Chapter 12.70
STREET LATECOMER AGREEMENT
Sections:
12.70.040 Application for latecomer agreement.
12.70.050 Application – Review.
12.70.060 Preliminary determinations.
12.70.070 Preliminary determination notice.
12.70.080 Street latecomer agreement.
12.70.100 Construction – Final costs – Conveyance.
12.70.120 Payment of latecomer assessments – Remittance to developer.
12.70.140 Term of street latecomer agreement.
12.70.160 Enforcement of latecomer obligations.
12.70.170 Limitation of liability.
12.70.010 Purpose.
Pursuant to the authority conferred in Chapter 35.72 RCW, the purpose of this chapter is to encourage private and public construction of municipal street improvements by providing means for the recovery of the costs of construction through a charge to late users of the improvements who did not contribute to the costs thereof. [Ord. 19-17 § 2, 2017].
12.70.020 Definitions.
The definitions set forth in this section shall apply throughout this chapter.
“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 system improvements.
“Assessment reimbursement area” means that area which includes all parcels of real property adjacent to street system improvements constructed by a developer.
“Cost of construction” is the sum of the direct construction costs incurred to construct the street system improvements excluding city’s latecomer agreement charges and fees.
“Developer” means a property owner, entity or authorized agent of the property owner who has constructed street system improvements, where such improvements are a prerequisite for further development of real property owned by such entity or individual.
“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 public and private utilities as required by the city, relocation and/or installation of street lights, relocation and/or installation of signage, acquisition of road right-of-way, other government agency permit fees, testing services, inspection, plan review and approval, labor, materials, equipment rental, and contractor and/or subcontractor fees and charges in accordance with all applicable laws, ordinances and standards, including the city’s public works standards. The direct construction costs shall be prepared, stamped and signed by a Washington State licensed civil engineer, based on final invoices, receipts or other documents showing the amounts paid by the developer. The city will not accept written estimates in determining the direct construction costs. In the event of a disagreement between the city and the developer concerning the cost of the street system improvements, the city engineer’s determination shall be final.
“Engineer” means the city engineer or his/her designated representative.
“Latecomer agreement” means a written contract between the city and a developer(s) providing for the partial reimbursement of the cost of construction of street system improvements to the developer by owners of property who use the improvement but who did not contribute to the original cost of construction. The latecomer agreement shall be a standard agreement approved as to form and content by the city attorney.
“Public facilities construction agreement” means any agreement entered into by an individual or entity with the city for the purpose of constructing public street system improvements that are required by the city to be constructed as a prerequisite to the development of real property.
“Street system improvements” means public street 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, pedestrian facilities, storm drainage, bike lanes, traffic control devices, relocation and/or construction of public and private utilities as required by the city, relocation and/or installation of street lights, relocation and/or installation of signage, and other similar improvements. [Ord. 19-17 § 2, 2017].
12.70.030 Applicability.
This chapter is intended to apply to all street system improvements where the construction of such improvements is the result of city ordinances that require such improvements as a prerequisite to property development. Street system improvements constructed in order to comply with WRMC Titles 12, Streets, Sidewalks and Public Places; 16, Division of Land; 17, Zoning, or the comprehensive plan, are hereby declared to be prerequisites to further property development for the purpose of this chapter. [Ord. 19-17 § 2, 2017].
12.70.040 Application for latecomer agreement.
A. Any developer using private funds to construct street system improvements in the city 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 use the street system improvements made by the developer.
B. In addition to the latecomer application, the applicant must apply for and obtain a public facilities construction agreement and must meet all of the design standards and requirements applicable to street system improvements contained in the city’s ordinances.
C. The application for a latecomer agreement shall be made concurrently with an application for a public facilities construction agreement, but before the street system improvements proposed for construction are approved by the public works director or his/her designee. Acceptance by the city shall mean, for purposes of this section, the date the street system improvements are conveyed to the city by a deed of conveyance or other equivalent written documentation. Applications shall be made on forms prepared by the public works department and shall be accompanied by the city’s nonrefundable latecomer agreement application fee set forth in the city’s master fee schedule. The application shall contain the following information, which shall be prepared, stamped and signed by a state of Washington licensed civil engineer:
1. A legal description of the developer’s property.
2. A legal description of the properties within the developer’s proposed assessment reimbursement area together with the Benton County parcel number, name and address of the owner(s) of each property as shown in the records of the assessor’s office of Benton County.
3. Vicinity maps, 18 inches by 24 inches, prepared by a state of Washington licensed civil engineer or surveyor, depicting the developer’s property, the proposed improvements, and the proposed assessment reimbursement area.
4. Statement from a state of Washington licensed civil engineer containing an itemized estimate of the total projected direct construction costs.
5. The developer’s proposed allocation of the direct construction costs to the individual properties within the proposed assessment reimbursement area and the method used for such allocation.
D. Within 30 days of the public works department receiving the application for a latecomer agreement, the city engineer or his/her designee will 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 written notice to respond and provide the information required to complete the application or, if the applicant cannot submit the required information within the 30-day period, the applicant shall provide the city engineer a written explanation of why they cannot provide the information within the designated time period and a date that the requested information will be submitted. In his/her discretion, the city engineer may grant the applicant an extension of not more than 60 days to submit the required information. If the applicant fails to meet the foregoing time frame, the city engineer, in his/her discretion, may reject the application as untimely and incomplete.
E. The public works director may establish policies and procedures for processing applications and complying with the requirements of this chapter. [Ord. 19-17 § 2, 2017].
12.70.050 Application – Review.
A. The city engineer or his/her designee shall review all applications and shall approve the application if the following criteria are met:
1. The application is timely, complete and the latecomer agreement application fee has been paid; and
2. The city’s ordinance requires the proposed improvements to be constructed as a prerequisite to further property development; and
3. The proposed improvements fall within the definition of street system improvements as those terms are defined in this chapter; and
4. The proposed improvements are consistent with the city’s design standards, development regulations, comprehensive plan, and/or transportation plan.
B. In the event any of the above criteria are not met, the city engineer or his/her designee 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 city engineer or his/her designee shall be in writing. [Ord. 19-17 § 2, 2017].
12.70.060 Preliminary determinations.
Upon approval of a latecomer application, the city engineer or his/her designee shall formulate a preliminary assessment reimbursement area and preliminary assessment amount for each real property 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 improvements upon development or redevelopment.
B. A pro rata share of the cost of the street system improvements shall be allocated to each property 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. The city engineer or his/her designee shall, in his/her discretion, determine the method of assessment used to calculate the latecomer assessment. The fair pro rata share of the cost of the street system improvements attributable to the developer’s property shall be deducted from the cost of construction. [Ord. 19-17 § 2, 2017].
12.70.070 Preliminary determination notice.
A. The preliminary assessment reimbursement area and the preliminary assessment amounts formulated by the city engineer or his/her designee shall be sent by certified mail to the developer and 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 mailing the notice, request a hearing to be held before the city council to contest the preliminary assessment reimbursement area and/or preliminary assessment amounts. Notice of such hearing shall be given to the developer and all property owners within the preliminary assessment reimbursement area and the hearing before the city council shall be conducted as soon as is reasonably practical. City council is the final authority to establish the assessment reimbursement area and the assessment for each property within the assessment reimbursement area. The city council’s determination of the assessment area and the assessments shall be determinative and final.
C. In the event no written request for a hearing is received within the allotted time, the determination of the city engineer or his/her designee shall be final. [Ord. 19-17 § 2, 2017].
12.70.080 Street latecomer agreement.
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 city engineer or his/her designee shall prepare and give to the applicant a street latecomer agreement. The developer shall execute the street latecomer agreement and return it to the city clerk for city signatures. [Ord. 19-17 § 2, 2017].
12.70.090 Recording.
The provisions of the latecomer agreement shall not become effective as to any owner of real estate not a party thereto until it is recorded with the Benton County auditor, with notice to title of each property within the assessment reimbursement area. The city clerk shall record the latecomer agreement with the Benton County auditor within 30 days of final execution of the latecomer agreement; provided, that the developer shall have an independent duty to review the auditor’s records to confirm the latecomer agreement has been properly and timely recorded. Recording costs are separate from the latecomer agreement application fee and as such the developer shall be responsible to pay for all costs of recording the latecomer agreement with the Benton County auditor’s office. [Ord. 19-17 § 2, 2017].
12.70.100 Construction – Final costs – Conveyance.
A. After the latecomer agreement has been signed by all parties and all necessary permits and approvals, including a public facilities construction agreement, have been obtained, the applicant 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 city’s design and construction standards.
B. Within 120 days of completion of construction, the developer shall provide the city engineer with documentation of the actual cost of construction of the street system improvements and documentation by the applicant that all of such costs have been paid. The final cost of construction of the street system improvements shall be reviewed against the preliminary assessments established by the city. Upon showing of good cause, the latecomer agreement shall be modified to include cost overruns up to a maximum of 10 percent. In the event that the actual cost of construction is less than the original estimate by five percent or more, the city engineer or his/her designee shall recalculate the assessments, reducing them accordingly. For any revisions under this section, the city engineer or his/her designee shall cause a revised list of assessments to be recorded with the Benton County auditor, with notice to title on each property within the assessment reimbursement area.
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 street system improvements to the city, together with a maintenance bond for the improvements and any rights-of-way or 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. [Ord. 19-17 § 2, 2017].
12.70.110 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. Developer shall be responsible for providing the city with a maintenance bond for the improvements. [Ord. 19-17 § 2, 2017].
12.70.120 Payment of latecomer assessments – Remittance to developer.
A. Upon recording, the latecomer agreement and assessment shall be binding upon all properties located within the assessment reimbursement area. Assessments shall be paid to the city in lump sum. Assessments shall be paid prior to the development or redevelopment of property if at the time of development or redevelopment the property owner is not required to construct similar street improvements because they were already constructed by the developer. A building permit will not be issued until the assessment has been paid in full.
B. The city will pay over to the developer the latecomer amounts collected within 60 days of receipt less a five percent city administrative charge to cover the city’s administrative costs of collecting and dispersing latecomer reimbursement amounts.
C. When the assessment for any property has been paid in full, the city clerk shall provide a certificate of payment document that will release the property from the latecomer agreement. The property owner shall be responsible for recording the certificate of payment document with the Benton County auditor and payment of associated recording fees. [Ord. 19-17 § 2, 2017].
12.70.130 Segregation.
The city engineer or his/her designee shall, upon 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 segregation fee per the city’s master fee schedule. Recording costs are separate from the administrative segregation fee and as such the property owner shall be responsible to pay for all costs of recording the assessment segregation with the Benton County auditor’s office. [Ord. 19-17 § 2, 2017].
12.70.140 Term of street latecomer agreement.
A. For street system improvements, each latecomer agreement shall be valid for a maximum period of 15 years from the date of its recording, unless terminated as provided in subsection B of this section.
B. The city may terminate a latecomer agreement if the developer fails to commence or complete construction within the time and manner required in the public facilities construction agreement for the improvements. In the event of termination, the city clerk shall record a release of latecomer agreement with the Benton County auditor. [Ord. 19-17 § 2, 2017].
12.70.150 Appeal.
With the exception of the determination of the preliminary assessment reimbursement area and preliminary assessment as provided by WRMC 12.70.070, a developer or owner of record of property located within the assessment reimbursement area may appeal the interpretation, implementation, and/or decisions of the city engineer or his/her designee concerning any aspect of this chapter to Benton County superior court. The appeal must be filed within 20 days of the date of the action or decision being appealed. [Ord. 19-17 § 2, 2017].
12.70.160 Enforcement of latecomer obligations.
A. 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 enforceability of the latecomer agreement, or the amount(s) thereof against such persons or property. Nor will the offices of finances of the city be used for enforcement or collection of latecomer obligations beyond those duties specifically undertaken by the city herein. The city shall not be responsible for locating any beneficiary or survivor entitled to any benefits by or through a developer latecomer agreement.
B. Every two years from the date the latecomer agreement is executed, a developer entitled to reimbursement under this chapter shall provide the city clerk 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 developer 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 developer under the latecomer agreement. Such funds must be deposited in the street capital fund of the city. [Ord. 19-17 § 2, 2017].
12.70.170 Limitation of liability.
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 may not be held liable for failure to collect a latecomer agreement assessment unless the failure was willful and intentional. [Ord. 19-17 § 2, 2017].