Chapter 6.05
LATECOMER AGREEMENTS – STREET AND UTILITY
Sections:
6.05.010 Purpose.
6.05.020 Definitions.
6.05.030 Application for latecomer agreement.
6.05.040 Preliminary determinations.
6.05.050 Preliminary determination notice.
6.05.060 Latecomer agreement.
6.05.070 Construction – Final costs – Conveyance.
6.05.080 Recording of latecomer agreement.
6.05.090 Defective work.
6.05.100 Payment of assessment – Remittance to developer.
6.05.110 Segregation.
6.05.120 Removal of unauthorized connections or taps.
6.05.130 City fees and cost recovery.
6.05.140 Enforcement of latecomer obligations.
6.05.150 City participation authorized.
Prior legislation: Ord. No. 2532 and Code 1986, §§ 4.15.010 and 4.15.020.
6.05.010 Purpose.
The purpose of this chapter is to provide the conditions and procedures under which developers, including the city, who installed qualifying street system improvements or utility system improvements required as a prerequisite for future development and pursuant to the city’s development ordinances and policies, may be partially reimbursed for the expenses of such improvements by other property owners that did not contribute to these costs and receive a benefit from these improvements. The city is authorized to enter into latecomer agreements for these reimbursements pursuant to Chapters 35.72 and 35.91 RCW, as they now exist or are hereafter amended.
(Ord. No. 4356, § 2, 4-7-20)
6.05.020 Definitions.
The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
A. Adjacent means abutting on public roads, streets, rights-of-way, or easements in which street system improvements are installed or directly connecting to street system improvements through an interest in real property such as an easement or license.
B. Assessment means an equitable pro rata charge to be paid by an owner of property within the assessment reimbursement area for the cost of construction of street and/or utility system improvements made pursuant to a latecomer agreement.
C. Assessment reimbursement area means that area which includes all parcels of real property adjacent to street system improvements or likely to require connection to or service by utility system improvements constructed by a developer.
D. City administrative costs means all costs incurred by the city that are directly related to the drafting, execution, recording, and administration of the latecomer agreement, including any mailings to other property owners, any hearings before city council, as well as any costs and expenses incurred for attorneys or consultants. City administrative costs do not include permit fees or the application fee for the latecomer agreement.
E. Cost of construction means the sum of the direct construction costs incurred to construct the street and/or utility system improvements plus developer administrative costs and the city latecomer administrative costs. Direct construction costs include but are not limited to the actual labor and material construction costs incurred by the developer, reasonable engineering and surveying costs, bonding costs, environmental mitigation, relocation and/or new construction of private utilities as required by the city, and relocation and/or installation of street lights and signage.
F. Developer means the 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. As permitted by RCW 35.72.050 and 35.91.020, the city, or other public entity, may join with or be construed as a developer for the purpose of recovery of street or utility system improvement costs.
G. Developer administrative costs means all indirect costs incurred by the developer in the creation and execution of the latecomer agreement and managing the project, such as office supplies, mailings, clerical services, telephone expenses, accounting expenses, and project oversight. Developer administrative costs shall not exceed three percent of all direct construction costs.
H. Director means the city of Kent public works director, or his or her designee.
I. Latecomer agreement means a written contract between the city and one or more developers providing partial reimbursement for the cost of construction of street system improvements and/or utility system improvements to the developer by owners of property who would be required to construct these improvements and who did not contribute to the original cost of construction.
J. Latecomer fee or assessment means a charge collected by the city against a real property owner within the assessment reimbursement area who:
1. Connects to or uses the utility system improvement where fees are separately stated, or is a part of a connection fee or other fee for providing access to the city’s utility system; or
2. Receives a building or development permit for real property located adjacent to, or having access to, the street system improvement constructed under this chapter.
K. Street system improvements means public street and alley improvements made in existing or subsequently dedicated or granted rights-of-way or easements and any associated improvements including but not limited to such things as design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, pedestrian facilities, street lighting, bike lanes, and traffic control devices, relocation and/or construction of private utilities as required by the city, relocation and/or construction of street lights, traffic control devices, signage, and other similar improvements.
L. Utility system improvements means city-owned water, sewer, and storm drainage system improvements as defined by RCW 35.91.015, which shall include but not be limited to design, engineering, surveying, inspection, testing, and installation of improvements as required by the city, and includes but is not limited to the following, by utility type:
1. Water system improvements, including but not limited to such things as mains, valves, fire hydrants, telemetry systems, pressure reducing stations and/or valves, and other associated appurtenances;
2. Sewer system improvements, including but not limited to such things as gravity mains, lift stations, force mains, telemetry systems, and other associated appurtenances; and
3. Storm sewer system improvements, including but not limited to such things as water quality structures and systems, detention and retention facilities, and storm water collection and conveyance facilities.
(Ord. No. 4356, § 2, 4-7-20)
6.05.030 Application for latecomer agreement.
A. Applicants. Any developer using private funds to construct street system improvements and/or utility system improvements required as a prerequisite to further property development may apply to the city for a latecomer agreement in order to recover a pro rata share of the costs of construction from other property owners that will later connect to or use the street and/or utility system improvements constructed by the developer.
B. Application form and fee. An application for a latecomer agreement shall be submitted upon a form provided by the city and be accompanied by the application fee established by resolution by the city council.
C. Timing of application. The application for a latecomer agreement shall be made before the street and/or utility system improvements proposed for construction are approved by the city through the issuance of a civil construction or other applicable permit.
D. Application contents. The application shall contain the following information which shall be approved by a state of Washington licensed engineer or other appropriately licensed professional:
1. A legal description and vicinity map of the developer’s property.
2. A legal description of the properties within the developer’s proposed assessment reimbursement area, together with the names and addresses of the owners of such property as shown on the records of the assessor’s office of King County.
3. The developer’s proposed assessment reimbursement area and general location of the system improvements to be included.
4. The developer’s proposed allocation of the costs of construction to the individual properties within the proposed assessment reimbursement area and the method used for such allocation.
5. Statement from a state of Washington licensed contractor or civil engineer containing an itemized estimate of the total projected cost of construction.
6. Such other information as the director determines would be relevant in considering the application.
E. Application review.
1. The director shall review all applications and shall approve the application if following criteria are met:
a. The application is timely, complete and the application fee has been paid;
b. The city’s ordinances require the proposed improvements to be constructed as a prerequisite to further property development;
c. The proposed improvements fall within the definition of street and/or utility system improvements as those terms are defined in this chapter; and
d. The proposed improvements are consistent with the City of Kent Design and Construction Standards, design guidelines, development regulations, comprehensive plan, comprehensive sanitary sewer plan, comprehensive water plan, storm water master plan, and transportation master plan.
2. If any of the above criteria are not met, the director shall either condition approval as necessary in order for the application to conform to such criteria, or deny the application. The final determination of the director shall be in writing.
3. The director may establish policies and procedures for processing applications and complying with the requirements of this chapter and applicable state law.
(Ord. No. 4356, § 2, 4-7-20)
6.05.040 Preliminary determinations.
Upon approval of a latecomer application, the director shall formulate a preliminary assessment reimbursement area and preliminary assessment amount for each real property parcel included in the preliminary assessment reimbursement area as follows:
A. For street system improvements, the assessment reimbursement area shall be formulated based upon a determination of which parcels adjacent to the street system improvements would require similar street system improvements upon development or redevelopment.
B. For utility system improvements, the assessment reimbursement area shall be formulated based upon a determination of which parcels in the proposed area would require similar utility system improvements upon development or redevelopment or would be allowed to connect to or use the utility system improvements.
C. A pro rata share of the cost of the improvements shall be allocated to each parcel included in the assessment reimbursement area based upon the benefit to the property owner. The method or methods used to calculate the allocation of the assessment may be either front footage, number of units, square footage, zone and termini method, or other equitable method, as determined by the city.
(Ord. No. 4356, § 2, 4-7-20)
6.05.050 Preliminary determination notice.
A. The city shall send the preliminary assessment reimbursement area and the preliminary assessment formulated by the director, including the preliminary determination of area boundaries, assessments, and a description of the property owner’s rights and options, by certified mail to the property owners of record within the preliminary assessment reimbursement area.
B. The developer or any property owner within the preliminary assessment reimbursement area may, in writing within 20 days of the date of mailing 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 preliminary assessment reimbursement area and the hearing shall be conducted as soon as is reasonably practical. The city council is the final authority to establish the assessment reimbursement area and the assessment for each property within the assessment reimbursement area.
C. If no written request for a hearing is received as required, the determination of the director shall be final.
(Ord. No. 4356, § 2, 4-7-20)
6.05.060 Latecomer agreement.
A. Based upon the preliminary assessment reimbursement area and the 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 director shall prepare and give to the developer a latecomer agreement. A separate latecomer agreement shall be executed for each of the following categories of improvement, as applicable: street system improvements and utility system improvements.
B. Each agreement shall include a provision requiring that, every two years from the date the agreement is executed, the developer entitled to reimbursement under this section shall provide the city with information regarding the current contact name, address, and telephone number of the person, company, or partnership that originally entered into the agreement. If the developer fails to comply with the notification requirements within 60 days of the specified time, then the city may collect any reimbursement funds owed to the developer under the agreement. The funds collected under this subsection shall be deposited in the capital expenditure account of either the city’s utility fund or street fund, as appropriate.
C. The term of latecomer agreements is as follows:
1. For street system improvements, each latecomer agreement shall be valid for a period not to exceed 15 years from the effective date of the agreement.
2. For utility system improvements, each latecomer agreement shall be valid for a period not to exceed 20 years from the effective date of the agreement.
D. The city may terminate a latecomer agreement if the developer fails to commence or complete construction within the time and manner required in the permits for the improvements. If the agreement is terminated, the city shall record a release of latecomer agreement in the King County recorder’s office.
(Ord. No. 4356, § 2, 4-7-20)
6.05.070 Construction – Final costs – Conveyance.
A. The developer shall construct the improvements and, upon completion, request final inspection and acceptance of the improvements by the city, subject to any required obligation to repair defects. All construction, inspection, and testing shall conform to the Kent City Code and City of Kent Design and Construction Standards.
B. Within 120 days of completion of construction, the developer shall provide the city with documentation of the actual costs of the improvements and a certification by the applicant that all of such costs have been paid. The city shall use this information to finalize the assessment paid by owners within the assessment reimbursement area, which will become part of the latecomer agreement recorded in accordance with KCC 6.05.080.
C. After the requirements of subsections (A) and (B) of this section have been satisfied, the developer shall provide the city with an appropriate deed of conveyance or other equivalent written document transferring ownership of the improvements to the city, together with any easements needed to ensure the city’s right of access for maintenance of the improvements. Title to the improvements shall be conveyed to the city clear of all encumbrances.
D. No connection to, or other use of, the improvements will be allowed or permitted until the city has officially accepted the construction and title to the improvements has been conveyed to the city.
(Ord. No. 4356, § 2, 4-7-20)
6.05.080 Recording of latecomer agreement.
A. The provisions of the latecomer agreement shall not become effective as to any owner of real estate not a party to the agreement until it is recorded with the King County recorder’s office. For a utility latecomer agreement, recording must be prior to the time that the owner of the real estate taps into or connects to water or sewer facilities.
B. The city shall file the fully executed latecomer agreement in the official property records of King County within 30 days of final execution; provided, that the developer shall have an independent duty to review the King County recorder’s office records to confirm that the latecomer agreement has been properly and timely recorded.
(Ord. No. 4356, § 2, 4-7-20)
6.05.090 Defective work.
The developer shall be responsible for all work found to be defective within one year after the date of acceptance of the improvements by the city. Nothing in this chapter shall preclude the director from requiring a performance bond for the street or utility system improvements as authorized for such improvements within the Kent City Code or City of Kent Design and Construction Standards.
(Ord. No. 4356, § 2, 4-7-20)
6.05.100 Payment of assessment – Remittance to developer.
A. Upon recording, the latecomer agreement shall be binding upon all parcels located within the assessment reimbursement area who are not party to the agreement and did not contribute to the original cost of the utility system improvements and/or street system improvements. Payments shall be paid to the city in one lump sum as follows:
1. Assessments for street system improvements shall be paid prior to the development or redevelopment of property.
2. Assessments for utility system improvements shall be paid prior to connection to or use of the utility system improvements.
B. The city will pay over to the developer the amounts collected less any unpaid city administrative costs within 60 days of receipt.
C. When the assessment for any property has been paid in full, the director shall issue a certification of payment that will release such property from the latecomer agreement which may be recorded by the owner.
D. The latecomer assessment shall be in addition to the usual and ordinary charges, including connection charges, tap charges, system development charges, and any other fees or charges which must be paid by persons applying for city services.
(Ord. No. 4356, § 2, 4-7-20)
6.05.110 Segregation.
The director shall, upon the request of any property owner within the assessment reimbursement area, segregate the assessment. Any request for to segregate the assessment must be submitted before the application for a lot line adjustment or subdivision. The request shall include a map showing the proposed subdivision of property, including legal descriptions and the proposed cost segregation based on the original method of assessment. The assessment shall only be segregated if the lot line adjustment or subdivision is completed. The property owner seeking segregation of the assessment shall pay an additional review fee as established by resolution by the city council.
(Ord. No. 4356, § 2, 4-7-20)
6.05.120 Removal of unauthorized connections or taps.
Whenever any tap or connection is made into any utility improvement without payment of the assessment being made as required by this chapter, the director is authorized to remove and disconnect, or cause to be removed and disconnected, such unauthorized tap or 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 connection is located shall be liable for all costs and expenses of any type incurred to remove, disconnect, and dispose of the unauthorized tap or connection.
(Ord. No. 4356, § 2, 4-7-20)
6.05.130 City fees and cost recovery.
The developer shall pay the following fees:
A. Application fee. The application fee as set forth in KCC 6.05.030, payable at the time the application is submitted.
B. City administrative costs. The developer shall reimburse the city for its administrative costs, as defined in KCC 6.05.020(D). This shall be paid prior to and as a condition of the recording of the latecomer agreement.
C. Recording fee. For every separate parcel of property within the developer’s assessment reimbursement area, the city shall charge a recording fee in accordance with fees charged by the King County recorder’s office. This fee shall be paid as part of the city administrative costs prior to and as a condition of the recording of the latecomer agreement.
(Ord. No. 4356, § 2, 4-7-20)
6.05.140 Enforcement of latecomer obligations.
A. Nothing in this chapter is intended to create a private right of action for damages against the city for failing to comply with the requirements of this chapter. The city, its officials, employees, or agents may not be held liable for failure to collect a latecomer assessment unless the failure was willful or intentional.
B. In processing and imposing obligations in this chapter for reimbursement of developers, the city in no way guarantees payment of assessments, or enforceability of assessments, or enforceability of the latecomer agreement, 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 assessments 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 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 benefits by or through a latecomer agreement.
C. If the developer fails to comply with the notification requirements set forth in KCC 6.05.050 and within the latecomer agreement within 60 days of the specified time, then the city may collect any reimbursement funds owed to the developer under the latecomer agreement. Such funds must be deposited in the capital fund of the city.
(Ord. No. 4356, § 2, 4-7-20)
6.05.150 City participation authorized.
As an alternative to financing projects under this chapter solely by a developer, the city may join in the financing of improvement projects and may be reimbursed in the same manner as the developer who participates in the projects. As another alternative, the city may create an assessment reimbursement area on its own initiative, without the participation of a private property owner or developer, finance the costs of the street or utility improvements, and become the sole beneficiary of the reimbursements that are contributed. The city will only seek to be reimbursed for the costs of improvements that benefit that portion of the public who will use the improvements within the assessment reimbursement area established pursuant to state law. No costs for improvements that benefit the general public may be reimbursed.
(Ord. No. 4356, § 2, 4-7-20)