associated equipment cabinet that is six feet or less in height and no more than forty-
eight square feet in floor area.
M. “Permittee” shall mean a Person that has been granted a Small Cell Facility Permit or a Modification
Permit by the Department.
N. “Person” shall mean any individual, group, company, partnership, association, joint stock company,
trust, corporation, society, syndicate, club, business, or governmental entity. “Person” shall not
include the City.
O. “Personal Wireless Services” shall mean commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, as defined by federal laws and regulations.
P. “Pole” shall mean a utility pole that is used in whole or in part to facilitate telecommunications or
electric service, or a street light pole and capable of support Wireless Service Facilities.
Q. “Public Right-of-Way” shall mean any road, alley, street, avenue, arterial, bridge, highway, or other
publicly owned ground or place used or reserved for the free passage of vehicular and/or pedestrian
traffic or other services, including utilities.
R. “Small Cell Facility” shall mean a Wireless Facility that meets both of the following qualifications:
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1. each antenna is located inside an antenna enclosure of no more than three (3) 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
2. primary equipment enclosures are no larger than seventeen (17) cubic feet in volume. The
following associated equipment may be located outside the primary equipment enclosure and if
so located, are not included in the calculation of equipment volume: Electric meter,
concealment, telecomm demarcation box, ground-based enclosures, battery back-up power
systems, grounding equipment, power transfer switch, and cut-off switch.
Unless the context clearly provides otherwise, the term Small Cell Facility shall include a Small Cell
Facility, Microcell, Minor Facility, Small Cell Network, and Distributed Antenna System.
S. "Small Cell Network" shall mean a collection of interrelated small cell facilities designed to deliver
personal wireless services.
T. “Wireless Service Facility” shall mean facilities for the provision of wireless data and
telecommunications services, including commercial mobile services, commercial mobile data
services, unlicensed wireless services, and common carrier wireless exchange access services, as
defined by federal laws and regulations.
U. “Wireline Backhaul Facility” shall mean a facility used to transport communications data by wire
from wireless facility to a communications network.
12.40.030 Permitted Use
The siting of Small Cell Facilities on property within the Public Right-of-Way of the City shall be a
permitted use and permission to install such Small Cell Facilities shall be granted by permit subject to
the provisions of this Chapter. All other siting of Small Cell Facilities, including, but not limited to, the
installation of new Poles or wireline backhaul facilities, shall be subject to the applicable provisions of
the Port Orchard Municipal Code. Any Person seeking to install new Poles or wireline backhaul facilities
in any Public Right-of-Way must obtain a franchise from the City prior to any installations.
12.40.040 Small Cell Facilities Permit Process
A. Administration and Procedure: The director is authorized and directed to administer the provisions
of this chapter relating to Small Cell Facilities Permits.
B. Review Process: An Application submitted pursuant to this Chapter shall be reviewed as follows:
1. Submission of Application: Applicant will submit a complete application to the Department
along with the Application Fee;
2. Contents of a Counter Complete Application: Consistent with POMC 20.24.040, the following
materials shall be submitted to the City for a Small Cell Facilities Permit Application to be
deemed counter complete. The Director shall determine number of copies required:
a) A completed application form (including all supporting documents) signed by the Applicant;
b) date, name, address, telephone number and email of the Applicant identified in the
application;
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c) contact information, including the name, address, and phone number of an agent or
engineer affiliated with the Applicant and who will be acting in a supervisory capacity on
behalf of the Applicant,
d) a statement that the Applicant attests by written oath to the accuracy and completeness of
all information submitted in the application;
e) site plans, including a vicinity map, and showing public streets, boundaries, locations,
heights, and other physical dimensions of all Poles on which Applicant is proposing to attach
Small Cell Facilities. If all Poles are sufficiently near one another, a single site plan or
multiple sheets showing individual Poles may be submitted;
f) Traffic Control Plan, if the installation of the small cell facility will require work within the
traveled way;
g) Structural Engineering Analysis of existing poles to which a proposed Small Cell Facility
would be attached. See POMC 12.40.060(D);
h) permission statement from the pole owner to install facilities on such structure. See POMC
12.40.050(D);
i) a copy of a Certificate of Liability Insurance along with the Endorsement which names the
City of Port Orchard as an Additional Insured. See POMC 12.40.060(A-D) Insurance; and
j) in addition to the required number of paper copies, all materials to be submitted via an
approved method for electronic submission of files.
3. Counter-completeness: Applications may either be brought in person to the City, or
Applications may be mailed to the City for counter-complete review.
a) An Application is counter-complete if the Director finds that the Application purports and
appears to include the information required of permit application(s); provided, no effort
shall be made to evaluate the substantive adequacy of the information in the Application(s)
in the counter-complete review process. No effort shall be made to determine ownership of
land as part of the counter-complete review process.
b) The director shall make a counter-complete determination regarding an Application brought
in person to the City while the applicant is present. For Applications mailed to the City, the
counter-complete determination shall be made within two business days from the date of
receipt. If the City does not provide a counter-complete determination for a mailed
Application, the Application shall be deemed counter-complete as of the third day from
receipt.
c) If the Director decides the Application is counter-complete, then the Application may be
submitted and the appropriate fee shall be paid by the Applicant.
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4. If the Director decides the Application is not counter-complete, then the City shall reject and
return the Application and identify in writing what is needed to make the Application
counter-complete.
5. Technical completeness.
a) Within thirty (30) calendar days of receiving an Application, the Director shall determine
whether an Application is technically complete. An Application is technically complete for
purposes of this section when it meets the submission requirements of this chapter as well
as the submission requirements contained in other applicable sections of the code. This
determination of technical completeness shall be made when the Application is sufficient
for continued processing even though additional information may be required or project
modifications may be subsequently undertaken.
b) A determination of technical completeness shall not preclude the City from requesting
additional information or studies either at the time of the notice of completeness or at
some later time. Such new information may be required to establish whether the proposal
meets applicable Municipal Codes and regulations, whether additional environmental study
is required, or, more generally, when there are substantial changes in the proposed action.
c) The city may determine that a counter-complete Application is not technically complete
because the information submitted is not sufficient for further processing, is incomplete, or
is factually incorrect. If the Applicant receives a written determination from the City that an
Application is not technically complete, the Applicant shall have up to ninety (90) calendar
days to submit the necessary information to the city. Within ten (10) calendar days after an
applicant has submitted the requested additional information, the city shall determine
whether the application is technically complete.
d) If an Applicant either refuses in writing to submit additional information or does not submit
the required information within ninety (90) calendar days, the Application shall be
terminated.
e) If the Director does not provide written notification that an Application is technically
incomplete within the thirty (30) day period, the Application shall be deemed technically
complete for processing as of the thirty-first (31) calendar day following receipt of the
Application.
6. Review Period: The Department has ninety (90) days after the date a Small Cell Facility Permit
Application is filed to issue or deny a Small Cell Facility Permit pursuant to the Small Cell Facility
Permit Application. An application will be deemed counter complete if the Director finds that
the application purports and appears to include the information required pursuant to
subsection 12.40.040(B)(2) above; provided, no effort shall be made to evaluate the substantive
adequacy of the information in the application(s) in the counter complete review process.
C. Tolling of Review Period: In the event that the Application is not deemed technically complete, and
the Department has provided a written notice of incompleteness, then the ninety (90) day review
period shall be tolled pending the time between the notice and the submittal of information in
compliance with the notice(s). Applications shall also be tolled in the event that additional
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information is requested for an application previously determined to be technically complete. An
Applicant and the Department can mutually agree in writing to toll the ninety (90) day review period
at any time.
D. Extension Based on Number of Applications Received: If the Department receives applications
within a single seven-day period from one or more Applicants seeking approval of permits for more
than thirty (30) Small Cell Facilities, the Department may extend the 90-day review period of this
Chapter by an additional 30 days. If the Department elects to invoke this extension, it must inform in
writing any Applicant to whom the extension will be applied.
E. Moratoria Prohibited: The Department shall not establish any moratorium or any prohibition
thereof regarding the receiving and processing of any Applications.
F. Nondiscrimination: The Department must ensure that any Application processed under this Chapter
is performed on a nondiscriminatory basis.
12.40.050 Standards for Small Cell Facilities
The following are the Standards for Small Cell Facilities in the City.
A. Pole Design: An existing Pole may be replaced or added on to accommodate small cell antennas and
related equipment subject to the following requirements:
1. Replacement Pole: Replacement Poles shall match height, width, color, and material of the
original or adjacent poles. The height of any Replacement Pole may be altered only when minor
deviations up to the minimum additional height are needed to allow sufficient space for the
required clearance from electrical utility wires when required to accommodate antennae at the
top of a Pole or a pole extender, which shall be no greater than six (6) feet tall. To accommodate
concealed equipment and cabling, the pole base may deviate up to fifty percent (50%) of the
original pole width or thirty inches (30”), whichever is greater. Replacement Poles shall be
located as close as possible to the existing Pole, and the replaced Pole shall be removed.
2. Existing Pole: The height of any existing Pole shall not be altered, except when minor deviations
up to the minimum additional height are needed to allow sufficient space for the required
clearance from electrical utility wires when required to accommodate antennae at the top of a
pole or a pole extender, which shall be no greater than six (6) feet tall.
3. Internal Cabling: Where technically feasible, all equipment and cabling shall be internal to the
replacement Pole.
4. Equipment Concealed: Where technically feasible, all antennas and equipment shall be fully
concealed within a Pole. If such concealment is not technically feasible, an antenna shall be
camouflaged to appear to be an integrated component of a Pole. Any equipment that cannot be
concealed within a Pole or undergrounded consistent with Port Orchard Municipal Code Ch.
12.16 due to technical infeasibility shall be camouflaged to appear to be an integrated
component of a Pole. Any equipment attached to a Pole pursuant to this subsection shall be
contained within the smallest possible enclosure and attached to the Pole in a manner
consistent with this Chapter.
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5. Flush Mounting and Pole-Top Antennas: When permitted, a Small Cell Facility shall, to the full
extent permitted under the state electrical code and the Pole owner’s requirements, be flush-
mounted on a Pole, which means mounting directly to the Pole with no gap other than that
which may be required for screws, bolts, or other fasteners. Cannisters containing an antenna
attached to the top of a Pole shall not exceed the diameter of the Pole. If, due to technical
feasibility, a cannister must exceed the diameter of a Pole, the cannister shall not have a
diameter that is more than fifty percent (50%) greater than the diameter of the Pole.
6. Material and Color: Where internal cabling or equipment concealing is demonstrated not to be
technically feasible, a Small Cell Facility shall be made to match the color of the Pole to the
maximum extent possible and shall be non-reflective.
7. Antenna Design: Where an enclosure, such as a cannister, is proposed to house an antenna, the
antenna shall be located in an enclosure of no more than three (3) cubic feet in volume, or in
case of an antenna that has exposed elements, the antenna and all of its exposed elements
could fit within an enclosure of no more than three (3) cubic feet. No more than four (4)
antennas are permitted on a single pole and with a total volume not to exceed twelve (12) cubic
feet.
8. No Illumination: Small Cell Facilities shall not be illuminated.
9. Generators and Backup Battery: Generators are not permitted for Small Cell Facilities. A battery
backup may be permitted provided it is concealed or camouflaged, as applicable, in a manner
consistent with this Chapter.
B. Ground-Mounted Small Cell Facilities: To allow full use of the Public Right-of-Way by pedestrians,
bicycles and other users, all ground-mounted equipment shall be undergrounded consistent with
Municipal Code, including, but not limited to, Port Orchard Municipal Code Ch. 12.16, and in a vault
meeting the City’s construction standards or concealed in the base of a Pole and comply with the
Americans with Disabilities Act (ADA), City construction standards, and State and federal regulations
in order to provide clear and safe passage within the Public Right-of-Way.
C. Replacement Poles: Replacement poles shall match the height, width, color (to the extent possible),
and material of the original or adjacent poles. The City may approve minor deviations up to the
minimum additional height needed to allow sufficient space for the required clearance from
electrical wires when required to accommodate antennae and may also approve minor deviations
up to fifty percent (50%) of the pole width or thirty inches (30”), whichever is greater, when housing
equipment within the pole base. Preferred Replacement poles shall be located as close as possible
to the existing pole, and the replaced pole shall be removed.
D. Permission: All installations of Small Cell Facilities shall have permission from the Pole owner to
install facilities on such structure. Nothing in this Section affects the need for an entity seeking to
place a Small Cell Facility on a Pole that is not owned by the City to obtain from the owner of the
Pole any necessary authority to place the Small Cell Facility, nor shall any Section of this Chapter be
deemed to affect the rates, terms, and conditions for access to or placement of a Small Cell Facility
on a Pole not owned by the City. This Section does not affect any existing agreement between the
Department and an entity concerning the placement of Small Cell Facilities on City-owned Poles.
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12.40.060 Small Cell Facility Permit Applications
A. Application Form: The Director shall develop an Application Form for a Small Cell Facility Permit and
a Modification Permit. To the extent possible, the Director shall allow for Applications to be
consolidated pursuant to RCW 80.36.375(1)(c). Each Applicant must submit a complete Application
for each respective permit.
B. Consolidated Applications: A Personal Wireless Services provider may apply for up to [INSERT
NUMBER] Small Cell Facility Permits for a Small Cell Network in a common geographical area of the
City in a single Consolidated Application. The Department will review the Consolidated Application
as allowed by this Chapter. A Consolidated Application may be bifurcated, if necessary, to allow a
portion of the Small Cell Facility Permits to be approved or denied. The Small Cell Facility Permits
denied in a Consolidated Application shall be subject to a single Appeal.
C. Information Not Required: The Department shall not require an Applicant to provide any
information that:
1. has previously been provided to the Department by the Applicant in an Application, if the
Applicant provides specific reference to the previous Application containing the information
sought by the Department; and
2. is not reasonably necessary to review an Application for compliance with generally applicable
and reasonable health, safety, and welfare regulations, and to demonstrate compliance with
applicable Federal Communications Commission regulations governing audio frequency
exposure, or other information required by this Section.
D. Pole Inspection: Prior to submitting an Application to the Department, an Applicant shall inspect
any Pole to which a proposed Small Cell Facility would be attached and determine, based on a
structural engineering analysis by a Washington registered professional engineer, the suitability of
the Pole for the Applicant’s purposes. The structural engineering analysis shall be submitted to the
Department and shall certify that a Pole can reasonably support a proposed Small Cell Facility
considering the conditions of the street, the anticipated hazards from traffic to be encountered at
the proposed Location, and any wind, snow, ice, or other conditions that may be reasonably
anticipated at the proposed Location.
12.40.070 Conditions and Authorizations
A. General Conditions of Approval: In processing and approving a Small Cell Facility Permit or
Modification Permit, the Department shall condition its approval on compliance with:
1. generally applicable and reasonable health, safety, and welfare regulations consistent with the
City’s Public Right-of-Way management;
2. compliance with all applicable Municipal Codes, Standards, and Ordinances, including, but not
limited to, compliance with regulations regarding wetlands, critical areas, and any associated
buffer areas not in the Public Right-of-Way;
3. prior to commencing any construction, operation, or maintenance of a Small Cell Facility
pursuant to the Small Cell Facility Permit or Modification Permit, obtaining any necessary
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authorization, including, but not limited to, a Determination of Nonsignificance by an
appropriate authority, pursuant to Applicable Law, including, but not limited to, the State
Environmental Policy Act (SEPA), RCW Ch. 43.21C, WAC Ch. 197-11, and POMC Ch. 20.160.
4. compliance with Permittee’s Application. Any modification to the Small Cell Facilities following
the approval of a Small Facilities Permit requires the submission of a new Application;
5. reasonable accommodations for decorative Poles;
6. any reasonable restocking, replacement, or relocation requirements, within six (6) months of
receiving a notice to relocate, when a Replacement Pole is placed in the Public Right-of-Way;
7. construction of the proposed Small Cell Facility within six (6) months from the date the Small
Cell Facility Permit was issued;
8. obtaining a Master Permit, Telecommunications Franchise, or any other applicable authorization
for the use of the Public Right-of-Way for the construction of Wireline Backhaul Facilities, new
Poles, or any other wired facilities; and
9. compliance with all Applicable Law.
B. Examples of Generally Applicable and Reasonable Health, Safety, and Welfare Regulations:
Generally applicable and reasonable health, safety, and welfare regulations for purposes of this
Section include, without limitation, the following:
1. a structural engineering analysis by a Washington registered professional engineer certifying
that a Pole can reasonably support the proposed Small Cell Facility considering the conditions of
the street, the anticipated hazards from traffic to be encountered at the proposed Location, and
any wind, snow, ice, or other conditions that may be reasonably anticipated at the proposed
Location;
2. a determination by the Department that, based upon reasonable engineering judgment, a
proposed Small Cell Facility is of excessive size or weight or would otherwise subject a Pole to an
unacceptable level of stress;
3. a determination by the Department that, based upon reasonable engineering judgment, a
proposed Small Cell Facility would cause undue harm to the reliability or integrity of the City’s
electric infrastructure or would likely violate generally applicable electrical or engineering
principles;
4. a determination by the Department that a proposed Small Cell Facility presents an unreasonable
safety hazard as specifically and reasonably identified by the Department;
5. a determination by the Department that a proposed Small Cell Facility impairs the City’s ability
to operate or maintain the Public Right-of-Way; or
6. a determination by the Department that a proposed Small Cell Facility cannot be placed due to
insufficient capacity or if such placement is in violation of the National Electric Safety Code or
other Applicable Law, and the City infrastructure cannot be reasonably modified or enlarged at
the expense of the Applicant.
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C. Authorized Use: An approval of a Small Cell Facility Permit under this Section authorizes the
attachment and operation of a Small Cell Facility to provide Personal Wireless Services and shall not
be construed to confer authorization to:
1. provide any service other than Personal Wireless Services; or
2. install, place, maintain, or operate a Wireline Backhaul Facility in the Public Right-of-Way.
D. Unauthorized Use Prohibited: No Person shall construct, install, or maintain a Small Cell Facility in
the Public Right-of-Way without obtaining a Small Cell Facility Permit from the Department prior to
commencing construction, installation, or maintenance of the Small Cell Facility.
1. If an unauthorized Small Cell Facility is discovered in the Public Right-of-Way, the Department
shall provide written notice to the owner of the unauthorized Small Cell Facility within three (3)
days of discovery of the unauthorized Small Cell Facility. If an owner of an unauthorized Small
Cell Facility cannot be reasonably identified, the Department need not provide any written
notice.
2. The Department may remove the unauthorized Small Cell Facility without incurring liability to
the owner of the Small Cell Facility and at the owner’s sole expense provided, however, that if
written notice must be provided to the owner of the Small Cell Facility pursuant to
12.40.070(D)(1), an unauthorized Small Cell Facility may be removed no sooner than three (3)
days after providing written notice of the Department’s discovery of the unauthorized Small Cell
Facility to the owner.
E. Placement: In approving a Small Cell Facility Permit, the Department shall not require the placement
of a Small Cell Facility on any Pole other than the Pole proposed in the Small Cell Facility Permit
Application.
1. The Department shall not limit the placement of Small Cell Facilities, either by minimum
separation distances between Small Cell Facilities or maximum height limitations, except that
each Pole installed in the Public Right-of-Way shall comply with any height requirements of this
Chapter for new or replacement Poles in the Public Right-of-Way, subject to local zoning
regulations, and may be subject to separation requirements in relation to other Poles.
2. Notwithstanding the preceding paragraph, a Replacement Pole that replaces an existing Pole
that is higher than fifty (50) feet above ground level may be placed at the height of the existing
Pole, unless the Department agrees to a greater height, subject to local zoning regulations.
F. Deposit Required: Each Permittee shall submit and maintain with the Department a bond, cash
deposit or other security acceptable to the Department securing the faithful performance of the
obligations of the Permittee and its agents under any and all Small Cell Facility Permits issued to the
Permittee under this Chapter. This deposit shall be in the sum of [INSERT AMOUNT] in favor of the
“Department of Public Works, City of Port Orchard.” If, in accordance with this Chapter, the
Department deducts any amounts from such a deposit, the Permittee must restore the full amount
of the deposit prior to the Department’s issuance of a subsequent Small Cell Facility Permit. The
Department shall return the deposit to the Permittee should the Permittee cease to operate any
Small Cell Facilities in the Public Right-of-Way.
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G. Attachment Agreement: The Department shall, as condition of issuance of a Small Cell Facility
Permit, require a Permittee to enter into an agreement between the Permittee and the City to
attach a Small Cell Facility on any public property.
H. Written Notice Required: In approving a Small Cell Facility Permit Application, the Department shall
provide written notice to the Applicant of its approval and any conditions thereof. A Small Cell
Facility Permit shall not be issued prior to the complete payment of all permit fees. Once a written
notice of approval is provided, the applicant shall have 180 days to pick up and sign the approved
permit. Permits not picked up and signed for within 180 days shall be deemed abandoned and no
longer valid.
12.40.080 Denial or Revocation of a Small Cell Facility Permit:
A. Permit Denial: The Department may deny any Small Cell Facility Permit or Modification Permit if the
Applicant does not comply with all provisions of this Chapter to the extent consistent with law, or if
the Department determines that the denial is necessary to protect the health, safety, and welfare,
or when necessary to protect the Public Right-of-Way and its current use.
B. Permit Revocation: The Department may revoke a Small Cell Facility Permit or Modification Permit,
with or without refund, in the event of a substantial breach of the terms and conditions of any
statute, ordinance, rule, or regulation, or any material condition of the Small Cell Facility Permit or
Modification Permit. A substantial breach includes, but is not limited to, the following:
1. a material violation of a provision of a Small Cell Facility Permit or a Modification Permit,
including, but not limited to, any conditions upon which the Small Cell Facility Permit or
Modification Permit was issued;
2. an evasion or attempt to evade any material provision of a Small Cell Facility Permit, or a
Modification Permit; or the perpetration or attempt to perpetrate any fraud or deceit upon the
City or its citizens;
3. a material misrepresentation of fact in a Small Cell Facility Permit Application or Modification
Permit Application;
4. a failure to complete installation, construction, or maintenance of a Small Cell Facility or Pole in
a timely manner, unless the failure is due to reasons beyond the Permittee’s control; or
5. a failure to correct, in a timely manner, installation, construction, or maintenance of a Small Cell
Facility that does not conform to applicable standards, conditions, or codes, upon inspection
and notification by the Department of the faulty condition.
B. Prohibited Revocation: The Department shall not unreasonably withhold approval of or
unreasonably revoke a Small Cell Facility Permit or Modification Permit.
C. Written Notice Required: Any denial or revocation of a Small Cell Facility Permit or a Modification
Permit shall be made in writing and shall document the basis for the denial. The Department shall
notify the Applicant or Permittee in writing within three (3) days of a decision to deny or revoke a
Small Cell Facility Permit or a Modification Permit. If a Small Cell Facility Permit is denied, the
Applicant may cure any deficiencies identified by the Department and resubmit the Small Cell
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Facility Permit Application. If the Applicant resubmits the application within thirty (30) days of
receiving written notice of the denial, it shall not be charged an additional filing or processing fee.
12.40.090 Term and Renewal of a Small Cell Facility Permit
A. Term: A Small Cell Facility Permit shall have a term of ten (10) years commencing on the date a
Small Cell Facility Permit is issued.
B. Renewal Permitted: A Permittee seeking to renew a Small Cell Facility Permit may, not later than six
(6) months prior to the expiration of the Small Cell Facility Permit, file an application for renewal
with the Department. To be eligible for renewal, Permittee must be in compliance with its Permit
and this Chapter. A Permittee may submit a Consolidated Application for the renewal of multiple
Small Cell Facility Permits.
12.40.100 Small Cell Facility Modification Permit
A. Modification Permit Required: A Permittee seeking to modify or replace a Small Cell Facility such
that the resulting Small Cell Facility will not be substantially similar to or will be larger in size, weight,
height, or wind or structural loading than the existing Small Cell Facility must obtain a Modification
Permit prior to the commencement of any construction or installation causing an existing Small Cell
Facility to be modified or replaced as such.
B. Authorized Uses: An approval of a Modification Permit Application under this Section authorizes the
modification or replacement of a Small Cell Facility consistent with the requirements in this Section.
C. Department Rules: The Department shall review the Modification Permit Application consistent
with the review process described by this Chapter except that the Department shall issue or deny a
Modification Permit pursuant to a Modification Permit Application within sixty (60) days after
receiving the Modification Permit Application. The Department may establish written rules or
standards that establish a shorter review period of a Modification Permit Application that is
consistent with the requirements of Section 6409(a) of the Middle Class Tax Relief and Job Creation
Act of 2012, codified at 47 U.S.C. § 1455(a), as may be amended from time to time, and with any
FCC decision addressing that section or any FCC regulation implementing that section.
12.40.110 Construction, Installation, and Maintenance a Small Cell Facility
A. Compliance with Applicable Law: To the extent this requirement is not preempted or otherwise
legally unenforceable, a Permittee shall comply with all Applicable Law and applicable industry
standards.
B. Prevent Interference: A Permittee shall construct, install, maintain, and continuously operate an
approved Small Cell Facility to prevent interference with the other facilities in the Public Right-of-
Way and the operation thereof. With appropriate permissions from the Department, a Permittee
shall, as is necessary for the safe and reliable operation, use, and maintenance of the Permittee’s
Small Cell Facility, maintain trees as prescribed by the standards promulgated by the Department.
C. Other Rights Not Affected: A Permittee shall not construe a contract, permit, correspondence, or
other communication as affecting a right, privilege, or duty previously conferred or imposed by the
Department to or on another Person.
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D. Restoration: A Permittee, after any excavation of the Public Right-of-Way, shall provide for
restoration of the affected Public Right-of-Way and surrounding areas, including the pavement and
its foundation, to the same condition that existed before the excavation. If a Permittee fails to
adequately restore the Public Right-of-Way within a specified date, the Department may:
1. itself restore the Public Right-of-Way and recover from the Permittee the reasonable costs of
the surface restoration; or
2. recover from the Permittee a degradation fee associated with a decrease in the useful life of the
Public Right-of-Way caused by the excavation.
A Permittee that disturbs uncultivated sod in the excavation or obstruction of the Public Right-of-
Way shall plant grasses that are native to Washington and, wherever practicable, that are of the
local eco-type, as part of the restoration required under this Section, unless the owner of the real
property over which the Public Right-of-Way traverses objects. In restoring the Public Right-of-Way,
the Permittee shall consult with the Department of Natural Resources regarding the species of
native grasses that conform to the requirements of this paragraph.
E. Permittee’s Liability: A Permittee is solely responsible for the risk and expense of construction,
installation, and maintenance of the Permittee’s Small Cell Facility. The City neither warrants nor
represents that any area within the City’s Public Right-of-Way is suitable placement of any Wireless
Facilities. A Permittee shall accept the City’s Public Right-of-Way “as is” and “where is” and assumes
all risks related to any use. The City is not liable for damage to Wireless Facilities due to an event of
damage to a Pole or Public Right-of-Way.
F. Notice Required: A Permittee upon or within fourteen (14) calendar days after transfer, assignment,
conveyance, or sublet of an attachment that changes the permit and/or billing entity or ownership
responsibilities shall provide written notification to the Department.
12.40.120 Inspection of a Small Cell Facility
A. Inspection Permitted: The Department may inspect, at any time, the construction or installation of a
Permittee’s Small Cell Facilities. The Department shall determine during an inspection whether:
1. all construction or inspection activities are in accordance with the requirements of the
Permittee’s Small Cell Facility Permit and other Applicable Law; and
2. the permitted Small Cell Facility is in accordance with the requirements of the Permittee’s Small
Cell Facility Permit and other Applicable Law.
B. Suspension of Activities: During an inspection, if the Department determines that a Permittee has
violated this Section, the Department may suspend the Permittee’s construction or installation
activities. The Department shall provide written notice of any suspension to a Permittee within
three (3) days of discovering the Permittee’s alleged violation. A suspension under this Paragraph is
effective until a Permittee corrects the alleged violation, at the Permittee’s sole expense. A
Permittee may appeal any suspension under this paragraph to the Department.
12.40.130 Abandonment of an Authorized Small Cell Facility
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A. Maintenance Required: Any Small Cell Facility constructed or installed in the Public Right-of-Way
pursuant to a Small Cell Facility Permit issued under this Chapter must be properly maintained and
used to provide Personal Wireless Services.
B. Abandoned Small Cell Facilities: Where either a Small Cell Facility is not properly maintained or is
no longer being used to provide Personal Wireless Services, the Department may designate the
Small Cell Facility as abandoned. The Department shall provide written notice to a Permittee within
ten (10) days of the Permittee’s Small Cell Facility being designated as abandoned.
12.40.140 Removal of an Authorized Small Cell Facility
A. Removal Permitted: The Department may remove or require a Permittee to remove any authorized
Small Cell Facilities if:
1. the term of a Small Cell Facility Permit expires;
2. the Small Cell Facility is designated as abandoned; or
3. a Small Cell Facility Permit or Modification Permit is revoked under this Chapter.
B. Permittee Notice: The Department shall provide written notice to the Permittee at least thirty (30)
days prior to removing or requiring a Permittee to remove an authorized Small Cell Facility.
12.40.150 Appeals
An Applicant may appeal a Department decision to deny or suspend a Small Cell Facility Permit
Application, a Consolidated Application, a Modification Permit Application, the revocation of a Small Cell
Facility Permit or Modification Permit, or impose fees the Applicant does not believe are in conformance
with this Chapter, to the Director, who shall submit the Appeal to The Hearing Examiner. Upon such
appeal, the Hearing Examiner shall determine the hearing process and whether the denial was correct
under the provisions of this Chapter.
12.40.160 Insurance
A. Minimum Coverage: The Department shall require that each Permittee maintain in full force and
effect, throughout the term of a Small Cell Facility Permit, an insurance policy or policies issued by
an insurance company or companies satisfactory to the City's Risk Manager. Such policy or policies
shall, at a minimum, afford insurance covering all of the Permittee's operations, vehicles, and
employees, as follows:
1. workers' compensation, in statutory amounts, with employers' liability limits not less than one
million dollars ($1,000,000) each accident, injury, or illness;
2. commercial general liability insurance with limits not less than one million dollars ($1,000,000)
each occurrence combined single limit for bodily injury and property damage, including
contractual liability, personal injury, products and completed operations;
3. commercial automobile liability insurance with limits not less than one million dollars
($1,000,000) each occurrence combined single limit for bodily injury and property damage,
including owned, non-owned and hired auto coverage, as applicable; and
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4. contractors' pollution liability insurance, on an occurrence form, with limits not less than one
million dollars ($1,000,000) each occurrence combined single limit for bodily injury and property
damage and any deductible not to exceed twenty-five thousand dollars ($25,000) each
occurrence.
B. Other Insurance Requirements:
1. Said policy or policies shall include the City and its officers and employees jointly and severally
as additional insureds, shall apply as primary insurance, shall stipulate that no other insurance
effected by the City will be called on to contribute to a loss covered thereunder, and shall
provide for severability of interests.
2. Said policy or policies shall provide that an act or omission of one insured, which would void or
otherwise reduce coverage, shall not reduce or void the coverage as to any other insured. Said
policy or policies shall afford full coverage for any claims based on acts, omissions, injury, or
damage which occurred or arose, or the onset of which occurred or arose, in whole or in part,
during the policy period.
3. Said policy or policies shall be endorsed to provide thirty (30) calendar days advance written
notice of cancellation or any material change to the Department.
4. Should any of the required insurance be provided under a claims-made form, a Permittee shall
maintain such coverage continuously throughout the term of a Small Cell Facility Permit, and,
without lapse, for a period of three (3) years beyond the expiration or termination of the Small
Cell Facility Permit, to the effect that, should occurrences during the term of the Small Cell
Facility Permit give rise to claims made after expiration or termination of the Small Cell Facility
Permit, such claims shall be covered by such claims-made policies.
5. Should any of the required insurance be provided under a form of coverage that includes a
general annual aggregate limit or provides that claims investigation or legal defense costs be
included in such general annual aggregate limit, such general aggregate limit shall be double the
occurrence or claims limits specified herein.
C. Indemnity Obligation: Such insurance shall in no way relieve or decrease a Permittee’s or its agent’s
obligation to indemnify the City pursuant to this Chapter.
D. Proof of Insurance: Before the Department will issue a Small Cell Facility Permit, an Applicant shall
furnish to the Department certificates of insurance and additional insured policy endorsements with
insurers that are authorized to do business in the State of Washington and that are satisfactory to
the Department evidencing all coverages set forth herein.
12.40.170 Indemnification and Defense of City
A. Indemnification of City: As a condition of a Small Cell Facility Permit or Modification Permit, each
Permittee agrees on its behalf and on behalf of its agents, successors, or assigns, to indemnify,
defend, protect, and hold harmless the City from and against any and all claims of any kind arising
against the City as a result of the issuance of a Small Cell Facility Permit or Modification Permit
including, but not limited to, a claim allegedly arising directly or indirectly from the following:
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1. any act, omission, or negligence of a Permittee or its any agents, successors, or assigns while
engaged in the permitting, construction, installation, or maintenance of any Small Cell Facility
authorized by a Small Cell Facility Permit or Modification Permit, or while in or about the Public
Right-of-Way that are subject to the Small Cell Facility Permit or Modification Permit for any
reason connected in any way whatsoever with the performance of the work authorized by the
Small Cell Facility Permit or Modification Permit, or allegedly resulting directly or indirectly from
the permitting, construction, installation, or maintenance of any Small Cell Facility authorized
under the Small Cell Facility Permit or Modification Permit;
2. any accident, damage, death, or injury to any of a Permittee's contractors or subcontractors, or
any officers, agents, or employees of either of them, while engaged in the performance of the
construction, installation, or maintenance of any Small Cell Facility authorized by a Small Cell
Facility Permit or Modification Permit, or while in or about the Public Right-of-Way that are
subject to the Small Cell Facility Permit or Modification Permit, for any reason connected with
the performance of the work authorized by the Small Cell Facility Permit or Modification Permit,
including from exposure to radio frequency emissions;
3. any accident, damage, death, or injury to any Person or accident, damage, or injury to any real
or personal property in, upon, or in any way allegedly connected with the construction,
installation, or maintenance of any Small Cell Facility authorized by a Small Cell Facility Permit or
Modification Permit, or while in or about the Public Right-of-Way that are subject to the Small
Cell Facility Permit or Modification Permit, from any causes or claims arising at any time,
including any causes or claims arising from exposure to radio frequency emissions; and
4. any release or discharge, or threatened release or discharge, of any hazardous material caused
or allowed by a Permittee or its agents about, in, on, or under the Public Right-of-Way.
B. Defense of City: Each Permittee agrees that, upon the request of the Department, the Permittee, at
no cost or expense to the City, shall indemnify, defend, and hold harmless the City against any
claims as set forth in Subsection 12.40.180(A) (Indemnification of City) above, regardless of the
alleged negligence of the City or any other party, except only for claims resulting directly from the
sole negligence or willful misconduct of the City. Each Permittee acknowledges and agrees that it
has an immediate and independent obligation to defend the City from any claims that actually or
potentially fall within the indemnity provision, even if the allegations are or may be groundless,
false, or fraudulent, which obligation arises at the time such claim is tendered to the Permittee or its
agent by the City and continues at all times thereafter. Each Permittee further agrees that the City
shall have a cause of action for indemnity against the Permittee for any costs the City may be
required to pay as a result of defending or satisfying any claims that arise from or in connection with
a Small Cell Facility Permit, except only for claims resulting directly from the sole negligence or
willful misconduct of the City. Each Permittee further agrees that the indemnification obligations
assumed under a Small Cell Facility Permit shall survive its expiration or completion of installation of
any Small Cell Facility authorized by the Small Cell Facility Permit.
C. Additional Requirements: The Department may specify in a Small Cell Facility Permit such additional
indemnification requirements as are necessary to protect the City from risks of liability associated
with the Permittee's construction, installation, and maintenance of a Small Cell Facility.
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12.40.180 Fees and Costs
A. Application Fees: The Department shall charge an Application Fee for the review of a Small Cell
Facility Permit Application, an application for renewal of a Small Cell Facility Permit, a Consolidated
Application, and a Modification Permit Application. The purpose of these fees is to enable the
Department to recover its costs related to reviewing the application. These Application Fees shall be
listed in the City’s Fee Schedule.
B. Inspection Fees: The Department shall charge fees for the inspection of a permitted Small Cell
Facility. The purpose of these fees is to enable the Department to recover their costs related to
inspecting a permitted Small Cell Facility or Pole. The Inspection Fee shall be listed in the City’s Fee
Schedule.
C. Discretion to Require Additional Fees: In instances where the review of an Application is or will be
unusually costly to the Department, the Director, in his or her discretion, may, after consulting with
other applicable City departments, agencies, boards, or commissions, require an Applicant to pay a
sum in excess of the other fee amounts charged pursuant to this Section. This additional sum shall
be sufficient to recover actual costs incurred by the Department and/or other City departments,
agencies, boards, or commissions, in connection with an Application and shall be charged on a time
and materials basis. Whenever additional fees are charged, the Director, upon request, shall provide
in writing the basis for the additional fees and an estimate of the additional fees.
D. Reimbursement of City Costs: The Department may determine that it requires the services of an
expert in order to evaluate an Application. In such case, the Department shall not approve any
Application unless the Applicant agrees to reimburse the Department for the reasonable costs
incurred for the services of a technical expert.
12.40.190 Severability
If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this Chapter or any part
thereof is for any reason held to be unconstitutional, invalid, or ineffective by any court of competent
jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this
Chapter or any part thereof.
12.40.200 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 Cell Facility which 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 radio frequency (RF) radiation concerns.
B. Small Cell 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 have the effect of prohibiting Personal Wireless Services within the City.
C. Small Cell Facilities installed pursuant to a Small Cell Facilities Permit or Modification Permit may not
be expanded pursuant to an “eligible facilities request,” as that term is defined in federal law.
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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 on July 2, 2018.
PASSED by the City Council of the City of Port Orchard this 22nd day of May, 2018.
Robert Putaansuu, Mayor
AUTHENTICATED:
Brandy Rinearson, MMC, City Clerk
APPROVED AS TO FORM:
____________________________________
City Attorney, Sharon Cates
PUBLISHED:
EFFECTIVE DATE:
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City of Port Orchard
Work Study Session Executive Summary
Issue Title: West Sound Utility District Franchise Agreement
Meeting Date: May 15, 2018
Time Required: 20 Minutes
Attendees: N/A
Action Requested At This Meeting: Discuss the West Sound Utility District Franchise
agreement and provide feedback and direction to staff.
Issue: Determine if the City Council is interested in a Franchise agreement with WSUD.
Background: Staff and legal counsel have been working with WSUD on a franchise
agreement allowing them to work in the City’s ROW for utility services in certain areas.
Alternatives: Not allow a franchise agreement and require ROW permit for each work.
Recommendation: Staff recommends Council discuss the draft franchise agreement and
provide direction to staff.
Relationship to Comprehensive Plan: None.
Attachments: Franchise Agreement.
Follow-up Notes & Outcomes:
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ORDINANCE NO. _______
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
GRANTING THE WEST SOUND UTILITY DISTRICT, A WASHINGTON
SPECIAL PURPOSE DISTRICT, ITS SUCCESSORS AND ASSIGNS, THE
RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE TO SET, ERECT,
LAY, CONSTRUCT, EXTEND, SUPPORT, ATTACH AND CONNECT
FACILITIES BETWEEN, AND TO MAINTAIN, REPAIR, REPLACE,
ENLARGE, OPERATE AND USE FACILITIES IN, UPON, OVER,
UNDER, ALONG, ACROSS AND THROUGH THE FRANCHISE AREA
FOR PURPOSES OF TRANSMISSION, DISTRIBUTION AND SALE OF
WATER AND SEWER SERVICES.
WHEREAS, the West Sound Utility District (hereafter “WSUD”) has historically
provided water and sewer services to the City of Port Orchard (hereafter the “City”); and
WHEREAS, the parties have concluded that it is in the interests of the City and WSUD
to enter into a franchise agreement to establish the terms and conditions under which such
services will continue to be provided; and
WHEREAS, this Ordinance will establish said franchise agreement with WSUD and will
benefit the City; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON,
DO ORDAIN AS FOLLOWS:
SECTION 1. DEFINITIONS.
1.1 Where used in this franchise agreement (“Franchise” or “Agreement”) the
following terms shall mean:
1.1.1 “City” or “Port Orchard” means the City of Port Orchard, a code city
organized and existing under RCW Title 35A, and a municipal corporation of the State of
Washington, and its respective successors and assigns.
1.1.2 “City street” and “rights-of-way” shall mean “Street” and “Right-of-way”
as those terms are defined by the Port Orchard Municipal Code Section 12.24.210,
located within the area described in the attached Exhibit A.
1.1.3 “Construct” or “Construction” shall mean placing, removing, replacing,
adding new, and repairing Facilities and may include, but is not limited to, digging and/or
excavating for the purposes of placing, removing, replacing adding new, and repairing
Facilities.
1.1.4 “Council” means the Port Orchard City Council, acting in its official
capacity.
1.1.5 “Director” means the Port Orchard Public Works Director.
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1.1.6 “Facilities” means, collectively, any and all (i) tanks, meters, pipes, mains,
services, valves, blow-offs, vaults, fire hydrants, risers, manholes, pressure reducing
valves (“PRVs”), pump stations, meter stations, lift stations and lines; and (ii) any and all
other equipment, appliances, attachments, appurtenances and other items necessary,
convenient, or in any way appertaining to any and all of the foregoing, whether the same
be located over or under ground.
1.1.7 “Franchise” means the grant of rights, privileges, authority, terms, and
conditions embodied in this Ordinance.
1.1.8 “Franchise Area” means any, every and all right-of-way for public roads,
streets, avenues, alleys, highways and other public ways of the City as now laid out,
platted, dedicated or improved in WSUD’s service area within the present corporate
boundaries of the City. For purposes of this definition, right-of-way includes property
owned by the City in fee and used for public roads and other public ways of the City.
1.1.9 “Grantee” and “WSUD” mean the West Sound Utility District, a
municipal corporation organized and existing under Title 57 RCW, its successors and
those assignees approved pursuant to the requirements of this Franchise.
1.1.10 “Maintenance” or “Maintain” means examining, testing, inspecting,
repairing, maintaining, and replacing the Facilities or any part thereof as required or as
necessary for safe operation.
1.1.11 “Operate” or “Operations” means the use of WSUD Facilities for the
transmission, distribution, handling, and sale of water and sewer services within and
through the Franchise Area.
1.1.12 “Ordinance” means this Ordinance No. _____, which sets forth the terms
and conditions of this Franchise.
1.1.13 “Other Governing Body” means any public official or other public board
or body which may have the power and jurisdiction to permit or regulate the installation
and maintenance of utilities and other facilities in, under, over, across, and along any of
the City street rights-of-way described in Exhibit A.
1.1.14 “Public right-of-way improvement” means a City-funded capital
improvement to the public right-of-way.
1.1.15 “Relocation” means relocation, replacement, or extension of WSUD
Facilities within the Franchise Area as provided for in Section 4 herein unless otherwise
noted.
1.1.16 “Utility” means either the Grantee or, depending on the context, to any
other person, firm, or corporation, public or private, which may hold a franchise to
maintain and operate similar facilities in, under, over, across and along any of the City
streets or rights-of-way described in Exhibit A.
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SECTION 2. FACILITIES WITHIN THE FRANCHISE AREA.
2.1 Franchise. The Port Orchard City Council, having considered the interests
proposed and advanced, and finding that the granting of a franchise is in the public interest, does
hereby grant to WSUD, the Grantee, the right, privilege, authority and franchise to construct,
support, attach and connect Facilities between, maintain, repair, replace, enlarge, operate and use
Facilities in, upon, over, under, along, across and through the Franchise Area for purposes of its
water and sewer utility functions as defined in Title 57 RCW.
2.2 Term. This Franchise is granted subject to all of the terms and conditions
contained within this Agreement and shall expire in approximately twenty (20) years; more
specifically, on December 31, 2037.
2.3 Permission Required to Enter onto other City Property. Nothing contained in this
Ordinance is to be construed as granting permission to WSUD to go upon any other public place
other than those types of public places specifically designated as the Franchise Area in this
Ordinance. Permission to go upon any other property owned or controlled by the City must be
sought on a case-by-case basis from the City.
2.4 Compliance with Laws and Regulations. At all times during the term of this
Franchise, WSUD shall fully comply with all applicable federal, state, and local laws and
regulations.
2.5 Property Outside the Franchise Area. This Franchise shall not convey any right to
WSUD to install its Facilities on, under, over or across, or to otherwise use, any City-owned or
leased properties of any kind that are located outside the Franchise Area. Further, this Franchise
shall not govern or apply to Facilities located on WSUD-owned or leased properties or
easements (whether inside or outside of the Franchise Area, whether granted by a private or
public entity, and whether now existing or hereafter acquired) and such Facilities are not, and
will not be deemed to be, located pursuant to rights derived from this Franchise or pursuant to
rights otherwise granted by the City.
SECTION 3. NONINTERFERENCE WITH FACILITIES.
3.1 WSUD’s Facilities shall be located, relocated and maintained within the
Franchise Area so as not to unreasonably interfere with the free passage of pedestrian and
vehicular traffic, and ingress or egress to or from the abutting property, and in accordance with
all applicable federal and state laws, rules and regulations and all applicable local government
laws, rules and regulations. WSUD shall exercise its rights within the Franchise Area in
accordance with applicable City codes and ordinances governing use and occupancy of the
Franchise Area; provided, however, in the event of any conflict or inconsistency of such codes
and ordinances with the terms and conditions of this Franchise, the terms and conditions of this
Franchise shall govern and control; provided, further, nothing herein shall be deemed to waive,
prejudice or otherwise limit any right of appeal afforded WSUD by such City codes and
ordinances.
3.2 Nothing herein shall preclude WSUD from effecting temporary road closures as
reasonably necessary during construction or maintenance of its Facilities, provided WSUD
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receives prior City approval, which shall not be unreasonably withheld. Whenever it shall be
necessary for WSUD, in the exercise of its rights under this Franchise, to make any excavation in
the Franchise Area, WSUD shall, upon completion of such excavation, restore the surface of the
Franchise Area, as nearly as practicable, to the same condition it was in prior to such excavation.
3.3 The City and WSUD shall exercise best efforts to coordinate construction work
that either may undertake within the Franchise Area so as to promote the orderly and expeditious
performance and completion of such work as a whole. Such efforts shall include, at a minimum,
reasonable and diligent efforts to keep the other party and other utilities within the Franchise
Areas informed of its intent to undertake such construction work. When feasible, the City and
WSUD shall consider joint projects. The City and WSUD shall further exercise best efforts to
minimize any delay or hindrance to any construction work undertaken by themselves or other
utilities within the Franchise Area. If at any time, or from time to time, either WSUD, the City,
or another franchisee, shall cause excavations to be made within the Franchise Area, the party
causing such excavation to be made shall afford the others, upon receipt of a written request to
do so, an opportunity to use such excavation, provided that:
3.3.1 no statutes, laws, regulations or ordinances prohibit or restrict the proximity of
other utilities or facilities to WSUD's Facilities installed or to be installed within the area to be
excavated;
3.3.2 such joint use shall not unreasonably delay the work of the party causing the
excavation to be made; and
3.3.3 such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both parties. The parties shall each cooperate with other utilities in the Franchise
Area to minimize hindrance or delay in construction.
SECTION 4. RELOCATION OF FACILITIES.
4.1 Whenever the City causes a public right-of-way improvement to be undertaken
within the Franchise Area by reason of, including but not limited to, traffic conditions, public
safety, dedications of new rights-of-way and the establishment and improvement thereof,
widening and improvement of existing rights-of-way, street vacations, road and walkway
construction, change or establishment of street grade, the construction of any public
improvement or structure by any governmental agency acting in a governmental capacity, and
such public right-of-way improvement requires the relocation of WSUD’s then existing Facilities
within the Franchise Area (for purposes other than those described in Paragraph 4.2, below), the
City shall:
4.1.1 Notify WSUD during the planning phase to ensure collaborative effort is
made to reduce project expense (to the City and WSUD), allow budgeting for the project
and facilitate joint applications for grants and low-interest funding by the parties. The
City will provide written notification requiring relocation of WSUD’s Facilities at least
one hundred eighty (180) days prior to the commencement of City project. The City shall
also provide WSUD with copies of pertinent portions of the plans and specifications for
such improvement project and where possible propose an alternative location for
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WSUD's Facilities so that WSUD may relocate its facilities within the current right-of-
way or other right-of-way; and
4.1.2 Provide WSUD with copies of the pertinent portions of the plans and
specifications for such public right-of-way improvement.
After receipt of such notice and such plans and specifications, WSUD shall relocate such
Facilities within the Franchise Area at no charge to the City. The City will make its best efforts
to avoid the need for such relocation whenever possible. If the City requires the subsequent
relocation of any Facilities within five (5) years from the date of relocation of such Facilities
pursuant to this Section 4.1, the City shall bear the entire cost of such subsequent relocation. In
the event the City receives any federal, state or other funds for water or sewer relocation
purposes, the Grantee will be given credit to the extent any such funds are actually received by
the City.
4.2 Whenever: (i) any public or private development within the Franchise Area, other
than a public right-of-way improvement, requires the relocation of WSUD’s Facilities within the
Franchise Area to accommodate such development; or (ii) the City requires the relocation of
WSUD’s Facilities within the Franchise Area for the benefit of any person or entity other than
the City, then in such event, WSUD shall have the right as a condition of such relocation to
require such developer, person or entity to make payment to WSUD, at a time and upon terms
acceptable to WSUD, for any and all costs and expenses incurred by WSUD in the relocation of
WSUD’s Facilities.
4.3 Any condition or requirement imposed by the City upon any person or entity,
other than the City or WSUD (including, without limitation, any condition or requirement
imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land
use, construction or development) which requires the relocation of WSUD’s Facilities shall be a
required location for purposes of Section 4.2.
4.4 Nothing in this Section 4 “Relocation of Facilities” shall require WSUD to bear
any cost or expense in connection with the location or relocation of any Facilities then existing
pursuant to easement or such other rights not derived from this Franchise, regardless of whether
such easement or other rights are on public or private property and regardless of whether this
Franchise co-exists with such easement or other rights.
4.5 The provisions of this Section shall in no manner preclude or restrict WSUD from
making any arrangements it may deem appropriate when responding to a request for relocation
of its facilities by any person or entity other than the City, where the facilities to be constructed
by said person or entity are not or will not become City-owned, operated or maintained facilities,
provided that such arrangements do not unduly delay a City construction project and provided
that WSUD acquires all required approvals from the City, including right of way permits.
SECTION 5. INDEMNIFICATION.
5.1 WSUD shall indemnify and hold the City harmless from any and all claims and
demands made against it on account of injury or damage to the person or property of another, to
the extent such injury or damage is caused by the negligence of WSUD, its agents, officers,
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servants or employees in exercising the rights granted to WSUD in this Franchise; provided,
however, that in the event any such claim or demand be presented to or filed with the City, the
City shall promptly notify WSUD thereof, and WSUD shall have the right, at its election and at
its sole cost and expense, to settle and compromise such claim or demand; provided further, that
in the event any suit or action is begun against the City based upon any such claim or demand,
the City shall likewise promptly notify WSUD thereof, and WSUD shall have the right, at its
election and its sole cost and expense, to settle and compromise such suit or action, or defend the
same at its sole cost and expense, by attorneys of its own election. This provision shall survive
the termination of this Franchise.
5.2 This indemnity provision shall not be considered a waiver to any defenses to
which the City may be entitled in such action or suit defended by WSUD, including any defenses
of sovereign immunity.
5.3 Without limiting WSUD’s indemnification obligations that might arise for the
reasons set forth in Section 5.1, the City hereby releases and agrees to indemnify, defend and
hold WSUD, its agents, officers, servants, and employees harmless from and against any and all
claims, costs, judgments, awards or liability to any person arising from WSUD’s compliance
with this Franchise.
5.4 The City hereby releases and agrees to indemnify, defend and hold WSUD, its
agents, officers, servants, and employees harmless from and against any and all claims, costs,
judgments, awards or liability to any person to the extent they arose from the City’s decision to
issue development permits based on accurate information on fire flow and water availability
provided by WSUD or the City’s enforcement of the International Fire Code.
5.5 Should a court of competent jurisdiction determine that this Franchise 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 City and
WSUD, their agents, officers, servants, and employees, WSUD’s liability hereunder shall be
only to the extent of WSUD’s negligence. It is further specifically and expressly understood that
the indemnification provided herein constitutes the parties’ waiver of immunity under Industrial
Insurance, Title 51 RCW, solely for the purposes of this indemnification.
SECTION 6. INSURANCE.
6.1 WSUD shall procure and maintain for the duration of this Franchise insurance or
equivalent self-insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the exercise of the rights, privileges and authority granted
hereunder to WSUD, its agents, representatives, officers or employees in such amounts as are
consistent with good utility practice. Upon the City’s request, WSUD shall provide the City with
reasonable written evidence that WSUD is maintaining such insurance or self-insurance.
6.1.1 WSUD shall procure and maintain insurance or self-insurance to cover
risk of loss related to automobile liability, general liability, pollution liability, personal property,
vehicles, and equipment, and workers’ compensation exposures.
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SECTION 7. VACATION OR DISPOSAL OF FRANCHISE AREA.
7.1 In the event the City vacates or disposes of any portion of the Franchise Area
during the term of this Franchise wherein WSUD has located Facilities, the City shall provide, or
require that those seeking vacation provide, WSUD prior notice of same to allow WSUD to
review and comment on the proposed vacation. If requested by WSUD, the City shall, in its
vacation or disposal procedure, reserve an easement for utilities suitable for WSUD’s Facilities.
If WSUD’s Facilities must be relocated from a vacated public right-of-way, the petitioner of said
vacation will bear the expense of moving said Facilities.
SECTION 8. DEFAULT.
8.1 If WSUD fails to comply with any of the provisions of this Franchise, or through
willful misconduct or gross negligence fails to heed or comply with any notice given WSUD by
the City under the provisions of this Franchise, then the City may serve upon WSUD a written
order to so comply within thirty (30) days from the date such order is received by WSUD. If
WSUD is not in compliance with this Franchise after expiration of said thirty (30) day period,
the City may act to remedy the violation and may charge the costs and expenses of such action to
WSUD. The City may act without the thirty (30) day notice in case of an emergency. The City
may in addition, by ordinance adopted no sooner than five (5) days after notice of the City
Council hearing (at which WSUD will have an opportunity to be heard) on the impending
ordinance is given to WSUD, declare an immediate forfeiture of this Franchise; provided,
however, that if any material failure to comply with this Franchise by WSUD cannot be
corrected with due diligence within said thirty (30) day period (WSUD’s obligation to comply
and proceed with due diligence being subject to unavoidable delays and events beyond its
control, in which case the time within which WSUD may so comply shall be extended for such
time as may be reasonably necessary and so long as WSUD commences promptly and works
diligently to effect such compliance), provided a good faith dispute does not exist concerning
such compliance.
8.2 In addition to other remedies provided herein, if WSUD is not in compliance with
the requirements of this Franchise, and if a good faith dispute does not exist concerning such
compliance, the City may place a moratorium on issuance of pending WSUD right-of-way use
permits until compliance is achieved.
SECTION 9. NONEXCLUSIVE FRANCHISE.
9.1 This Franchise is not, and shall not be deemed to be, an exclusive franchise. This
Franchise shall not in any manner prohibit the City from granting other and further franchises
over, upon, and along the Franchise Area, which do not interfere with WSUD’s rights under this
Franchise. This Franchise shall not prohibit or prevent the City from using the Franchise Area or
affect the jurisdiction of the City over the same or any part thereof.
SECTION 10. FRANCHISE TERM.
10.1 This Franchise is hereby granted for a term of twenty (20) years from and after
the date of the final acceptance of this Ordinance by WSUD, herein referred to as the primary
term. This Franchise will automatically renew for successive terms of five (5) years unless
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cancelled at the end of a term by either party by written notice to the other party no less than one
hundred eighty (180) calendar days prior to the end of the primary term or the then-current
successive term.
10.2 WSUD shall have no rights under this Franchise, nor shall WSUD be bound by
the terms and conditions of this Franchise unless WSUD shall, within sixty (60) days after the
effective date of the Ordinance, file with the City its written acceptance of the Ordinance.
10.3 The City specifically reserves for itself the right to impose taxes, use fees, costs,
service requirements, or other fees on WSUD for the privilege of conducting this business in the
City of Port Orchard, for the use of the City’s rights-of-way, to pay for the costs of regulating
this activity, or for any other public purpose so long as those taxes, use fees, costs, service
requirements or other fees, as authorized by law, are imposed by ordinance, and after one
hundred eighty (180) days written notice to WSUD.
SECTION 11. COMPLIANCE WITH CODES AND REGULATIONS.
11.1 The rights, privileges and authority herein granted are subject to and governed by
this Ordinance and all other applicable ordinances and codes of the City of Port Orchard, as they
now exist or may hereafter be amended, provided the City shall not affect or modify any portion
of this Franchise without WSUD’s written approval. Nothing in this Ordinance limits the City’s
lawful power to exercise its police power to protect the safety and welfare of the general public.
Any location, relocation, or excavation by WSUD shall be performed by WSUD in accordance
with applicable federal, state and local rules and regulations, and any required permits, licenses
or regulatory fees, and applicable safety standards then in effect or any Memorandum of
Understanding with WSUD.
11.2 In the event of any emergency in which any of WSUD's facilities located in or
under any street fails, becomes damaged, or if WSUD's construction area is otherwise in such a
condition as to immediately endanger the property (public or private), life, health or safety of any
individual, WSUD shall immediately, to the extent permitted by City regulations, take the proper
emergency measures to repair its facilities, to cure or remedy the dangerous conditions for the
protection of property, life, health or safety of individuals without first applying for and
obtaining a permit as required by this Franchise. However, this shall not relieve WSUD from the
requirement of later obtaining any permits necessary for this purpose, and WSUD shall apply for
all such permits not later than the next succeeding day during which the City is open for
business.
11.3 Upon written inquiry, WSUD shall provide a specific reference to either the
federal, state or local law establishing the basis for WSUD’s actions related to a specific
franchise issue, provided this provision shall not be construed to limit, waive or modify WSUD’s
right to privileged and confidential attorney-client communications.
11.4 In the event that any territory served by WSUD is annexed to the City after the
effective date of this Franchise, this franchise agreement shall be deemed to be the new
agreement required to be granted to a franchisee in annexed territory by RCW 35A.14.900 for
whatever period of time is then required under that statute or the remaining time left under this
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franchise agreement for the Franchise Area, whichever is longer. Such territory shall then be
governed by the terms and conditions contained herein upon the effective date of such
annexation.
SECTION 12. LOCATION OF FACILITIES AND EQUIPMENT.
12.1 With the exception of components that are traditionally installed above ground,
such as fire hydrants, blow-offs, vault lids, risers, manhole covers and utility markers, all
Facilities and equipment to be installed within the Franchise Area shall be installed underground;
provided, however, that such Facilities may be installed above ground if so authorized by the
City, which authorization shall not be unreasonably withheld, conditioned or delayed, consistent
with the provisions of the City’s land use code and applicable development pre-approved plans.
SECTION 13. SECURITY.
13.1 In lieu of any bond required pursuant to City Code, WSUD hereby warrants all
work performed under this franchise and further specifically represents and warrants that all
required restoration of the right-of-way shall be performed timely, in a workmanlike manner, and
in full compliance with all applicable regulatory standards. Additionally, WSUD will require
any contractor performing work on its behalf that is subject to the terms of this Franchise to
provide all necessary bonds and insurance protecting the City and WSUD.
SECTION 14. RECORD OF INSTALLATIONS AND SERVICE.
14.1 With respect to excavations by WSUD and the City within the Franchise Area,
WSUD and the City shall each comply with its respective obligations pursuant to Chapter 19.122
RCW, and any other applicable state law.
14.2 Upon written request of the City, WSUD shall provide the City with the most
recent update available of any plan of potential improvements to its Facilities within the
Franchise Area; provided, however, any such plan so submitted shall only be for informational
purposes within the Franchise Area, nor shall such plan be construed as a proposal to undertake
any specific improvements within the Franchise Area.
14.3 As-built drawings of the precise location of any Facilities placed by WSUD in
any street, alley, avenue, highway, easement, etc., shall be made available to the City within ten
(10) working days of request.
SECTION 15. ASSIGNMENT.
15.1 This Franchise may not be assigned or transferred without the written consent of
the City. In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall not be required unless
and until the secured party elects to realize upon the collateral. WSUD shall provide prompt
written notice to the City of any such assignment or transfer, and all of the provisions, terms,
conditions, and requirements of this Franchise shall be binding upon successors and assigns as if
they were specifically mentioned wherever WSUD is named herein.
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SECTION 16. ACCEPTANCE.
16.1 This Franchise is granted upon the express condition that WSUD, within sixty
(60) days after the adoption of this Ordinance, shall file with the clerk of the City a written
acceptance of the same.
SECTION 17. SURVIVAL.
17.1 All of the provisions, terms, conditions and requirements of Sections 4
(“Relocation of Facilities”); 5 (“Indemnification”); and 6 (“Insurance”) of this Franchise shall be
in addition to any and all other obligations and liabilities WSUD may have to the City at
common law, by statute, or by contract and shall survive the termination or expiration of this
Franchise and any renewals or extensions thereof.
SECTION 18. NOTICE.
18.1 Any notice or information required or permitted to be given to the parties under
this Franchise agreement may be sent to the following addresses unless otherwise specified:
CITY OF PORT ORCHARD WEST SOUND UTILITY DISTRICT
Mayor General Manager
216 Prospect Street 2924 SE Lund Ave.
Port Orchard, WA 98366 Port Orchard, WA 98366
SECTION 19. SEVERABILITY.
19.1 If any section, sentence, clause or phrase of this Ordinance should be held to be
invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity or constitutionality of any other section, sentence,
clause or phrase of this Ordinance unless such invalidity or unconstitutionality materially alters
the rights, privileges, duties or obligations hereunder, in which event either party may request
renegotiation of those remaining terms of this Franchise materially affected by such court’s
ruling.
SECTION 20. MISCELLANEOUS.
20.1 This Franchise may be amended only by written instrument, signed by both
parties, which specifically states that it is an amendment to this Franchise and is approved and
executed in accordance with the laws of the State of Washington. Without limiting the
generality of the foregoing, this Franchise shall govern and supersede and shall not be changed,
modified, deleted, added to, supplemented or otherwise amended by any permit, approval,
license, agreement or other document required by or obtained from the City in conjunction with
the exercise (or failure to exercise) by WSUD of any and all rights, benefits, privileges,
obligations or duties in and under this Franchise, unless such permit, approval, license,
agreement or other document specifically:
20.1.1 References this Franchise; and
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20.1.2 States that it supersedes this Franchise to the extent it contains terms and
conditions which change, modify, delete, add to, supplement or otherwise amend the
terms and conditions of this Franchise.
In the event of any conflict or inconsistency between the provisions of this Franchise and
the provisions of any such permit, approval, license, agreement or other document, the
provisions of this Franchise shall control.
20.2 In the event any suit or action is commenced by the City against WSUD or by
WSUD against the City in a court of competent jurisdiction: (a) to enforce the terms and
conditions of this Franchise; or (b) on account of any default under or breach of this Franchise,
the prevailing party in such suit or action shall be entitled to recover, in addition to all other
relief, from the other party all reasonable attorney's fees incurred by the prevailing party in
connection with such suit or action.
SECTION 21. EFFECTIVE DATE.
21.1 This Ordinance shall take effect five days after its passage and publication as
required by law.
PASSED by a majority vote of the City Council of the City of Port Orchard, signed by
the Mayor and attested by the Clerk in authentication of such passage this ___ day of
_________, 2018.
_________________________________
Robert Putaansuu, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Brandy Rinearson, CMC, City Clerk Sharon Cates, City Attorney
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City of Port Orchard
Work Study Session Executive Summary
Issue Title: Fourth of July Parade Participation
Meeting Date: May 15, 2018
Time Required: 15 Minutes
Attendees: NA
Action Requested At This Meeting: Discuss if Mayor and Council would like to participate in
the 2018 Fathoms O’ Fun 4th of July Parade.
Issue: The Fathoms O’ Fun 4th of July Parade is on Saturday, June 30, 2018. Mayor and
Councilmembers will need to determine if they would like to participate this year, and if so,
if they would like to hand out any novelties or play music.
Background: In past parades, Mayor and Councilmembers have passed out balloons and
flags. Last year, a public works truck was in the parade with the City’s wayfinding banner
attached to the front.
Alternatives: Do not participate in the parade.
Recommendation: None.
Relationship to Comprehensive Plan: None.
Attachments: Fathoms O’ Fun Parade Application.
Follow-up Notes & Outcomes:
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