Chapter 14.20
LATECOMER AGREEMENTS
Sections:
14.20.030 Rights, enforcement and nonliability of city.
14.20.060 Payment of assessment and removal of unauthorized connections or taps.
14.20.010 Purpose.
To establish a uniform process for the administration of latecomer agreements in conformance with Chapters 35.91 and 35.72 RCW, applied for after the effective date of the ordinance codified in this chapter, to reimburse developers who utilize private funds to construct a public street, or utility improvements that cost more than $100,000 as verified by the city public works director. The reimbursement shall be the pro rata share using a method of cost apportionment based on the benefit to the property owners for the cost of constructing and contract administration costs for said public improvements. Those properties determined to be within an assessment reimbursement area who did not contribute to the original cost of the project and subsequently developed their property within a 10-year period and at the time of development are not required to install similar improvements because they were provided by the original developer shall be required to enter into the latecomer agreement. The latecomer agreement shall be effective for a period no longer than 10 years after the final acceptance, by the city, of the constructed improvements. Upon the request of an affected property owner, the city council shall have discretion to authorize, or not authorize, latecomer agreements on a case-by-case basis. (Ord. 3259 § 1, 2005).
14.20.020 Definitions.
“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.
“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 city municipal codes.
“Assessment reimbursement area” means that area of all real property that may tap, drain to, or use street or utility system improvements that did not contribute to the original cost of said street or utility system improvements and that receives a special benefit from said improvements.
“Cost of construction (cost)” is the sum of the direct construction costs incurred to construct street and/or utility system improvements. The direct construction costs include, but are not limited to, all related design services, engineering, surveying, legal services, bonding costs, environmental mitigation, 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. Interest fees shall not be allowed to be included as a cost of construction. The cost of construction shall not include costs that will be reimbursed by other means, at the time of construction or development, such as impact fee credits or grants. Costs of construction that are eligible for impact fee credits and/or reimbursements shall be reduced by the amount of said impact fee credits and/or reimbursements.
“Development proposal” means the construction of any improvements requiring a building permit, a fill and grade permit, a utility permit or a right-of-way permit.
“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, acquisition of rights-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, pedestrian facilities, bike lanes, and traffic control devices, relocation and/or construction of street lights, traffic control devices, signage and other similar improvements.
“Public works director,” hereinafter referred to as “director,” means the director of the public works department or his/her designee.
“Utility system improvements” means public sewer and storm drainage 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 includes, but is not limited to the following:
A. Sewer system improvements, including but not limited to treatment plants, gravity mains, lift stations, force mains, and telemetry systems; and
B. Storm sewer system improvements, including, but not limited to water quality structures and systems, detention and retention facilities, and storm water collection and conveyance facilities. (Ord. 3259 § 1, 2005).
14.20.030 Rights, enforcement and nonliability of city.
A. The city reserves the right to refuse to enter into any latecomer agreement or to reject any application therefor. All applications for latecomer agreements shall be made on the basis that the applicant releases and waives any claims for liability of the city in establishment, enforcement or collection of latecomer agreements. The city shall not be responsible for locating any beneficiary or survivor entitled to benefits by or through latecomer agreements.
B. It shall be the obligation of the applicant for a latecomer agreement to take whatever authorized means are available to enforce payment of latecomer agreements and applicants are hereby authorized to take such actions. (Ord. 3259 § 1, 2005).
14.20.040 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 in Chapter 35.72 RCW) where the construction of such improvements are the result of a city of Mount Vernon ordinance or ordinances that require such improvements as a prerequisite to property development. Street system improvements constructed to comply with the city of Mount Vernon subdivision code, zoning code, concurrency code, comprehensive plan and Chapters 13.08, 13.12, 13.16, 13.20, 13.33 and 16.16 MVMC, are hereby declared to be prerequisites to further property development for the purpose of RCW 35.72.010. (Ord. 3259 § 1, 2005).
14.20.050 Process.
A. Construction of the improvements subject to a latecomer agreement cannot start until the process to establish the latecomer agreement has been completed. Once a latecomer agreement is requested, the property owner shall submit the following information to the director:
1. A legal description of the applicant’s property prepared by a licensed surveyor.
2. Legal descriptions of the properties within the assessment reimbursement area (also prepared by a licensed surveyor) with the names and addresses of the owners of each of the properties as shown on records from the Skagit County assessor’s office.
3. Two sets of labels containing the names and addresses of the property owners within the assessment reimbursement area.
4. Vicinity maps of the applicant’s property and the proposed improvements.
5. Map(s) identifying the proposed assessment reimbursement area and the location of the proposed street and/or utility system improvements.
6. Itemized cost estimate prepared by a licensed civil engineer for the cost of the proposed improvements.
7. The director may request more than one construction estimate in addition to the estimate prepared by a licensed civil engineer.
8. The applicant’s proposed allocation of costs along with a detailed description of the method used for their allocation, prepared by a qualified licensed engineer and/or appraiser.
B. Within 30 days of receiving an application for a latecomer agreement, the director shall provide the applicant written notice of whether the application is complete, and if incomplete, what must be done for the application to be considered complete. The applicant will have no more than 30 days from the date of the written notice to respond and to provide the information required to complete the application. If the applicant is not able to submit the required information within the 30-day period, the applicant shall provide the city with a written explanation of why they cannot provide the requested information within the 30 days. The director has the discretion to grant the applicant an extension of not more than 60 days to submit the required information.
C. The director will formulate an assessment reimbursement area based upon a determination of which parcels did not contribute to the original cost of the improvements and who, with a subsequent development proposal, would be required to install, tap, drain or use the improvements.
D. The director will use the information submitted to estimate the preliminary pro rata share of the costs. The director can utilize any method, or combination of methods, to allocate costs such as the front footage, number of units, square footage, the zone and termini method or other recognized methods reasonably calculated to equitably allocate the assessment. The director is not required to use the same method that the applicant proposes for the allocation of costs.
E. The preliminary determination of the assessment reimbursement area and assessments, along with language stating that the property owner has the right to request a public hearing before the city council within 20 days of the mailing of the preliminary determination to contest the preliminary assessment and/or assessment reimbursement area shall be forwarded via certified mail to the property owners of record, as shown on the records of the Skagit County assessor, within the proposed assessment reimbursement area. If any property owner requests a hearing in writing, within 20 days of the mailing of the preliminary determination, a hearing shall be held before the city council, notice of which shall be given to all affected property owners at least 10 days in advance of the council hearing. The city council’s ruling is determinative and final.
F. If a property owner within the assessment reimbursement area requests a hearing before the city council within 20 days of the mailing of the preliminary determination only the following shall be considered by the council:
1. Errors identified in the preliminary determination must be related to the cost, methodology for cost allocation or benefit to the property as described below:
a. Cost. If the benefiting property owner contests the construction costs they must provide a basis for the claimed discrepancy, such as an estimate from a contractor or other reliable source.
b. Cost Methodology. If the benefiting property owner contests the cost methodology used, the owner must show why it is not equitable and provide a suggested alternate method of assessment and the justification for its use in place of the recommended method.
c. Benefit. If a benefiting property owner contests benefit, they must demonstrate why a particular parcel will not receive the benefit.
2. The city council shall have sole discretion to authorize or not authorize the director’s preliminary determination of the assessment reimbursement area and/or assessments based the information that is required to be submitted pursuant to subsections (F)(1)(a), (b) and (c) of this section.
G. The preliminary determination of the director shall expire two years from the date it was issued if the applicant has not started construction on the improvements for the latecomer agreement.
H. Prior to commencing construction of the project, the applicant shall submit three competitive construction bids based upon city-approved plans to the city.
I. Upon completion of the project, a reasonable pro rata share of project costs shall be established by the director utilizing the allocation method used for the preliminary determination. The applicant shall submit to the director a final statement detailing the actual project costs along with as-built plans. All costs shall be accompanied by an invoice, receipt, or any other documentation that the director requests to verify the costs outlined by the applicant. The director shall certify that the improvements were constructed as planned and meet city standards. As long as the final assessment is less than 115 percent of the preliminary assessment, the properties within the assessment reimbursement area shall be notified, via certified mail, of the amount of the latecomer’s charges against their property and the date the latecomer agreement shall expire.
J. If the final assessment is 15 percent or more over the preliminary assessment, the director shall meet with the applicant to determine the reason(s) for the increased costs. A new notice shall be sent to the property owners within the assessment reimbursement area following the procedures outlined in subsections (E) and (F) of this section that will again allow property owners within the assessment reimbursement area to appear before the city council to contest the amount of the final assessment in the latecomer agreement that is greater than the original assessment.
K. The city council shall have sole discretion to authorize or not authorize the director’s final assessment of the assessment reimbursement area and/or assessments based the information that is required to be submitted pursuant to subsections (F)(1)(a), (b) and (c) of this section only if the final assessment is 15 percent or more over the preliminary assessment and only if a property owner requests a hearing before the city council within 20 days of receiving the new notice.
L. The latecomer agreement shall be recorded with the Skagit County auditor within 30 days of the final execution of the agreement. It shall be the sole responsibility of the applicant to record said agreement. A copy of the recorded agreement shall be supplied to the director.
M. Once recorded, the latecomer agreement shall be binding on owners within the assessment reimbursement area who are not party to the agreement.
N. The director shall forward to the city’s development services department a copy of the recorded latecomer agreement which contains the names, addresses and the Skagit County assessor’s parcel numbers of the properties within the assessment reimbursement area so this information may be entered into the department’s permitting system to help track latecomer agreements.
O. When the assessment for any property has been paid in full, the director shall record a certificate of payment with the Skagit County auditor that will release such property from the latecomer agreement.
P. Any collected funds unclaimed by developers after three years from the expiration of the latecomer agreement shall be returned to the parties who made the payment to the city. Any funds that are not able to be returned shall be placed in the appropriate utility and/or road fund. (Ord. 3427 § 3, 2008).
14.20.060 Payment of assessment and removal of unauthorized connections or taps.
A. The city shall not issue any type of development permit or grant permission to use water or sewer service facilities unless the city has received full payment of the assessment applicable to the property connecting to or using the street and/or utility system improvements constructed by the applicant that requested the latecomer agreement.
B. If improvements are made to a property, or if a property connects to a utility system improvement, without payment of an assessment otherwise due, and that property is located within the assessment reimbursement area, the amount of such assessment shall be a binding obligation upon the owner of record (and their successors) of the affected property.
C. 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. The city will pay the applicant for the latecomer agreement the amount due within 60 days of receipt of the payment.
D. 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. 3259 § 1, 2005).
14.20.070 Severability.
If any section, subsection, sentence, clause, phrase, or word of this chapter should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality thereof shall not affect the validity or constitutionality of any other section, subsection, sentence, clause, phrase, or work of the ordinance codified in this chapter. (Ord. 3259 § 1, 2005).