Chapter 12.28
LATECOMER AGREEMENTS – STREET PROJECTS AND WATER AND SEWER FACILITIES

Sections:

12.28.005    Street projects as prerequisite to property development.

12.28.010    Purpose.

12.28.020    Exclusion.

12.28.030    Definitions.

12.28.040    Application eligibility.

12.28.050    Application contents.

12.28.060    Determination of benefited area boundaries and assessments.

12.28.070    Duration of agreement.

12.28.080    Resolution of preliminary determination – Public hearing.

12.28.090    Notification to assessment area property owners.

12.28.100    Appeals by assessment area property owners.

12.28.110    Final determination ordinance – Written agreement.

12.28.120    Costs and fees – Developer responsibility.

12.28.130    Latecomer agreement must be recorded.

12.28.140    Construction and acceptance of improvements – Recording of final assessment.

12.28.150    Collection of assessments.

12.28.160    Release of assessments.

12.28.170    Street projects/alternative financing method – Participation by city.

12.28.005 Street projects as prerequisite to property development.

Chapter 12.24 and Title 14 (SEPA) of the Chelan Municipal Code and Chapter 43.21C RCW, all as now exist or as may be hereafter amended, constitute ordinances of the city requiring certain street projects as a prerequisite to further property development. Owners of real estate constructing or improving streets pursuant to such authority may enter into reimbursement contracts with the city, consistent with Chapter 35.72 RCW and this chapter, as now exist or as may be hereafter amended. (Ord. 1050 § 1, 1996).

12.28.010 Purpose.

The purpose of this chapter is to prescribe rules and regulations for exercise of the authority to enter into street project and/or water or sewer facilities latecomer agreements granted to the city by Chapters 35.72 and 35.91 RCW as now exist or as may be hereafter amended. (Ord. 1138 § 1, 1999: Ord. 1050 § 1, 1996).

12.28.020 Exclusion.

Except for judicial appeal, pursuant to RCW 36.70B.140 and Section 19.01.070(5) of the Chelan Municipal Code, the application process for latecomer agreements are specifically excluded from the procedures set forth in Title 19 of the Chelan Municipal Code. (Ord. 1050 § 1, 1996).

12.28.030 Definitions.

As used in this chapter, the terms listed below shall be defined as follows:

A. “Cost of construction” means those costs incurred, including but not limited to costs for design, engineering, acquisition of right-of-way and/or easements, construction, materials, installation and contract administration required in order to create an improvement which complies with city standards.

Until such time as Chapter 35.72 or 35.91 RCW is amended to expressly authorize inclusion of interest charges or other financing costs, such expenses shall not be included in the calculation of construction costs. In the event of a disagreement between the city and the applicant concerning the cost of the improvement, the director’s determination shall be final.

B. “Latecomer agreement” means a written contract between the city and one or more property owners providing for construction of water or sewer facilities and/or construction or improvement of street projects and for partial reimbursement to the party causing such improvements to be made of a portion of the costs of such improvements, as more specifically described in Chapters 35.72 and 35.91 RCW, as now exist or as may be hereafter amended.

C. “Director” means the city administrator or his/her designee.

D. “Street project” shall have the meaning specified in RCW 35.72.020(4) as it now exists, or as may be hereafter amended as follows: “Street project” may include but is not limited to design, grading, paving, installation of curbs, gutters, storm drainage, sidewalks, street lighting, traffic controls and other similar improvements, as required by the street standards of the city of Chelan as are now codified or as may be hereafter amended.

E. “Water or sewer facilities” shall have the meaning specified in RCW 35.91.020 as it now exists, or as may be hereafter amended as follows: “Water or sewer facilities” shall mean the construction of storm, sanitary, or combination sewers, pumping stations, and disposal plants, water mains, hydrants, reservoirs, or appurtenances. (Ord. 1050 § 1, 1996).

12.28.040 Application eligibility.

A. Whenever a developer is required to construct a street project as a condition of further property development as required by an ordinance of the city or where the developer is required to construct water or sewer facilities as a result of a determination of the director or city council, where the project and/or water or sewer facilities, all collectively referred to as “improvements,” benefit nonparticipating properties, the developer may apply for a latecomer agreement to establish a reimbursement area that includes other properties benefiting from the improvements. Such application shall be filed with the director prior to commencing work on the improvements.

B. In order to be eligible for a latecomer agreement, the cost of the improvement must not be less than fifty thousand dollars. The cost of the improvement shall be determined, based upon a construction contract for the project, bids, engineering or architectural estimates, receipts or other information deemed by the director to be a reliable basis for determining cost.

C. Latecomer agreements must be applied for prior to commencement of construction of the street project and/or water or sewer facility. (Ord. 1050 § 1, 1996).

12.28.050 Application contents.

A. Applications for establishment of an assessment reimbursement area through a latecomer’s agreement shall be accompanied by a nonrefundable application fee in an amount set by resolution of the city council to reimburse the city for expenses in processing the application. The application fee may include a separate fee for each parcel to be encumbered by the agreement.

B. An application shall be considered complete upon submission of the fee to the city clerk along with the written application on a form approved by the director and shall include the following items:

1. Legal description of the applicant’s property.

2. Detailed construction plans and drawings of the entire project prepared and stamped by a licensed civil engineer.

3. Itemization of all costs of construction of the project. Such itemized estimates of construction costs shall be prepared and signed by a licensed civil engineer or shall be in the form of a bid submitted by a qualified contractor (if more than one bid has been obtained, all bids must be submitted to the director).

4. Scaled and clearly reproducible vicinity drawings, stamped by a licensed civil engineer or licensed land surveyor depicting the improvements, their location, the proposed benefit area including dimensions and county assessor’s numbers for each tax parcel, size of parcels, and proposed method and evaluation for determining benefit.

5. A proposed assessment roll containing the county auditor’s tax lot numbers, a certified list of record owners, legal descriptions and proposed assessment for each separate parcel within the proposed assessment reimbursement area as determined as set forth in Section 12.28.060.

6. Such other information as the director determines is necessary to properly review the application. (Ord. 1050 § 1, 1996).

12.28.060 Determination of benefited area boundaries and assessments.

A. In the case of a water or sewer facility, an assessment reimbursement area shall be based upon a determination of which parcels did not contribute to the original cost of the water or sewer facility and who may subsequently tap into or use the same, including not only those who may connect directly thereto, but also those who may connect to laterals or branches connecting thereto. The amount of the assessment shall be established so that each property will be assessed a pro rata share of the cost of the construction of the water or sewer facilities.

B. In the case of street projects, the assessment reimbursement area shall be based upon a determination of which parcels of property adjacent to the improvements would have been required to construct similar street improvements as a condition of development had it not been for the street project construction which is the subject of the latecomer agreement. The reimbursement shall be a pro rata share of construction and reimbursement of contract administration costs of the street project. The amount of the assessment shall be established so that each property will be assessed a share of costs of the improvements, which is proportional to the benefits which accrue to the property. (Ord. 1050 § 1, 1996).

12.28.070 Duration of agreement.

No latecomer agreement shall provide for reimbursement for a period longer than fifteen years from the date of final acceptance of the street project and/or water or sewer facility by the city. (Ord. 1050 § 1, 1996).

12.28.080 Resolution of preliminary determination – Public hearing.

A. The director shall examine applications submitted in accordance with this chapter and make recommendations to the city council at a public hearing. The public hearing before the city council shall be held within twenty days of receipt of the developer’s complete application by the director. The city clerk shall provide ten days written notice to the developer of the date, time and place of the public hearing. The council may accept, modify or deny the developer’s proposal. Any action to accept or modify the developer’s proposal shall require the adoption of a resolution of preliminary determination and shall be based on a finding that the properties within the reimbursement areas are benefited from the development improvements, and that the method of assessment equitably distributes the cost of installation between all benefited parties. The resolution of preliminary determination shall include the following:

1. A map showing the geographical boundaries of the assessment area.

2. The assessments for the assessment area property.

3. Notification to property owners within the assessment area of their right to appeal the preliminary decision of the city council set forth in the resolution by causing a written request for a hearing to be served on the city clerk within twenty days of the mailing of the resolution to the assessed area property owners. The appeals shall be held at a public hearing before the city council and all property owners in the assessed area shall be provided notice of the hearing.

4. Notification to property owners within the assessment area that the city council at a public hearing requested by an assessment area property owner for the purpose of appealing the preliminary determination resolution of the city council may deny a property owner’s appeal, reduce the size of the assessment area, increase or decrease the final assessments to assessment area property owners, or otherwise modify the terms of the preliminary determination resolution without further notification to the assessment area property owners.

5. Notification that the city council’s decision at a public hearing requested by an assessment area property owner for the purpose of appealing the preliminary determination resolution of the city council is determinative and final.

6. Notification that the city council may contract with the petitioner to carry out the preliminary determination resolution provisions or any modification thereof made at a public hearing on the preliminary determination resolution requested by an assessment area property owner and such contract shall be binding on all assessment area property owners.

B. In reviewing the director’s decision, the city council shall apply the criteria set forth in this chapter and Chapters 35.72 and 35.91 RCW as now exist or as may be hereafter amended. The council may adopt, reject or modify the director’s determination. (Ord. 1050 § 1, 1996).

12.28.090 Notification to assessment area property owners.

Within ten days of adoption of a resolution making a preliminary determination as provided in Section 12.28.080, the city clerk shall send, by certified mail, a copy of the resolution to all property owners of record within the assessment area. (Ord. 1050 § 1, 1996).

12.28.100 Appeals by assessment area property owners.

Whenever any property owner requests a hearing to appeal the council’s preliminary determination resolution, ten days’ written notice of the public hearing shall be sent by certified mail to all assessment area property owners and the developer. The hearing shall be conducted as a public hearing before the city council within thirty-five days of the city clerk’s receipt of the assessment area property owner’s request for the hearing. All requests for hearings received from area property owners shall be considered by the city council at the same public hearing. The city council’s determination shall be based on a finding that the properties within the reimbursement areas are benefited from the development improvements, and that the method of assessment equitably distributes the costs of installation between all benefited parties. The council may adopt, reject or modify the preliminary determination resolution. The determination of the city council at any such hearing is final. (Ord. 1050 § 1, 1996).

12.28.110 Final determination ordinance – Written agreement.

A. Following any final determination of the city council after a public hearing on an appeal by an assessment area property owner, or upon expiration of the time period for appeal, a latecomer agreement in a form approved by the city attorney along with the application and supporting documents, together with the determination of costs, benefited area and assessments, shall be presented to the city council with a request that the city council adopt an ordinance containing the final determination of the assessment reimbursement area and the pro rata share of reimbursable costs, approving the latecomer agreement and authorizing the mayor to sign the agreement on behalf of the city. Upon approval by the city council, the city clerk shall acquire the signatures of all other parties and record the agreement as required by Section 12.28.130 of this chapter. (Ord. 1050 § 1, 1996).

12.28.120 Costs and fees – Developer responsibility.

A. Developers petitioning the city council to establish a reimbursement area shall pay all of the city’s costs and fees for professional services incurred in establishing or attempting to establish a latecomer agreement with the developer. The city’s costs and fees for professional services shall include, but shall not be limited to, the costs for mailing notices, auditor’s filing fees, fees for the city’s professional engineering services or other consultant service, and reasonable attorney’s fees incurred by the city.

B. In the event that costs incurred by the city as set forth in subsection A of this section exceed the amount of the application fee, the city clerk shall so advise the city council and the council’s approval of the latecomer agreement shall be conditioned upon receipt of payment by the applicant of an amount sufficient to compensate the city for its costs in excess of the application fee. (Ord. 1050 § 1, 1996).

12.28.130 Latecomer agreement must be recorded.

In order to become effective, a latecomer agreement must be recorded with the office of the Chelan County auditor no later than thirty days after the latecomer agreement is signed by all parties. (Ord. 1050 § 1, 1996).

12.28.140 Construction and acceptance of improvements – Recording of final assessment.

A. When an application is made prior to construction of the street project or water or sewer facility and the reimbursement agreement has been signed by all parties and all necessary permits and approvals have been obtained, the applicant shall construct improvements, and upon completion, request final inspection and acceptance of the improvements by the city, subject to any required obligation to repair defects.

When deemed appropriate by the director, a bill of sale, easement and any other documents needed to convey the improvements to the city and to insure right of access for maintenance, repair and replacement shall be provided, along with documentation of the actual costs of the improvement and a certification by the applicant verifying the actual costs and that all of such costs have been paid.

B. In the event the actual costs are less than the preliminary assessment estimate by ten percent or more, the director shall recalculate the assessments, reducing them accordingly, and shall cause a revised list of assessments to be recorded with the Chelan County auditor. (Ord. 1050 § 1, 1996).

12.28.150 Collection of assessments.

A. Subsequent to the recording of a reimbursement agreement, the city shall not:

1. In the case of a street project agreement, issue any permit for development upon property which has been assessed pursuant to the agreement unless the share of the costs of such project required by the recorded agreement is first paid to the developer(s) as evidenced by the certificate of payment and release of assessment recorded as set forth in Section 12.28.160.

2. In the case of a water or sewer facility agreement, permit connection of the assessed property to any sewer or water facility constructed pursuant to the reimbursement agreement, unless the share of the costs of such facilities required by the recorded agreement is first paid to the developer(s) as evidenced by the certificate of payment and release of assessment recorded as set forth in Section 12.28.160. (Ord. 1050 § 1, 1996).

12.28.160 Release of assessments.

When total reimbursement is received for each parcel subject to the latecomer agreement, the developer shall record a certificate of payment and release of assessment as to the real property owned by the party paying a latecomer charge within sixty days of receipt of the funds. (Ord. 1050 § 1, 1996).

12.28.170 Street projects/alternative financing method – Participation by city.

As an alternative to financing street projects under this chapter solely by owners of real estate, the city may join in the financing of street projects and may be reimbursed in the same manner as the owners of real estate who participate in the projects if the city has specified the condition of its participation by way of an ordinance. The city may be reimbursed only for the costs of improvements that benefit that portion of the public who will use the developments within the assessment reimbursement area established pursuant to this chapter. The city shall not be entitled to reimbursement for costs for improvements that benefit the general public. When the city participates in a project, reimbursement shall be subject to Section 12.28.150. (Ord. 1050 § 1, 1996).