Chapter 13.44
LATECOMERS AGREEMENTS
Sections:
13.44.030 Applicability and eligibility.
13.44.040 Application for latecomers agreement.
13.44.050 Notice of complete application and preliminary determination.
13.44.070 Notice to property owners and public hearing.
13.44.080 Final agreement timing and requirements.
13.44.090 Recording, payment of assessment, utilization of improvements, and lien for nonpayment.
13.44.100 Term of latecomers agreements.
13.44.110 Removal of unauthorized utility connections.
13.44.120 Interest on assessment.
13.44.130 City administrative fees.
13.44.140 Payment of assessment.
13.44.160 Enforcement of latecomer obligations.
13.44.010 Purpose.
To establish a uniform methodology and process for the administration of latecomers agreements for developers in circumstances where a developer uses private funds or the City uses public funds to construct a public utility and/or street system improvement(s) and desires to be compensated by property owners benefited by the improvements. This chapter is enacted pursuant to, and in expansion of, Chapter 35.72 RCW for streets and Chapter 35.91 RCW for utilities. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.010)
13.44.020 Definitions.
A. “Assessment” is an equitable pro rata charge for the cost of public or private construction of public street and/or utility system improvements as outlined to be paid by an owner of property who benefits from said improvements. Assessments are established within a latecomers agreement recorded against the benefited property. Assessment shall have the same meaning as “latecomer fees” for utility improvements, as defined by RCW 35.91.015(1) and/or “reimbursement” for street improvements, as described within Chapter 35.72 RCW.
B. “Assessment reimbursement area” is an area defined by boundaries that include all parcels of real property adjacent to street system improvements or could be serviced by utility improvements that have been installed by a developer, as defined by this chapter, which would require similar street or utility improvements upon development.
C. “Benefited property” are properties identified within an assessment reimbursement area.
D. “Cost of construction” is the sum of all direct, indirect and administrative costs incurred to construct the street or utility system improvements. Direct costs include, but are not limited to, those costs for construction of physical street or utility improvements as required by the City (e.g., curbs, gutters, sidewalks, roadways, stormwater systems, water systems, sanitary sewer systems), 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. Indirect costs include, but are not limited to, those costs incurred in the preparation for and oversight of construction (e.g., design services, engineering, surveying, legal services, bonding costs, and environmental mitigation). Administrative costs include, but are not limited to, all costs incurred by the developer in the creation and execution of a latecomers agreement and managing the project (e.g., office supplies, mailings, clerical services, telephone expenses, accounting expenses and project oversight). Administrative costs shall not exceed three percent of the total cost of construction.
E. “Developer” is an individual or entity that contracts with the City for the construction of street and/or utility system improvements, where such improvements are a requirement for development of real property owned by such entity or individual. The City of Ferndale may act in the role as a developer for the purposes of this chapter, in those cases when the City constructs or causes to be constructed street and/or utility system improvements that would otherwise be a requirement for development of real property owned by public or private interests.
F. “Latecomers agreement” is a written contract between the City and a developer that provides reimbursement for cost of construction of street system improvements and/or utility system improvements to the developer by owners of property who may use the improvements and who did not contribute to the original cost of construction. When the City acts as a developer, the same process shall apply.
G. “Street system improvements” are public street and/or 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 rights-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, planting of street trees and other landscaping, 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.
H. “Utility connection” shall include:
1. Direct connections, which means a tap into a utility (i.e., water, sanitary sewer or storm sewer) main line;
2. Lateral connections, which means a connection to a direct tap into a utility (i.e., water, sanitary sewer or storm sewer) main line; and
3. Branch connections, which means a connection to a utility (i.e., water, sanitary sewer or storm sewer) lateral line.
I. “Utility system improvements” include, but are not limited to:
1. Water system improvements, including but not limited to treatment facilities, reservoirs, wells, mains, valves, fire hydrants, telemetry systems, pumping stations, pressure reducing stations, and easements and/or right-of-way acquisitions needed to accommodate their construction and ongoing maintenance;
2. Sewer system improvements including but not limited to treatment plants, gravity mains, lift stations, force mains, telemetry systems, and easements and/or right-of-way acquisitions needed to accommodate their construction and ongoing maintenance; and
3. Stormwater system improvements including but not limited to water quality structures and systems, detention and retention facilities, stormwater collection and conveyance facilities, and easements and/or right-of-way acquisitions needed to accommodate their construction and ongoing maintenance. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.020)
13.44.030 Applicability and eligibility.
A. Applicability. This chapter is intended to apply to all street system improvements and all utility system improvements where the construction of such improvements is required by a City ordinance or ordinances as a prerequisite to property development.
B. Eligibility. Eligible improvements include those defined in FMC 13.44.020(G) and (I). (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.030)
13.44.040 Application for latecomers agreement.
A. Any developer constructing street system improvements and/or utility system improvements in the City or within the City’s utility service area may apply to the City for a latecomers agreement in order to recover a pro rata share of the costs of construction from other property owners that will later derive a benefit from the street and/or utility system improvements made by the developer.
B. The developer shall submit an application for a latecomers agreement to the Public Works Department at the time civil drawings are submitted to the City. The application shall be on a form provided by the City and shall contain all of the following information:
1. The Whatcom County Assessor’s tax parcel identification number(s) and legal description(s) of the developer’s property;
2. A map of the proposed assessment reimbursement area;
3. A map showing the location of the street and/or utility system improvements;
4. An itemized preliminary cost estimate prepared and sealed by a State of Washington licensed civil engineer for work proposed to be covered under the agreement;
5. A written statement outlining the proportion of the cost of the improvements that solely benefit the developer. The statement shall be accompanied by supporting calculations prepared and sealed by a State of Washington licensed civil engineer;
6. The developer’s proposed assessment of the cost of construction (assessment) to the individual properties within the proposed assessment reimbursement area and statement explaining the proposed cost allocation methodology used for such calculation; and
7. Payment of the full amount of the nonrefundable processing fee, as defined within the City’s current fee schedule. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.040)
13.44.050 Notice of complete application and preliminary determination.
Within 20 days of receiving the application for a latecomers agreement, the City shall determine whether the application is complete and whether the proposed improvements in the application are eligible for reimbursement. If the application is complete, the City will issue a written notice of complete application to the developer. If the application is incomplete, the City will notify the developer in writing what additional information is required. The applicant will have no more than 30 days from the date of the written notice to respond and provide the information required to complete the application. If the developer fails to meet the foregoing timeframe, the City may reject the application. If the proposed improvements are eligible for reimbursement, the City will prepare a draft latecomers agreement based on the complete application. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.050)
13.44.060 Draft agreement.
Within 20 days of issuing its preliminary determination, the City shall prepare a draft latecomers agreement based upon the information provided within the developer’s application and the requirements of this chapter. The City shall have administrative authority to amend or revise the developer’s proposed assessment reimbursement area and the proposed assessment, so long as the draft latecomers agreement remains consistent with this chapter. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.060)
13.44.070 Notice to property owners and public hearing.
A. Notice to Property Owners. The City shall notify property owners of record within the assessment reimbursement area defined within the draft latecomers agreement, notifying them of a public hearing with City Council pursuant to FMC 14.15.050. The certified mailing shall include the following:
1. The description of the proposed project;
2. A map of the assessment reimbursement area;
3. The estimated cost of the project;
4. The method of the pro rata assessment; and
5. The assessment.
B. Public Hearing. The City Council shall conduct a public hearing pursuant to FMC 14.15.050. Upon consideration of public comment, the City Council shall either preliminarily approve the draft latecomers agreement or remand the draft latecomers agreement back to the City for revision and further consideration by the City Council at a later date. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.070)
13.44.080 Final agreement timing and requirements.
A. Timing for Submitting Costs of Construction. Within 180 days following the developer’s completion of the work, as defined by completion of the final punch list and the City’s acceptance of the maintenance security for the applicable portions of the work, the developer shall submit costs of construction to the Public Works Department for review. Failure to submit costs of construction within the 180-day timeframe renders the developer’s application and draft latecomers agreement null and void, thereby forfeiting the developer’s claim to recovery of costs as outlined and permitted within the process outlined within this chapter.
B. Requirements for Submitting Costs of Construction. The developer shall submit actual and itemized costs of construction prepared and stamped by a Washington State licensed civil engineer. The developer shall be prepared to provide, upon request, any supporting documentation, including, but not limited to, invoices, receipts, and detailed cost breakdowns as needed to confirm the actual costs of construction. The developer shall also submit a revised assessment reimbursement area map (if applicable), with a thorough written explanation supporting the revision, which will be reviewed in accordance with subsections (B)(1) and (2) of this section. The actual itemized costs of construction, the assessment, and the revised assessment reimbursement area map and any supporting documentation shall be reviewed by the Public Works Department.
1. If the actual itemized costs, assessment, and assessment reimbursement area are consistent with the draft latecomers agreement preliminarily approved by the City Council, the draft latecomers agreement shall be placed on the next available City Council agenda as a consent agenda item with a recommendation that the City Council direct the Public Works Director to prepare the final latecomers agreement and any other necessary documents for recording. If approved, this will constitute the final decision of the Council. For the purposes of this section, “consistent” shall mean that the cost differential is less than 20 percent between the actual itemized costs and the assessment in the preliminarily approved draft latecomers agreement and the actual itemized costs and the assessment submitted for the final agreement, and that the assessment reimbursement area has not changed.
2. If the actual itemized costs, assessment, and/or the assessment reimbursement area are not consistent, as defined in subsection (B)(1) of this section, with the draft latecomers agreement preliminarily approved by the City Council, the Public Works Director shall require that the developer provide a detailed written explanation for the differences. As soon as practical, the Public Works Department will review and consider the developer’s explanation and prepare a revised draft latecomers agreement in accordance with this chapter for review by the City Council after a second public hearing. The Public Works Department shall have the discretionary authority to accept all, portions, or none of the developers provided explanation for inconsistencies that compel revisions to the draft latecomers agreement and to prepare the revised draft latecomers agreement based only on changes it deems are consistent with this chapter.
a. If City Council finds that the revised draft latecomers agreement meets the requirements of this chapter, and that the public use and interest will be served by the street or utility system improvements despite the revisions, it shall direct the Public Works Director to prepare the final latecomers agreement and any other necessary documents for recording. This will constitute the final decision of the Council.
b. If City Council finds that the revised draft latecomers agreement does not meet the requirements of this chapter, it shall remand the revised draft latecomers agreement back to the City for additional revision and further consideration by City Council at a later date. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.080)
13.44.090 Recording, payment of assessment, utilization of improvements, and lien for nonpayment.
A. Recording. The latecomers agreement shall be recorded by the developer with the Whatcom County Auditor within 30 days of City Council approval of the final latecomers agreement. Failure to record the latecomers agreement shall render the latecomers agreement null and void, thereby forfeiting the developer’s claim to recovery of costs as outlined and permitted within the process outlined within this chapter.
B. Payment. 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, provided, if the validity of the latecomers agreement is being challenged, the City reserves the right to issue a permit, approval or permission without liability or prejudice to the City and without prejudicing the developer’s rights or remedies under this chapter or otherwise at law or in equity.
C. Utilization of Improvements. 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 benefited property.
D. Lien for Nonpayment. 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. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.090)
13.44.100 Term of latecomers agreements.
A. Street System Improvement Latecomers Agreements. Latecomers agreements for street system improvements shall be valid for a period not to exceed 15 years from the date of its recording, but may be extended by the City Council in certain circumstances, pursuant to RCW 35.72.020.
B. Utility System Improvement Latecomers Agreements. Latecomers agreements for utility system improvements shall be valid for a period not to exceed 20 years from the date of its recording, but may be extended by the City Council in certain circumstances, pursuant to RCW 35.91.020. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.100)
13.44.110 Removal of unauthorized utility connections.
Whenever any utility connection is made into any utility system improvement without payment of the assessment being made as required by this chapter, the City is authorized to remove and disconnect, or cause to be removed and disconnected, such unauthorized utility connection including all connecting tile or pipe located in the right-of-way and to dispose of such unauthorized material without liability. The owner of the property where the unauthorized utility connection is located shall be liable for all costs and expenses of any type incurred to remove, disconnect, and dispose of the unauthorized utility connection. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.110)
13.44.120 Interest on assessment.
Each assessment established in the latecomers agreement shall bear interest from the date of recording of the latecomers agreement at an interest rate fixed at the Federal Reserve rate for a two-year Treasury note, as determined on the date of recording the latecomers agreement. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.120)
13.44.130 City administrative fees.
Administrative fees shall be paid in accordance with the City’s current adopted fee schedule. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.130)
13.44.140 Payment of assessment.
Each assessment shall be due in its entirety prior to utility connection or occupancy of the proposed use or structure, and shall be paid to the City in one lump sum, including interest calculated as of the date of payment. The City will pay to the developer the amount due, as outlined within the latecomers agreement, within 60 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 latecomers agreement. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.140)
13.44.150 Appeal.
With the exception of final City Council actions, which are appealable to the Whatcom County superior court, a developer may appeal any final administrative determinations and interpretations by the City concerning any aspect of this chapter to the Hearing Examiner as provided by FMC 14.11.070. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.150)
13.44.160 Enforcement of latecomer obligations.
A. In processing and imposing obligations in this chapter for reimbursement to developers, the City in no way guarantees payment of assessments by latecomers agreements, or enforceability of assessments, or enforceability of the latecomers agreement, or the assessment 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 agreement obligations beyond those duties specifically undertaken by the City herein. It shall be the obligation of a developer to take whatever authorized means are available to enforce payment of latecomer agreement assessments; and developers are hereby authorized to take such actions. The City shall not be responsible for locating any beneficiary or survivor entitled to any assessments by or through a latecomers agreement.
B. Any funds collected under this chapter that are unclaimed by developers after three years from the expiration of the latecomers agreement shall be returned to the parties making payment to the City, if they may be reasonably found and minus any reasonable administrative processing costs. Any undeliverable funds shall be retained by the City. (Ord. 1853 § 1, 2014; Ord. 1845 § 1, 2014. Formerly 17.26.160)