Chapter 13.32 UTILITY EXTENSION AND LATECOMER REIMBURSEMENT AGREEMENTS

If an owner of real property within the city complies with the provisions of this chapter relating to utility improvements, the city shall enter into an agreement with the owner for the construction of utility improvements to serve the real property. (Ord. 2002-01 § 1, 2002)

13.32.020 Utility extension agreement – Streets.

If an owner of real property within the city complies the provisions of this chapter relating to street improvements, the city shall enter into an agreement with the owner for the construction of street improvements to serve the real property. (Ord. 2002-01 § 1, 2002)

13.32.030 Definitions.

“Owner” means the owner of real property or the owner’s representative; provided, that for purposes of executing a utility extension agreement, a latecomer reimbursement agreement, a bond, a bill of sale and any instrument establishing real property rights, “owner” means the legal owner of the real property.

“Public works director” means the public works director and the director’s designee.

“Street improvements” means all improvements and facilities relating to streets, including but not limited to curbs, gutters, sidewalks, pavement, shoulders, street lighting, landscaping, traffic controls, utility relocation and stormwater conveyances.

“Utility extension agreement” means an agreement between the city and a property owner for the construction of street improvements or utility improvements pursuant to this chapter.

“Utility improvements” means city-owned water, sewer and stormwater improvements and facilities, including but not limited to mains, valves, manholes, catch basins, pumping stations, hydrants, reservoirs, ponds and appurtenances. (Ord. 2002-01 § 1, 2002)

13.32.040 Applications for utility extension agreements.

An owner desiring to enter into an agreement with the city to construct utility or street improvements shall submit to the public works department an application for such construction, on a form prepared by the public works director, together with an application fee in an amount established by resolution. The owner shall declare in the application whether a latecomer reimbursement will be requested. The owner also shall pay any processing charges established by resolution. The application shall be filed with the public works department prior to or concurrently with a land use application, as defined in BIMC 2.16.020.C, for the same real property. The application shall include drawings showing generally the proposed location, type and size of the utility or street improvements. The public works director may require additional information, or revisions to the drawings, that are necessary to evaluate the application. (Ord. 2002-01 § 1, 2002)

13.32.050 Consideration and approval of utility extension agreements.

The public works director shall review and may approve the application. After approval, the owner shall execute and return to the public works department a utility extension agreement in a form approved by the public works director. The agreement shall include but not be limited to the following provisions:

A. Warranty by the owner that the owner owns the real property;

B. Compliance by the owner with city construction standards and regulations;

C. Preparation of the plans and specifications by a qualified licensed professional selected by the owner;

D. Review and approval of the plans and specifications by the city engineer or the engineer’s designee;

E. Payment by the owner of any fees and charges of the city’s staff and consultants relating to the application;

F. Payment of all fees and charges due from the real property prior to connection or use of the utility or street improvements;

G. Submittal of proof of insurance in types, conditions and amounts to be established by the public works director;

H. Provision of performance bond for work occurring in right-of-way;

I. Acceptance of the improvements by warranty bill of sale with terms and conditions approved by the public works director;

J. Provision of one-year maintenance bond for the improvements; and

K. Indemnification of the city and its officers, employees and agents.

The agreement shall be signed by the owner and the public works director before construction of the street or utility improvements is commenced. The public works director may approve changes to the form agreement upon consultation with the city attorney. The owner shall submit the agreement, at the same time as the right-of-way permit, and latecomer reimbursement application to the public works director. (Ord. 2002-01 § 1, 2002)

13.32.060 Easements and rights-of-way.

Prior to the construction of utility or street improvements, the applicant shall secure all necessary easements or rights-of-way, as determined by the public works director, at no cost to the city. The form of these instruments shall be approved by the public works director. (Ord. 2002-01 § 1, 2002)

13.32.070 Completion and acceptance of improvements.

After completion of utility or street improvements, the owner shall notify the city in writing of completion of the improvements. After the public works director has determined that the improvements have been completed in accordance with the terms and conditions of the utility extension agreement, the director shall accept the improvements by warranty bill of sale, in a form acceptable to the director; provided, that if the owner has applied for latecomer reimbursement, the public works director shall accept the improvements after the city council has made a decision on the reimbursement charge and area. (Ord. 2002-01 § 1, 2002)

13.32.080 Latecomer reimbursement – Water, sewer and stormwater.

Upon compliance with this chapter, an owner who constructs utility improvements pursuant to a utility extension agreement shall receive latecomer reimbursement from owners of real property abutting the utility improvements who:

A. Did not contribute, in whole or in part, to the original cost of the utility improvements;

B. Are within the reimbursement area that is established under this chapter;

C. Have been assessed a reimbursement charge under this chapter; and

D. Within 15 years after the execution of the latecomer reimbursement agreement, either connect such real property to the water or sewer improvements or use the stormwater improvements. (Ord. 2002-01 § 1, 2002)

13.32.090 Latecomer reimbursement – Streets.

Upon compliance with this chapter, an owner who constructs street improvements required by the city’s SEPA, subdivision or other general land use and environmental ordinances, the city’s street standards ordinance or any site-specific ordinance, in connection with a land use application, as defined in BIMC 2.16.020.C, shall receive reimbursement from owners of real property abutting the street improvements who:

A. Did not contribute, in whole or in part, to the original cost of the street improvements;

B. Are within the reimbursement area that is established under this chapter;

C. Have been assessed a reimbursement charge under this chapter;

D. Develop or redevelop their property within 15 years after execution of the latecomer reimbursement agreement; and

E. At the time of development or redevelopment would be required to install similar street improvements but do not have to because they were installed by the real property owner. (Ord. 2002-01 § 1, 2002)

13.32.100 Applications for latecomer reimbursement.

An owner desiring to enter into a latecomer reimbursement agreement, for streets or utilities, shall submit to the public works department an application for latecomer reimbursement, on a form prepared by the public works director, with the application for utility extension agreement. The owner also shall submit a latecomer application fee in an amount established by resolution. The owner also shall pay any processing charges established by resolution. The reimbursement application shall include but not be limited to the following:

A. A map showing the parcels that are proposed for the reimbursement area and the parcels that will be contributing to the costs of the utility or street improvements through an arrangement with the owner;

B. A title report for all parcels proposed for the reimbursement area;

C. The estimated total costs for the utility or street improvements, prepared by a qualified licensed professional engineer, and the estimated percentage of the costs to be assessed to the parcels in the proposed reimbursement area; and

D. The proposed method for calculating the pro rata reimbursement charges, which shall be consistent with BIMC 13.32.130.

The public works director may require additional information, or revisions to the maps and other documents described above, that are necessary to evaluate the reimbursement application. Before submitting the reimbursement latecomer application, the owner shall request and attend a pre-reimbursement application meeting with public works department staff. The decision of the public works director shall be final. The reimbursement application shall be processed concurrently with the application for utility extension agreement. (Ord. 2002-01 § 1, 2002)

13.32.110 Recording of notice of proposed latecomer charge.

After receipt of the reimbursement application, the public works director shall cause a notice of the proposed reimbursement charge for the proposed reimbursement area to be filed with the Kitsap County auditor and shall send a notice of proposed reimbursement charges by certified mail, copy received, to the owners of real property within the reimbursement area. If the reimbursement charge is not imposed, the public works director shall cause a notice of the decision not to impose the reimbursement charge to be filed with the Kitsap County auditor. The cost of recording the notices shall be paid by the owner. (Ord. 2002-01 § 1, 2002)

13.32.120 Submittal of latecomer reimbursement information.

For improvements that are subject to latecomer reimbursement, the public works director, after determining that the improvements are complete under BIMC 13.32.070, shall send a letter to the owner by certified mail, copy received, requesting the submittal of all data and information in support of the cost of the improvements. The owner shall submit the data and information within 21 days of the date of the letter. If the owner fails to submit the data and information within 21 days, or fails to submit any additional data and information requested by the public works director within 21 days of a request for additional data and information, the owner shall be deemed to have waived the right to reimbursement, and the application shall be null and void and terminated. Upon written request filed with the public works director within seven days after any deadline, and upon proof of hardship or excusable neglect, the public works director may set aside the application termination and grant a period of up to 21 days for return of the data and information. The decision of the public works director shall be final. (Ord. 2002-01 § 1, 2002)

13.32.130 Determination of latecomer preliminary reimbursement charge and area.

Based on information and data provided by the owner, and on other available information and data, the public works director shall determine the preliminary cost of the street or utility improvements, the preliminary pro rata reimbursement charge and the preliminary reimbursement area. The preliminary cost shall include but not be limited to design, engineering, construction, inspection, restoration and legal review. To determine the preliminary pro rata reimbursement charge, the public works director may use any method or combination of methods, including but not limited to calculations based on the maximum number of developable lots under current zoning, length of front footage of the parcel along the improvements or total square footage of the parcel subject to reimbursement. For street improvements, the method shall take into account the benefit to the parcel from the street improvements. (Ord. 2002-01 § 1, 2002)

13.32.140 Notice of preliminary latecomer charge and area.

After determining the preliminary reimbursement charge and area, the public works director shall cause notice of such charge and area to be sent by certified mail, copy received, to the owners of record, according to the title report submitted by the owner, updated by the owner if requested by the public works director. The notice shall include the following:

A. The amount of the pro rata reimbursement charge;

B. A map showing the owner’s property, the general location of the improvements and the reimbursement area;

C. The conditions under which the reimbursement charge would be due and owing, such as only upon connection to or use of the improvements;

D. The time period for reimbursement;

E. The opportunity to review the cost information and data at the public works department;

F. The opportunity to submit written comments within 14 days of the date of the notice; and

G. The city’s obligation to send an official reimbursement charge notice thereafter, with an opportunity pursuant to that notice to request a hearing before the city council on the reimbursement charge and area.

The public works director shall consider any timely filed written comments, making changes to the preliminary reimbursement charge and area as appropriate. (Ord. 2002-01 § 1, 2002)

13.32.150 Determination and notice of recommended latecomer charge and area.

After determining the preliminary reimbursement charge and area, and considering the timely filed written comments, the public works director shall establish a recommended reimbursement charge and area. The public works director shall advise the owner of the recommended reimbursement charge and area by letter sent by certified mail, copy received. The letter shall enclose an original latecomer reimbursement agreement for signature by the owner, who shall return the executed agreement within 21 days after the date of the letter. If the owner fails to return the executed agreement within the 21-day period, the application for latecomer reimbursement shall be deemed null and void and terminated. Upon written request filed with the public works director within seven days after the deadline, and upon proof of hardship or excusable neglect, the public works director may set aside the application termination and grant a period of up to 21 days for return of the executed agreement. The decision of the public works director shall be final. (Ord. 2002-01 § 1, 2002)

13.32.160 Latecomer reimbursement agreement form.

The form of the latecomer reimbursement agreement shall be prepared and approved by the public works director. The form shall include but not be limited to the following:

A. A 15-year reimbursement period, following the effective date of the agreement;

B. The approved total cost of the improvements, and the cost subject to reimbursement;

C. The method for determining the reimbursement charges;

D. The payment of the reimbursement charges prior to connection to or use of the improvements;

E. The non-accrual of interest on the reimbursement charges;

F. The deduction of 10 percent of the charge to cover city expenses of handling the reimbursement;

G. The responsibility of the owner to pay for the cost of recording the agreement;

H. The responsibility of the city to mail the reimbursement to the owner, or to any other person designated in writing by the owner to receive the reimbursement, at the address given to the public works department by such persons;

I. The ability of the city to retain any reimbursement payment that is unclaimed by the owner or the owner’s designee within three years of payment; and

J. The ability of the city to interplead any reimbursement into superior court if a dispute arises as to the proper person to receive the payment. (Ord. 2002-01 § 1, 2002)

13.32.170 Official notice of recommended charge and area – Fixing of hearing.

Upon receipt of an executed latecomer reimbursement agreement from the owner, the public works director shall send an official notice of the recommended reimbursement charge and area by certified mail, copy received, to the owners of the real property subject to reimbursement, according to the title report submitted by the owner, updated by the owner if requested by the public works director. The notice shall include but not be limited to the following:

A. The amount of the pro rata reimbursement charge;

B. A map showing the owner’s property, the general location of the improvements and the reimbursement area;

C. The conditions under which the pro rata reimbursement charge would be due and owing, such as only upon connection to and use of the improvements;

D. The time period for reimbursement; and

E. The opportunity to request a hearing before the city council, by making such request in writing to the city clerk within 21 days of the date of the notice.

If any property owner requests a hearing in writing within the 21-day period, the city clerk shall notify the public works director of the request. The city clerk and public works director shall jointly schedule a hearing during a regular city council meeting. Notice of the hearing shall be sent by certified mail, copy received, to the owner and the owners of real property subject to reimbursement, at least 21 days before the date of the hearing. (Ord. 2002-01 § 1, 2002)

13.32.180 City council determination of reimbursement charge and area.

After the hearing, or any continuance of the hearing, the city council shall by motion approve, disapprove or modify the recommended reimbursement charge and area. The city council may disapprove reimbursement only if it concludes that the criteria of BIMC 13.32.080 or 13.32.090 have not been satisfied. The motion approving or modifying the recommended reimbursement charge and area shall also authorize the public works director to sign the latecomer reimbursement agreement. The city council decision by motion shall be the final action of the city on the reimbursement charge and area. (Ord. 2002-01 § 1, 2002)

13.32.190 Execution of latecomer agreement – No hearing.

If no hearing before the city council is requested, the public works director shall sign the latecomer reimbursement agreement after execution and return by the owner in accordance with BIMC 13.32.150. (Ord. 2002-01 § 1, 2002)

13.32.200 Recording of latecomer agreement – Amendment of city records.

After final execution of the latecomer reimbursement agreement, the public works director shall cause it to be recorded with the Kitsap County auditor. The cost of recording shall be paid by the owner. After recording, the public works director shall cause a copy of the recorded agreement to be mailed to the owner and the owners of real property within the reimbursement area by certified mail, copy received, and shall cause city records for land use development and utility systems to indicate, if feasible, the latecomer reimbursement charges against the burdened parcels. (Ord. 2002-01 § 1, 2002)

13.32.210 Payment of reimbursement charge.

The owner of real property subject to a reimbursement charge shall pay the charge prior to connecting to or using the utility or street improvement. If a building permit is issued concurrently with the connection or use, the reimbursement charge shall be paid prior to issuance of the building permit. (Ord. 2002-01 § 1, 2002)

13.32.220 Segregation of reimbursement charges.

Following a division of a reimbursement parcel by subdivision, city approval or permit or court order, the owner of the original parcel shall apply for a segregation to the public works director by written application, in a form approved by the director. The city shall have no duty or responsibility to notify the owner of the original parcel of this requirement, and shall not be liable for any damages, claims or liabilities resulting from the failure to segregate. The application shall include a copy of the latecomer reimbursement agreement imposing the reimbursement charge, and a copy of the ordinance, resolution or order legally dividing the property. The segregation shall be made as nearly as possible on the same basis as the original reimbursement, and the total of the segregated parts of the reimbursement shall equal the reimbursement before segregation. Upon verification of the legal division, the public works director shall approve the segregation. The public works director shall cause a notice of segregated reimbursement charge to be recorded with the Kitsap County auditor. The cost of recording shall be paid by the owner. After recording, the public works director shall cause a copy of the recorded notice to be mailed to the owner by certified mail, copy received. (Ord. 2002-01 § 1, 2002)

13.32.230 Recording of release.

When the reimbursement charge against a parcel has be paid in full, or the 15-year period for the reimbursement charge has elapsed, the public works director shall cause a notice of payment and release, or a notice of release, as applicable, to be recorded with the Kitsap County auditor. (Ord. 2002-01 § 1, 2002)

13.32.240 Multiple connection points.

If the real property abuts more than one street improvement for which there is a reimbursement charge, or more than one utility improvement for which there is a reimbursement charge, the public works director may either select the improvement to which connection shall be made, based on engineering, safety and topographical considerations, or allow the real property owner to select the improvement to which connection shall be made. The real property owner shall pay a reimbursement charge only for the improvement to which connection is made. (Ord. 2002-01 § 1, 2002)