CHAPTER 5
LATECOMER’S AGREEMENTS
SECTION:
9-5-1: Authority
9-5-2: Application
9-5-3: Preliminary Notice Of Latecomer’s Agreement And Appeal Rights
9-5-4: Preliminary Approval
9-5-5: Final Latecomer’s Agreement
9-5-6: Execution, Recording And Notice
9-5-7: Contract Finality
9-5-8: Title To Improvement And Assignment Of Benefit
9-5-9: Tender Of Fee
9-5-10: Release Of Assessment
9-5-11: Term Of Life
9-5-12: Fees
9-5-13: City Not Responsible
9-5-14: Improvements Constructed By Developer
9-5-15: Interest
9-5-16: Segregation And Relief Of Latecomer’s Fees (Rep. by Ord. 4723)
9-5-1 AUTHORITY:
The City has the discretionary power to grant latecomer’s agreements to developers and owners for the reimbursement of a pro rata portion of the original costs of water systems, sanitary sewer systems, storm water drainage systems and street improvements including signalization and lighting. The authority to approve a latecomer’s agreement is vested in the City Council. (Ord. 4443, 3-28-94)
9-5-2 APPLICATION:
Application for a latecomer’s agreement shall be made thirty (30) days prior to issuance of the construction permit. Application may be by letter to the Mayor and City Council requesting a latecomer’s agreement, or upon forms prepared by the Public Works Department. Any application for a latecomer’s agreement shall contain the following information:
A. Legal description of applicant’s property.
B. Legal description of the benefited properties.
C. Vicinity maps of applicant’s property, benefiting properties and the location of the improvement.
D. Estimated cost data and inventory for the improvements.
E. Proposed pro rata share of the cost of the improvement to be borne by the benefiting properties, and a proposed method of assessment of that pro rata share to the individual benefiting properties.
F. Payment of full amount of nonrefundable processing fee pursuant to RMC 4-1-180A. (Ord. 4443, 3-28-94; amd. Ord. 4723, 5-11-98; Ord. 5450, 3-2-09)
9-5-3 PRELIMINARY NOTICE OF LATECOMER’S AGREEMENT AND APPEAL RIGHTS:
The Public Works Department shall determine the preliminary latecomer’s area boundaries and draft the legal description of the latecomer’s boundary and a preliminary latecomer’s boundary map. The City Clerk shall mail a notice to all owners of record of property within the latecomer’s boundary and to the developer or holder of the latecomer’s agreement. The notice shall include an approximation of the preliminary assessment, the proposed latecomer’s boundary map and the description of the property owners’ rights and options to participate in the latecomer’s agreement. This preliminary notice form will not be recorded with King County. The property owners may, upon payment of the seventy five dollar ($75.00) appeal fee, request an appeal hearing before the City Council within twenty (20) days of the mailing. Appeals must adhere to the criteria established under Section 9-5-5C of this Chapter but will be limited to the issue of whether or not a specific property should be included in the latecomer’s area. The City Council, by ordinance or voice vote, may delegate the Hearing Examiner or other hearing officer to hold the requisite public hearing and establish a record, together with a recommendation for the City Council. The City Council’s ruling is determinative and final. (Ord. 4443, 3-28-94; Ord. 5450, 3-2-09)
9-5-4 PRELIMINARY APPROVAL:
A. The City Council may grant preliminary approval for a latecomer’s agreement based upon the information contained in the request for a latecomer’s agreement and any input from the Administrator, or the City Council may request further information from the applicant and/or the Administrator, or the City Council may deny the preliminary latecomer’s agreement. As part of any preliminary approval, the Council shall indicate the duration for which the latecomer’s will be approved, after completion of the improvements, which approval period shall not be more than fifteen (15) years. No extensions will be granted beyond the period of time established by City Council.
B. Following preliminary approval by the City Council, the holder of the latecomer’s agreement shall submit to the Administrator any further information requested by the Administrator or the City Council. (Ord. 4443, 3-28-94)
9-5-5 FINAL LATECOMER’S AGREEMENT:
A. Preparation of Proposed Final Assessment Roll: Following construction, the Public Works Department shall prepare a final proposed latecomer’s agreement which will include a legal description and a map of the latecomer’s boundary. The cost of the improvements will be spread among the property owners based upon their pro rata share of said costs. The costs will become payable upon the issuance of a City permit authorizing the benefiting property owner(s) to construct improvements that would allow the user(s) property to derive direct benefit from these facilities. The method of assessment to be used will be one or more of the following methods, unless otherwise approved or directed by the City Council:
1. Front foot method.
2. Zone front foot method.
3. Square footage method.
4. Trip generation (traffic) method.
5. Other equitable method, as determined by the City.
6. Any combination of the above methods.
The method(s) used and the dollar amount(s) will be included in the final latecomer’s agreement. (Ord. 5450, 3-2-09)
B. Final Notice of Latecomer’s Agreement: The City Council receives the final latecomer’s agreement and if the agreement is approved, directs the staff to send out notices of the latecomer’s potential assessment and the right to appeal. The City Council retains the right to rule on the final action. Following Council approval of the final latecomer’s agreement, the City Clerk shall mail a notice to all owners of record of property within the latecomer’s boundary and to the developer or holder of the latecomer’s agreement. The notice shall include the final assessment per unit charge, the legal description and a map of the latecomer’s boundaries, and the description of the property owners’ rights and options to participate in the latecomer’s agreement.
C. Appeal:
1. Within twenty (20) days of the date of the mailing, any property owner may submit an appeal in writing to the City Council, c/o City Clerk. An appeal must include a statement of claimed errors concerning the proposed assessment, and must be accompanied by a seventy five dollar ($75.00) nonrefundable fee. Errors which are not set forth in writing and which do not adhere to the criteria listed below will not be considered.
2. Objections by a benefiting property owner to the recording of a potential assessment against their property does not constitute a valid appeal.
3. Errors identified in an appeal must be related to cost, methodology for cost distribution, or benefit to the property as described below:
a. Cost: If the benefiting property owner contests these costs, he or she must provide a basis for the claimed discrepancy, such as an estimate from a contractor or other reliable source. (Amd. Ord. 4890, 2-5-01)
b. Costs Methodology: If the benefiting property owner contests the cost methodology used, they have to show why it is not equitable and provide their suggested alternate method of assessment and the justification for its use in place of the staff recommended method.
c. Benefit: If a benefiting property owner contests benefit, he or she must provide a statement or documentation on why a particular parcel has no future potential benefit. (Amd. Ord. 4890, 2-5-01)
4. Upon receipt of an appeal and the required fee, the City Clerk shall transmit the appeal and the official file to the City Council. The City Council may delegate to the Hearing Examiner the responsibility to hold a public hearing, establish the record and provide a written report containing a recommendation to the City Council. Following the public hearing, the Hearing Examiner shall issue a written recommendation which is mailed to parties of record. Pursuant to City Code Section 4-8-15 any party of record may request reconsideration within fourteen (14) days of the issuance of the Hearing Examiner’s report. Following expiration of the reconsideration period, the Hearing Examiner shall submit his written recommendation to the City Council on the Council meeting agenda for concurrence. The City Council shall concur with, alter or deny the Hearing Examiner’s recommendation.
D. Council Action: If no appeal is filed, the City Council’s initial approval shall grant the latecomer’s agreement and authorize the developer, Mayor and City Clerk to sign the document. If an appeal is filed and if delegated to the Hearing Examiner for a hearing and the Council concurs with specific recommendations made by the Hearing Examiner as a result of the public hearing, these recommendations shall be incorporated into the latecomer’s agreement. Following approval, alteration or denial of the Hearing Examiner’s recommendation, if any, on the appeal, the Council shall grant the latecomer’s agreement and authorize the developer, Mayor and City Clerk to sign the document. (Ord. 4443, 3-28-94)
9-5-6 EXECUTION, RECORDING AND NOTICE:
The latecomer’s agreement is mailed to the developer by the City Clerk and must be signed, notarized and returned within sixty (60) days of the date of Council approval for execution by the Mayor and City Clerk. If not consummated within the sixty (60) day period, the latecomer’s agreement will become null and void. The City Council can give consideration to extending this period by a showing of hardship or excusable neglect on the part of the holder of the latecomer’s agreement. The fully executed latecomer’s agreement shall be recorded in the official property records of King County, Washington. (Ord. 4443, 3-28-94)
9-5-7 CONTRACT FINALITY:
Once the latecomer’s agreement together with a legal description and a map of the latecomer’s boundary are recorded with the County, it shall be binding on owners of record within the assessment area. Following receipt from King County of the recorded latecomer’s agreement, the City Clerk will mail a copy of the recorded agreement to the holder of the latecomer’s agreement. (Ord. 4443, 3-28-94)
9-5-8 TITLE TO IMPROVEMENT AND ASSIGNMENT OF BENEFIT:
Before the City will collect any latecomer’s fee, the holder of the latecomer’s agreement will transfer title to all of the improvements under the latecomer’s agreement to the City. The holder of the latecomer’s agreement will also assign to the City the benefit and right to the latecomer’s fee should the City be unable to locate the holder of the latecomer’s agreement to tender any latecomer’s fee that the City has received. The holder of the latecomer’s agreement shall be responsible for keeping the City informed of their correct mailing address. Should the City be unable to locate the holder of the latecomer’s agreement in order to deliver a latecomer’s fee, the City shall undertake an independent investigation to determine the location of the holder of the latecomer’s agreement. Should the City, after a good faith attempt to locate the holder of the latecomer’s agreement, be unable to do so, the latecomer’s fee shall be placed in the Special Deposit Fund held by the City for two (2) years. At any time within the two (2) year period the holder of the latecomer’s agreement may receive the latecomer’s fee, without interest, by applying to the City for that latecomer’s fee. After the expiration of the two (2) year period, all rights of the holder of the latecomer’s agreement to that fee shall expire, and the City shall be deemed to be the owner of those funds. (Ord. 4443, 3-28-94)
9-5-9 TENDER OF FEE:
When the City has received the funds for a latecomer’s fee, it will forward that fee, if possible, to the current holder of the latecomer’s agreement at the current address of the holder of the latecomer’s agreement that is on file with the City, within thirty (30) days of receipt of the funds. It is the responsibility of the holder of the latecomer’s agreement to keep his/her address current with the City. Funds received by negotiable instrument, such as a check, will be deemed received ten (10) days after delivery to the City. Should the City fail to forward the latecomer’s fee to the holder of the latecomer’s agreement through the City’s sole negligence, then the City shall pay the holder of the latecomer’s agreement simple interest on those monies at the rate of twelve (12%) percent per annum. However, should the holder of the latecomer’s fee not keep the City informed of its current correct mailing address, or should the holder otherwise be negligent and thus contribute to the failure of the City to pay over the latecomer’s fee, then no interest shall accrue on late payment of the latecomer’s fee. (Ord. 4443, 3-28-94; amd. Ord. 4890, 2-5-01)
9-5-10 RELEASE OF ASSESSMENT:
When funds are received for a latecomer’s fee, the City will post said payment on the City’s assessment data base for the real property owned by the party paying the latecomer’s fee, within thirty (30) days of receipt of the funds. An individual certificate of payment will not be recorded with King County. The City will record a certificate of payment and release of assessment for the entire latecomer’s area when all the property owners have paid their assessment or upon expiration of the term of life of the latecomer agreement. (Ord. 4443, 3-28-94; amd. Ord. 4890, 2-5-01)
9-5-11 TERM OF LIFE:
When authorized by the City Council, a latecomer’s agreement can be granted for a period of up to but not to exceed fifteen (15) years. No extensions will be granted beyond the period of time established by City Council. The latecomer’s agreement will expire at the end of the period of time established by the City Council. (Ord. 4443, 3-28-94)
9-5-12 FEES:
There shall be paid to the City a non-refundable processing fee as set forth in RMC 4-1-180A.1. (Ord. 4443, 3-28-94; amd. Ord. 4723, 5-11-98)
9-5-13 CITY NOT RESPONSIBLE:
By instituting the latecomer’s agreement the City does not agree to assume any responsibility to enforce the latecomer’s agreement. The final latecomer’s agreement recorded with King County will be a matter of public record and will serve as a notice to the owners of the potential assessment should connection to the improvements be made. The holder of the latecomer’s agreement has responsibility to monitor those parties connecting to the improvement. Should the City become aware of such a connection, it will use its best efforts to collect the latecomer’s fee, but shall not incur any liability should it inadvertently fail to collect the latecomer’s fee. (Ord. 4443, 3-28-94)
9-5-14 IMPROVEMENTS CONSTRUCTED BY DEVELOPER:
Improvements may be installed by developer per approved plans following issuance of the construction permit and payment of applicable permit and development fees. The notification and appeal process, established by this Chapter, may result in a decision by the City Council which would alter the potential payment to the beneficiary of the latecomer’s agreement. If the beneficiary proceeds to construction prior to either the preliminary or City Council approval of the latecomer’s agreement following all appeals, the beneficiary does so at the beneficiary’s own risk. (Ord. 4443, 3-28-94)
9-5-15 INTEREST:
No interest rates are added to fees collected under private developer held latecomer’s agreements. (Ord. 4443, 3-28-94)
9-5-16 SEGREGATION AND RELIEF OF LATECOMER’S FEES:
(Rep. by Ord. 4723, 5-11-98)