Chapter 13.12
STREET, DRAINAGE, WATER, SEWER AND ELECTRIC IMPROVEMENTS – ASSESSMENT REIMBURSEMENT CONTRACTS
Sections:
13.12.040 Application for developer reimbursement agreement.
13.12.050 Preliminary determinations.
13.12.060 Preliminary determination notice.
13.12.070 Developer reimbursement agreement.
13.12.080 Recording – Effective date – Payment of assessment – Lien for nonpayment.
13.12.100 Term of developer reimbursement agreements.
13.12.110 Removal of unauthorized connections or taps.
13.12.120 Interest on assessment.
13.12.130 City administrative fees.
13.12.140 Payment of developer reimbursement charge.
13.12.160 Enforcement of latecomer obligations.
13.12.170 City participation in assessment reimbursement.
13.12.010 Purpose.
The purpose of this developer reimbursement chapter is to define the rules and regulations for executing contracts between the city and developers for private construction of municipal water, sewer, storm water, electrical and street system improvements by providing means for partial cost recovery through a charge to later users of the systems who did not contribute to the capital costs thereof and for establishing assessment reimbursement areas defining which property is subject to such charges. (Ord. 2379 § 1, 1998)
13.12.020 Definitions.
A. “Developer” means an individual, group of individuals, partnership, corporation, association, municipal corporation, state agency, federal agency or other entity undertaking development activity and their successors or assigns.
B. “Assessment reimbursement area” or “benefit area” means that area within the city limits and/or UGA, which includes parcels of real estate adjacent to, or likely to require connection to or service by, the water, sewer, storm sewer, electrical, and/or street system improvements constructed by a developer who has applied to the city for a developer reimbursement agreement pursuant to this chapter.
C. “Cost of construction” is the sum of direct construction costs incurred to construct the street and/or utility system improvements plus indirect costs which are limited to the city latecomer administrative fee (BMC 13.12.130), construction interest (subsection I of this section) and developer administrative costs (subsection D of this section). “Direct construction costs” include but are not limited to all related design services, engineering, surveying, legal services, bonding costs, environmental mitigation, relocation and/or new construction of private utilities as required by the city, (i.e., power, telephone, cable and gas), relocation and/or installation of street lights, relocation and/or installation of signage, acquisition of right-of-way and/or easements, government agency fees, testing services, inspection, plan review and approval, labor, materials, equipment rental and contractor and/or subcontractor fees or charges.
D. “Developer administrative costs” means all indirect costs incurred by the developer in the creation and execution of a public facilities agreement and managing the project, such as office supplies, mailings, clerical services, telephone expenses, accounting expenses, project oversight and the like. Administrative costs shall not exceed three percent of all direct construction costs.
E. “Developer reimbursement agreement” means a written contract between the city and one or more developers providing partial reimbursement for cost of construction of street system improvements and/or utility system improvements to the developer by owners of property who are likely to utilize the improvements and who did not contribute to the original cost of construction.
F. “Assessment” means an equitable pro rata charge to be paid by an owner of property within the assessment reimbursement area for the cost of private construction of public street and/or utility system improvements made pursuant to a public facilities agreement.
G. “Street system improvements” means public street and alley improvements made in existing or subsequently dedicated or granted rights-of-way or easements and any improvements associated therewith including, but not limited to, such things as acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, pedestrian facilities, street lighting, bike lanes, traffic control devices, relocation and/or construction of private utilities as required by the city, (i.e., power, telephone, cable and gas), relocation and/or construction of street lights, traffic control devices, signage and other similar improvements in accordance with city standards.
H. “Utility system improvements” means public water, sewer, electric and system improvements including but not limited to the acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, testing, connection fees and installation of improvements as required by the city and in accordance with city standards which includes but is not limited to the following:
1. Water system improvements including but not limited to such things as treatment facilities, reservoirs, wells, mains, valves, fire hydrants, telemetry systems, pumping stations and pressure reducing stations;
2. Sewer system improvements including but not limited to such things as treatment plants, gravity mains, lift stations, force mains and telemetry systems;
3. Storm water system improvements including but not limited to such things as water quality structures and systems, detention and retention facilities and storm water collection treatment and conveyance facilities;
4. Electric system improvements including but not limited to such things as transformers, substations, transmission and distribution lines.
I. “Construction interest” means the sum of money to be added to the direct construction cost reimbursed to the developer for the use of the developer’s moneys during the construction term. The interest rate shall be one percent above the Federal Reserve bank prime loan rate published most recently before the date of the public facilities agreement. Interest accrual begins on the date of execution of the public facilities agreement and will continue throughout the construction term.
Construction interest shall be computed utilizing the two-thirds rule, i.e., direct cost of construction x construction interest rate/365 x the construction term expressed in days x 0.67 = construction interest.
J. “Construction term” means that period of time between the date of execution of the public facilities agreement and the date of acceptance of the project by the city or the construction completion date as set forth in the public facilities agreement, whichever occurs first.
K. “Public facilities agreement” means any agreement entered into by an individual or entity with the city for the purpose of constructing public improvements that are required to be constructed by the city as a prerequisite to the development of real property. (Ord. 2379 § 1, 1998)
13.12.030 Applicability.
This chapter is intended to apply to all street system improvements and all utility system improvements (subject to the limitation that as to street system improvements this chapter’s applicability is limited to those improvements defined by Chapter 35.72 RCW) where the construction of such improvements are the result of a city of Blaine ordinance or ordinances that require such improvements as a prerequisite to property development. Street system improvements constructed in order to comply with the city of Blaine subdivision code, zoning code, comprehensive plan and Blaine Municipal Code are hereby declared to be prerequisites to further property development for the purpose of RCW 35.72.010. (Ord. 2379 § 1, 1998)
13.12.040 Application for developer reimbursement agreement.
Any developer using private funds to construct street system improvements and/or utility system improvements where the cost of construction is greater than $5,000 in the city or within the city’s utility service area may apply to the city for a developer reimbursement agreement in order to recover a pro rata share of the costs of construction from subsequent users of the street and/or utility system improvements made by the developer.
The application for a developer reimbursement agreement shall be made prior to the date street and/or utility system improvements have been accepted by the city pursuant to the public facilities agreement for such improvements. Application shall be made on forms prepared by the public works department and shall be accompanied by the city administrative fee set forth in BMC 13.12.130. The application shall contain the following information which shall be approved by a state of Washington licensed engineer:
A. A legal description of the developer’s property.
B. A legal description of the properties within the developer’s proposed assessment reimbursement area together with the name and address of the owners of each property as shown in the records of the assessor’s office of Whatcom County.
C. Vicinity maps of developer’s property.
D. The developer’s proposed assessment reimbursement area and general location of the street and/or utility system improvements.
E. Itemized cost data approved by a state of Washington licensed engineer for the cost of construction.
F. The developer’s proposed allocation of the cost of construction to the individual properties within the proposed assessment reimbursement area and the method used for such allocation.
G. An application summary with project description, name of developer and legal descriptions for each of the properties within the assessment reimbursement area together with a statement of intent to collect the proposed allocation of cost of construction to each property. The application summary shall include the following language:
This Application Summary shall have no further force or effect nor shall it constitute an enforceable obligation against any of the properties described herein upon the recording of a Developer Reimbursement Agreement made as to the property herein described.
This Application Summary shall have no further force or effect nor shall it constitute an enforceable obligation against any of the properties described herein after one year from the date of recording; provided, the effective term of the Application Summary may be extended by filing an extension executed by the Developer and approved in writing by the Public Works Department.
The application summary shall be in recordable form.
Filing of an application summary is elective. If no application summary is filed, then the provisions of BMC 13.12.080(A) and (B) shall not apply.
The public works director shall establish policies and procedures for processing applications and complying with the requirements of this chapter.
H. The applicant must agree to an annexation agreement for the property to be serviced by the proposed improvements, if such are located outside the city limits and any such improvements within the UGA. (Ord. 2379 § 1, 1998)
13.12.050 Preliminary determinations.
The public works department shall formulate a preliminary assessment reimbursement area and preliminary assessment for real property benefited by the street and/or utility system improvements based on the following and provide the same to the developer:
A. The likelihood that benefited property will be developed within 15 years from the date of recording of the developer reimbursement agreement.
B. The likelihood that at the time of development of the benefited property such property will not be required to install similar street and/or utility system improvements because they were already installed by the developer.
C. For street systems the assessment reimbursement area shall be based upon a determination of which parcels adjacent to the improvements would require similar street improvements upon development.
D. For utility system improvements, the likelihood (1) that such improvements will be tapped into or used (including not only direct connections, but also connections to laterals or branches connecting thereto) by properties within the assessment reimbursement area, and (2) that such properties will receive a special benefit from the utility system improvements.
E. An equitable allocation of the cost of construction among the properties within the assessment reimbursement area, so that each pays for benefits attributable to those improvements. The method or methods used to calculate the allocation of the assessment may be either front footage, number of units, square footage, or may be the zone and termini method or other recognized methods reasonably calculated to equitably allocate the assessment. (Ord. 2379 § 1, 1998)
13.12.060 Preliminary determination notice.
A. The preliminary assessment reimbursement area and the preliminary assessment formulated by the public works department shall be sent by certified mail to the property owners of record within the preliminary assessment reimbursement area in accordance with Chapter 35.72 RCW, as from time to time amended.
B. The applicant or any property owner within the preliminary assessment reimbursement area may, in writing within 20 days of mailing of the notice, request a hearing to be held before the city council to contest the preliminary assessment reimbursement area and preliminary assessment. Notice of such hearing shall be given to all property owners within the assessment reimbursement area. Public hearing before the city council shall be conducted as soon as is reasonably practical. After public hearing the city council shall establish the assessment reimbursement area and the assessment for each property within the assessment reimbursement area applying the standards set forth in this chapter. The city council’s determination of assessment shall be determinative and final.
All notice requirements set forth in this chapter and associated costs shall be the sole responsibility of the applicant and shall be satisfied by a notarized affidavit that the applicant has mailed the notices pursuant to the requirements set forth herein.
C. In the event no written request is received as required, the determination of the public works department shall be final. (Ord. 2379 § 1, 1998)
13.12.070 Developer reimbursement agreement.
Based upon the preliminary assessment reimbursement area and preliminary assessment, if no hearing is requested, or based upon the city council’s determination of the assessment reimbursement area and assessment, if a hearing is requested, the public works department shall prepare and give to the applicant a developer reimbursement agreement. (Ord. 2379 § 1, 1998)
13.12.080 Recording – Effective date – Payment of assessment – Lien for nonpayment.
A. The developer’s right to assessments shall relate back to the date the developer records an application summary pursuant to BMC 13.12.040(G).
B. Any property described in the recorded application summary shall be subject to the assessment after it has been approved by the city pursuant to this chapter.
C. The developer reimbursement agreement shall be promptly recorded by the city with the Whatcom County auditor.
D. The city shall not issue a building permit or similar development permit or approval nor grant permission to use water or sewer service unless the city has received full payment of the assessment, including interest, applicable to the property connecting to or using the street and/or utility system improvements constructed by the developer.
E. If improvements are made to a property adjacent to a street improvement or if a property connects to a utility system improvement without payment of an assessment otherwise due, the amount of such assessment shall be a binding obligation upon the owner of record (and successors) of the affected property.
F. Failure by a property owner to pay the assessment due within 180 days of notice to this effect shall entitle the developer to foreclose against the property in the same manner as a mortgage, and shall entitle the developer to recover reasonable costs and attorney fees. (Ord. 2379 § 1, 1998)
13.12.090 Segregation.
The public works department shall, upon the request of any property owner within the assessment reimbursement area, segregate the assessment. The segregation shall be based upon the same factors applied when the assessments were originally established. The property owner seeking segregation of the assessment shall pay an administrative fee to the city of Blaine based upon a segregation fee schedule to be established by the public works department. (Ord. 2379 § 1, 1998)
13.12.100 Term of developer reimbursement agreements.
Each developer reimbursement agreement shall be valid for a period not to exceed 15 years from the date of its recording. (Ord. 2379 § 1, 1998)
13.12.110 Removal of unauthorized connections or taps.
Whenever any tap or connection is made into any water, sewer, electrical and/or storm sewer system(s) without payment being made as required by this chapter, the city engineer may cause to be removed such unauthorized tap or connection and all connecting pipe located in the city right-of-way without any liability to the city or city officials. (Ord. 2379 § 1, 1998)
13.12.120 Interest on assessment.
Each assessment established in the developer reimbursement agreement shall bear interest from the date of recording of the developer reimbursement agreement at an interest rate fixed at the Federal Reserve rate for one-year Treasury bills on the secondary market. (Ord. 2379 § 1, 1998)
13.12.130 City administrative fees.
A. The city shall charge for processing developer assessment agreements the base fee of $300.00 for utility system improvements and $450.00 for street system improvements. To the base fee shall be added one percent of the cost of construction.
B. Further, for every separate parcel of property within the applicant’s proposed assessment reimbursement area $150.00 shall be added to the base fee established pursuant to the above schedule.
C. The base fee and the parcel fee shall be adjusted annually to reflect inflationary costs, increase or decrease. The adjusted fee shall be calculated by adjusting upwards or downwards in accordance with the change in the ENR Construction Cost Index for Seattle, WA as published by McGraw-Hill. The ENR Construction Cost Index for Seattle, WA in January 1998 = 5852. The fee established by this formula shall be rounded up or down to the next $10.00.
D. The city latecomer administrative fee shall be paid upon application for a developer reimbursement agreement. (Ord. 2379 § 1, 1998)
13.12.140 Payment of developer reimbursement charge.
Each assessment shall be due in its entirety upon connection to or use of a street and/or utility system improvement by a property subject to an assessment and shall be paid to the city in one lump sum including interest until date of payment. The city will pay the developer the amounts due within 30 days of receipt.
When the assessment for any property has been paid in full, the public works director shall record a certification of payment that will release such property from the developer reimbursement agreement, and record a release of agreement with the Whatcom County auditor. (Ord. 2379 § 1, 1998)
13.12.150 Appeal.
A developer may appeal the interpretation and/or decisions of the public works department concerning any aspect of this chapter to the city council. Notice of appeal must be received by the city clerk no later than 10 days after the decision to be appealed is rendered. Council will then schedule a hearing and set filing deadlines. Assessment reimbursement area determination appeals must be processed pursuant to BMC 13.12.060. (Ord. 2379 § 1, 1998)
13.12.160 Enforcement of latecomer obligations.
In processing and imposing obligations in this chapter for reimbursement of developers, the city in no way guarantees payment of assessments by latecomers or enforceability of assessments or the amount(s) thereof against such persons or property. Nor will the offices or finances of the city be used for enforcement or collection of latecomer obligations beyond those duties specifically undertaken by the city herein. It shall be the obligations of a developer to take whatever authorized means are available to enforce payment of latecomer assessments, and developers are hereby authorized to take such actions. (Ord. 2379 § 1, 1998)
13.12.170 City participation in assessment reimbursement.
As an alternative to financing projects under this chapter solely by owners of real estate, the city may join in the financing of improvement projects and may be reimbursed in the same manner as the owners of real estate who participate in the projects; provided, that (A) as to street system improvements, the conditions of the city’s participation shall be specified by ordinance, and (B) as to utility system improvements, the 15-year limitation in BMC 13.12.100 shall not apply. The city may be reimbursed only for the costs of improvements that benefit that portion of the public who will use the developments within a given assessment reimbursement area. No costs of improvement that benefit the general public may be reimbursed. (Ord. 2379 § 1, 1998)