Chapter 15.08
LATECOMER AGREEMENTS
Sections:
15.08.030 Mandatory requirements for latecomer agreements.
15.08.040 Effect of latecomer agreement – Payment must be made prior to connection.
15.08.050 Complete application for latecomer agreement.
15.08.060 Public works director’s review of application.
15.08.070 Notice of public hearing.
15.08.080 Approval and acceptance of water and/or sewer facilities.
15.08.090 Elements of latecomer agreement.
15.08.110 Recording of latecomer agreement.
15.08.120 City or county participation in latecomer agreements.
15.08.010 Purpose.
The purpose of this chapter is to implement Chapter 35.91 RCW and to describe the process for a developer, property owner, a county or the city of Pacific to obtain a latecomer agreement, in order so that the developer, property owner, county or city which constructs certain water and/or sewer facilities may be reimbursed by other property owners who subsequently hook up to the water and/or sewer facilities. (Ord. 1977 § 5, 2018).
15.08.020 Definitions.
The definitions set forth in this section shall apply throughout this chapter:
A. “Cost of construction” means the cost incurred by the owner/developer for design, acquisition for right-of-way and/or easements, permit and plan review fees, and construction (including materials and installation), as required in order to install the water and/or sewer facilities in accordance with all applicable laws, ordinances and standards, including the city’s public works standards. The cost of construction shall be documented in writing by the developer on final invoices or other documents showing the amounts paid by the developer/owner. The city will not accept written estimates in determining the cost of construction. In the event of a disagreement between the city and the developer/owner concerning the cost of the water and/or sewer facilities, the city public works director’s decision shall be final.
B. “Developer” or “owner” means a property owner or authorized agent of the property owner who has constructed a water and/or sewer facility, and desires a latecomer agreement under the terms and conditions set forth in this chapter. The city or the county may be a “developer” or “owner” under this chapter.
C. “Latecomer agreement” means a written contract between the city and a developer providing for the partial reimbursement of the cost of constructing the water and/or sewer facilities, as authorized under Chapter 35.91 RCW. The latecomer agreement shall be approved as to form by the city attorney. Where the city constructs water or sewer facilities under a latecomer agreement, the agreement may provide for the total reimbursement of the cost of construction of the water and/or sewer facilities.
D. “Latecomer fee” means a charge collected by the city, whether separately stated or as part of a connection fee for providing access to the city’s water and/or sewer system, against a real property owner who connects to, taps into or uses a water or sewer facility subject to a latecomer agreement created under this chapter and Chapter 35.91 RCW.
E. “Latecomer” means a property owner not a party to a duly executed and recorded latecomer agreement, owning property in the area benefited by such agreement, who did not contribute to the original cost of the facilities, who seeks to connect to the water and/or sewer facilities constructed under the latecomer agreement within the time frame established in the agreement, and who may only do so by making payment to the city of his/her pro rata share of the cost of construction.
F. “Water or sewer facilities” means storm, sanitary, or combination sewers, pumping stations and disposal plants, water mains, hydrants, reservoirs or appurtenances. (Ord. 1977 § 5, 2018).
15.08.030 Mandatory requirements for latecomer agreements.
At the owner’s request, the city must contract with the owner of real estate for the construction or improvement of water or sewer facilities that the owner elects to install solely at the owner’s expense. However, the city is only required to enter into such a contract if all of the following conditions are satisfied:
A. Construction of the water or sewer facility must be according to plans and specifications approved by the city; and
B. Inspection and approval of the water or sewer facility must be completed by the city; and
C. The water or sewer facility must be transferred to the city at no cost following acceptance of the water or sewer facility; and
D. Full compliance with the owner’s obligations under the contract and with the municipality’s rules and regulations; and
E. Provision of sufficient security to the municipality to ensure completion of the water or sewer facility and other performance under the contract; and
F. Payment by the owner to the municipality of all of the municipality’s costs associated with the water or sewer facility including, but not limited to, engineering, legal, and administrative costs has been made; and
G. All contracts and costs related to the water or sewer facility have been verified; and
H. The latecomer agreement must be for the construction of water and/or sewer facilities in locations where the city’s ordinances require such facilities to be improved or constructed as a prerequisite to further property development; and
I. The water and/or sewer facilities to be improved or constructed must be located within the city’s corporate limits or within 10 miles of the city’s corporate limits; and
J. If a county is a party to the latecomer agreement, the water and/or sewer facilities may not be located outside the county; and
K. The latecomer agreement shall meet all of the conditions required by the city under this chapter and shall be filed and recorded with the county auditor; and
L. The water and/or sewer facilities must be consistent with all applicable comprehensive plans, development regulations and public works standards of the city through which the facilities will be constructed or will serve; and
M. The sewer and/or water facilities to be constructed or improved must be included in the city’s comprehensive plan. Unless the city provides written notice to the owner of its intent to request comprehensive plan approval for the facilities, the owner must request comprehensive plan approval for the water and/or sewer facility; and
N. The owner shall submit the total cost of the water or sewer facility to the city, within 120 days of the completion of the water or sewer facility, so that the city may use this information as the basis for determining the reimbursements by future users who benefit from the water or sewer facility, but who did not contribute to the original cost of the water or sewer facility; and
O. Any other requirement imposed by Chapter 35.91 RCW. (Ord. 1977 § 5, 2018).
15.08.040 Effect of latecomer agreement – Payment must be made prior to connection.
A person, firm or corporation may not be granted a permit or be authorized to connect, tap into, or use any such water or sewer facilities or extensions subject to a latecomer agreement during the period of time prescribed in the latecomer agreement without first paying to the city, in addition to any and all other costs and charges made or assessed for such connection, tap, or use, for the water lines or sewers constructed in connection therewith, the amount required by the provisions of the applicable latecomer agreement. All amounts received by the city shall be paid to the developer/owner within 60 days after the receipt thereof according to the terms of the latecomer agreement. Whenever any tap or connection is made into any water or sewer facilities subject to a latecomer agreement without such payment having first been made, the city council may, in addition to seeking payment from the property owner, authorize the removal or cause to be removed such unauthorized tap or connection and all connecting pipe or appurtenances located in the facility right-of-way, and dispose of unauthorized material so removed, without any liability whatsoever. (Ord. 1977 § 5, 2018).
15.08.050 Complete application for latecomer agreement.
An application for a latecomer agreement shall be made on a form provided by the city and be accompanied by:
A. The application fee shall be set by council resolution;
B. Recorded drawings stamped by a Washington State licensed engineer or land surveyor, including an electronic copy in AutoCAD format, version as specified by the public works department;
C. An acknowledgment that within 120 days of the completion of the water and/or sewer facility, the owner must submit a statement of total cost of the water and/or sewer facility or the agreement will be void. This statement of total costs must be in the form of an itemized and quantified list of costs of construction, prepared, stamped and signed by a Washington State licensed civil engineer;
D. An 18-inch by 24-inch scaled drawing stamped by either a Washington State licensed civil engineer or land surveyor showing the water and/or sewer facility size, location and the proposed areas potentially encumbered by the latecomer agreement, including dimensions, county identification number of each tax parcel included therein, the size of the parcel, useful elevations as deemed necessary by the city for determining benefit, all existing utility services and appurtenances. The map must also include the method proposed to be used by the developer to determine the assessment, i.e., frontage square footage and zone and termini;
E. A separate legal description for each tax parcel within the benefited area, an 18-inch by 24-inch vicinity map showing tax lot numbers and dollar amounts proposed to be assessed on each lot;
F. A request for a comprehensive plan approval for a water or sewer facility (if required);
G. Information provided by the owner to demonstrate that the water and/or sewer facilities will be installed in locations where the city’s ordinances require the facilities to be improved or constructed as a prerequisite to further property development;
H. A list of the names and addresses of all owners of property in the latecomer agreement reimbursement area who would pay the pro rata share to the owner; and
I. Such other information as the public works director determines is necessary to properly review the application. (Ord. 1977 § 5, 2018).
15.08.060 Public works director’s review of application.
A. Request by Owner to City. The owner must submit a request for a latecomer agreement prior to approval of the water or sewer facility by the city. The request must include the materials necessary for a complete application as described in PMC 15.08.050.
B. Public Works Director’s Recommendation. The public works director shall review the request and application materials in order to make a recommendation to the city council. The director shall address the following matters in any recommendation:
1. Because a latecomer agreement is only required in locations where the city’s ordinances require the facilities to be improved or constructed as a prerequisite to further property development, the director shall identify the location of the proposed water and/or sewer facilities and the specific citation to the code provisions requiring such improvement/construction;
2. The director shall state whether the facilities to be improved or constructed are within the city’s corporate limits or within 10 miles of the city’s corporate limits;1
3. The director shall state whether the facilities to be improved or constructed are shown on the city’s approved comprehensive plan (or whether they are required to be shown on the comprehensive plan);
4. The director shall review the plans and specifications for the water and/or sewer facilities and determine whether they have been constructed and inspected in accordance with the city’s codes, development regulations and/or public works standards;
5. The director shall determine whether the owner has provided sufficient security to the city to ensure completion of the water and/or sewer facility and other performance under the proposed latecomer agreement;
6. The director shall determine whether the owner has paid for all of the city’s costs associated with the water or sewer facility, including, but not limited to, engineering, legal and administrative costs;
7. The director shall verify and approve all contracts and costs related to the water and/or sewer facility and ensure that the total cost of the water and/or sewer facility has been timely submitted to the city (within 120 days of completion);
8. The director shall ensure that the necessary documentation and arrangements have been made for the transfer of the water and/or sewer facilities to the city upon acceptance by the city;
9. The amount of the pro rata share to be paid under the latecomer agreement shall be recommended by the owner, so that each property within the latecomer benefited area pays a pro rata share of the costs of the improvements. The methodology utilized in calculating the amount of the pro rata share shall be the responsibility of the owner, subject to review and approval by the city. (Ord. 1977 § 5, 2018).
15.08.070 Notice of public hearing.
A. If the public works director determines that the application for the latecomer agreement meets the requirements for approval as set forth in this chapter, the city clerk shall issue notice of a public hearing on the proposed latecomer agreement. This notice shall include:
1. The name of the developer/owner/applicant for the latecomer agreement;
2. A description of the water and/or sewer facilities and their location;
3. A map of the latecomer agreement boundaries;
4. The preliminary estimate of the latecomer pro rata share.
B. The city clerk shall publish the public notice and also send individual notice with the information required by this section to the property owners on the list provided by the owner/applicant as the owners of property within the latecomer reimbursement area, and who would pay the pro rata share reimbursement under the latecomer agreement. The notice to these property owners shall be sent by first-class and certified mail, return receipt requested, not less than 21 days prior to the date set for the public hearing. (Ord. 1977 § 5, 2018).
15.08.080 Approval and acceptance of water and/or sewer facilities.
Upon completion of the water and/or sewer facilities by the owner in accordance with the approved plans and specifications, the owner shall provide the city with a bill of sale for the facilities including all warranties and the city council shall approve/accept the facilities. All further maintenance and operation costs, except those covered by warranty, shall be borne by the city. (Ord. 1977 § 5, 2018).
15.08.090 Elements of latecomer agreement.
The city’s form latecomer agreement shall be provided to the owner for review and signature prior to the public hearing. No latecomer agreement shall be scheduled for a public hearing unless it is signed by the owner. The standard latecomer agreement form shall include:
A. Standard contract clauses;
B. A provision requiring that owners of property within the latecomer reimbursement area and who benefit from the water and/or sewer facility constructed by the owner pay their fair pro rata share for such facilities, as set forth in the latecomer agreement, when they connect to or tap into such facilities;
C. A provision stating that no permits or authorizations allowing any use or connections to such water and/or sewer facilities will be granted by the city, unless the fair pro rata share is paid to the city in the amount required by the latecomer agreement;
D. A provision requiring that the amounts received by the city under the latecomer agreement shall be paid out to the owner within 60 days after receipt;
E. A provision stating that, if any connection or use is made of such water and/or sewer facilities without payment first being made, the city may enforce payment of the latecomers fee or remove or cause to be removed the unauthorized connection located in the facility right-of-way and that the city may dispose of same without any liability whatsoever;
F. A provision requiring that every two years from the date the agreement was executed, the developer/owner entitled to reimbursement 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 latecomer agreement. If the owner fails to comply with the notification requirements of this subsection within 60 days of the specified time, then the city may collect any reimbursement funds owed to the owner under the agreement. The funds collected under this subsection must be deposited in the capital fund of the city;
G. A provision requiring that the latecomer agreement be recorded against the properties in the latecomer reimbursement area in the office of the county auditor after approval and execution by the city;
H. A provision requiring that the city shall pay the pro rata reimbursement to the owner shall be for 20 years (or a longer period if affected by a moratorium, phasing ordinance, concurrency ordinance or other governmental action which prevents making application for, or approval of, any new development within the reimbursement area for a period of six months or more). If any latecomer agreement is extended as required by RCW 35.91.020(4), the agreement extension shall be recorded against the affected properties and additional notice shall be provided to the property owner subject to the reimbursement obligations. (Ord. 1977 § 5, 2018).
15.08.100 Public hearing.
A. The city council shall hold a public hearing on the proposed latecomer agreement. It shall consider the recommendation of the director, the application materials and testimony by the public during the public hearing. Thereafter, the council shall make findings and conclusions to support its decision on the following:
1. Whether all of the requirements of this chapter and Chapter 35.91 RCW have been satisfied; and
2. Whether the owner has demonstrated that the proposed latecomer fee to be charged by the city under the latecomer agreement is a fair pro rata share of the cost of the facilities to which the latecomers did not contribute.
B. The owner may propose any method for determining the pro rata share. For example, the method of assessment permitted for local improvement district assessment, including, but not limited to, the front-foot method, the zone and termini method, and square footage method, may be proposed. The city may, in its discretion, determine the method for determining the pro rata share used to calculate the latecomer fee and the city’s decision on the method shall be final. The fair pro rata share of the cost of the water and/or sewer facilities attributable to the developer’s/owner’s property shall be deducted from the cost of construction.
C. If the council makes findings that the requirements of this chapter have been satisfied, the council shall approve the latecomer agreement. (Ord. 1977 § 5, 2018).
15.08.110 Recording of latecomer agreement.
The latecomer agreement shall be recorded with the county auditor against all of the properties in the latecomer reimbursement area, as determined by the city council. The costs of such recording shall be paid by the owner. (Ord. 1977 § 5, 2018).
15.08.120 City or county participation in latecomer agreements.
A. If authorized by ordinance or contract, the city or county may participate in financing water or sewer facilities development projects that are authorized and improved or constructed in accordance with this chapter. Unless otherwise provided by ordinance or contract, the city or the county participating in the financing of water or sewer facilities improved or constructed under this chapter:
1. Shall have the same rights to reimbursement as owners of real estate who make contributions as authorized under this section; and
2. Is entitled to a pro rata share of the reimbursement based on the respective contribution of the owner and the city/county.
B. Except as otherwise provided in this chapter, the city or county seeking reimbursement from an owner of real estate subsequently connecting to the water and/or sewer facilities constructed under this section is limited to the dollar amount authorized in subsection C of this section. This does not prevent the city or county from collecting amounts for services or infrastructure that are additional expenditures not subject to the ordinance, contract or agreement, nor does it prevent the collection of fees that are reasonable and proportionate to the total expenses incurred by the city or county in complying with this section.
C. To the extent that it may require in the performance of the latecomer agreement, the city or county may install the water or sewer facilities in and along the city or county streets in the area to be served as hereinabove provided, subject to reasonable requirements as the manner of occupancy of the streets as the city or county may by resolution provide. (Ord. 1977 § 5, 2018).
15.08.130 No city liability.
Nothing in this chapter is intended to create a private right of action for damages against the city or any municipality 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 fee unless the failure was willful or intentional. Failure of the city to comply with the requirements of this chapter does not relieve the city of any future requirements to comply with this chapter. (Ord. 1977 § 5, 2018).
See PMC 15.08.120 for limitations on latecomer agreements where the county is a party.