Chapter 13.40
UTILITY REIMBURSEMENT AGREEMENTS
Sections:
13.40.030 Application eligibility.
13.40.040 Application contents.
13.40.050 Determination of reimbursement area boundaries and assessments.
13.40.060 Duration of agreement.
13.40.070 Resolution of preliminary determination – Public hearing.
13.40.080 Notification to reimbursement area property owners.
13.40.090 City council public hearing.
13.40.100 Final determination ordinance – Written agreement.
13.40.110 Costs and fees – Developer responsibility.
13.40.120 Collection of assessments.
13.40.140 Release of assessments.
13.40.010 Definitions.
For the purpose of this chapter the following words or phrases have the meaning set forth herein, unless context indicates otherwise:
(1) “Developer” shall mean an individual, firm, corporation, limited liability company or partnership who proposes to construct city owned utility improvements in association with improvement of real property within the city limits or its urban growth area.
(2) “Director” shall mean the director of planning and building for the city, or his or her authorized designee.
(3) “City” shall mean the city of Entiat, Washington.
(4) “Reimbursement area” shall mean and include the properties that did not contribute to the original cost of the utility improvements and who may subsequently tap into or use the same (either through connecting directly or to laterals or branches), and that are subject to a reimbursement assessment established pursuant to a utility reimbursement agreement.
(5) “Reimbursement assessment” or “assessment” shall mean the assessment established pursuant to a utility reimbursement agreement and applied to property within the reimbursement area to reimburse the developer for the costs of constructing the utility improvements.
(6) “Utility improvements” shall mean municipal water, wastewater or storm drain improvements, including but not limited to any transmission pipelines, storage facilities, pumping plants, distribution mains, and any appurtenances thereto, constructed by a developer.
(7) “Utility reimbursement agreement” shall mean a written contract or agreement between the city and one or more developers providing for construction of utility improvement 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 Chapter 35.91 RCW, as the same now exists or as it may hereafter be amended. (Ord. 876 § 2, 2023)
13.40.020 Purpose.
The purpose of this chapter is to prescribe rules and regulations for the exercise of the authority to enter into utility reimbursement agreements authorized by Chapter 35.91 RCW, as the same now exists or as it may hereafter be amended. (Ord. 876 § 2, 2023)
13.40.030 Application eligibility.
(1) Whenever a developer is required by EMC Titles 14, 15, 16, 17, 18 and/or 19, or by other regulations, or an order of the director or city council, to construct utility improvements that benefit nonparticipating properties, the developer may apply for a utility reimbursement agreement to establish a reimbursement area that includes other properties benefiting from the improvements. Such application shall be filed with the director within 60 days of the date of completion and final acceptance of the utility improvements by the city.
(2) In order to be eligible for a utility reimbursement agreement, the cost to construct the utility improvements must not be less than $10,000. The cost of the utility improvements shall be determined, based upon a review of the actual construction costs for the project, as certified by the developer’s engineer. (Ord. 876 § 2, 2023)
13.40.040 Application contents.
(1) Applications for establishment of a reimbursement area through a utility reimbursement 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 incurred by the city in processing the application.
(2) An application shall be considered complete upon submission of the fee to the director along with a written application that includes all of the following items:
(a) Legal description of the applicant’s property.
(b) Detailed “as-built” construction plans and drawings of the entire project prepared and stamped by a licensed civil engineer, which plans and drawings must be consistent with city ordinances, standards, and/or adopted design manuals (as identified by the applicable development review process).
(c) Itemization of all costs of construction of the project. Such construction costs shall be signed and stamped by a licensed civil engineer.
(d) 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 (reimbursement area) including dimensions and county assessor’s numbers for each tax parcel, size of parcels, and proposed method and evaluation for determining benefit.
(e) A proposed assessment roll containing the county auditor’s tax lot numbers, a certified list of record owners, legal descriptions and proposed reimbursement assessment for each separate parcel within the proposed reimbursement area as determined as set forth in EMC 13.40.050.
(f) Such other information as the director determines is necessary to properly review the application. (Ord. 876 § 2, 2023)
13.40.050 Determination of reimbursement area boundaries and assessments.
(1) A reimbursement area shall be based upon a determination of which parcels did not contribute to the original cost of the utility improvements 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.
(2) The amount of the reimbursement assessment shall be established by the city using procedures to ensure that each property in the reimbursement area will be assessed an equitable share of the cost of the construction of the utility improvements. In determining the reimbursement assessment for utility improvements, the city may consider the total project cost of the utility improvements including all costs to design, engineer, construct, administrate, acquire additional easements or rights-of-way, and install the utility improvements within a specific geographic area to be served by the utility improvements, and any other equitable factors to be determined by the city at the time of application.
(3) Following recording of the utility reimbursement agreement, reimbursement assessments shall apply to all connections made to the utility improvements for a period not to exceed 20 years after the date the city makes final acceptance of the utility improvements. (Ord. 876 § 2, 2023)
13.40.060 Duration of agreement.
No utility reimbursement agreement shall provide for reimbursement for a period longer than 20 years from the date of final acceptance of the utility improvements by the city. (Ord. 876 § 2, 2023)
13.40.070 Resolution of preliminary determination – Public hearing.
(1) The director shall examine applications submitted in accordance with this chapter and make recommendations to the city council at a public meeting. The public meeting before the city council shall be held within 30 days of receipt of the developer’s complete application by the director. The director shall provide 10 days’ written notice to the developer of the date, time and place of the public meeting. The city 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 utility 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:
(a) A map showing the geographical boundaries of the reimbursement area.
(b) The reimbursement assessments for the reimbursement area property.
(c) Notification to property owners within the reimbursement area of a public hearing to be held to consider final adoption of the preliminary determination within 40 days of the date of the passage of the preliminary determination resolution.
(d) Notification to property owners within the reimbursement area that the city council at the public hearing may reduce the size of the reimbursement area, increase or decrease the final assessments to reimbursement area property owners, or otherwise modify the terms of the preliminary determination resolution without further notification to the reimbursement area property owners; provided, that any increase in the assessment to an individual reimbursement area parcel shall not modify the amount set forth in the resolution of preliminary determination by more than 10 percent.
(e) Notification that the city council’s decision following the public hearing is determinative and final.
(f) Notification that the city council may enter into a utility reimbursement agreement with the developer to carry out the preliminary determination resolution provisions or any modification thereof consistent with the terms of this chapter made at the public hearing on the preliminary determination resolution and such utility reimbursement agreement shall be binding on all reimbursement area property owners.
(2) In reviewing the director’s recommendations, the city council shall apply the criteria set forth in this chapter and Chapter 35.91 RCW as it now exists or as it may be hereafter amended. The city council may adopt, reject or modify the director’s determination. (Ord. 876 § 2, 2023)
13.40.080 Notification to reimbursement area property owners.
Within 10 days of adoption of a resolution making a preliminary determination as provided in EMC 13.40.070, the director shall send, by certified mail, a copy of the resolution to all property owners of record within the reimbursement area. (Ord. 876 § 2, 2023)
13.40.090 City council public hearing.
The city council’s determination to approve a utility reimbursement agreement following the public hearing shall be based upon a finding that the properties within the reimbursement area are benefited from the utility improvements, and that the method of establishing the reimbursement assessment equitably distributes the costs of installation between all benefited properties. The city council may adopt, reject, or modify the preliminary determination resolution. The determination of the city council following any such hearing is final. (Ord. 876 § 2, 2023)
13.40.100 Final determination ordinance – Written agreement.
Following the final determination of the city council after the public hearing, a utility reimbursement agreement in a form prepared by the city attorney and signed by the developer shall be presented to the city council containing the final determination of the reimbursement assessments for the reimbursement area. The utility reimbursement agreement shall contain a provision that the city shall not be responsible for the costs of enforcement of the utility reimbursement agreement and shall not under any circumstances be liable to the developer or its successors for any of the costs of constructing the utility improvements that are the subject of the utility reimbursement agreement. Upon approval by the city council, the mayor shall sign on behalf of the city and the director shall record the utility reimbursement agreement with the Chelan County auditor and provide a recorded conformed copy to the developer. The utility reimbursement agreement shall be enforceable following recording with the Chelan County auditor. (Ord. 876 § 2, 2023)
13.40.110 Costs and fees – Developer responsibility.
(1) 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 utility reimbursement 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 recording fees, fees for the city’s professional engineering services or other consultant services, and reasonable attorney’s fees incurred by the city.
(2) In the event that costs incurred by the city as set forth in subsection (1) of this section exceed the amount of the application fee established pursuant to EMC 13.40.040, the director shall so advise the city council and the city council’s approval of the utility reimbursement agreement shall be conditioned upon the prior receipt of payment by the developer of an amount sufficient to compensate the city for its costs in excess of the application fee. (Ord. 876 § 2, 2023)
13.40.120 Collection of assessments.
(1) Subsequent to the recording of a utility reimbursement agreement, the city shall not permit connection of a reimbursement area property to any utility improvements constructed pursuant to the utility reimbursement agreement, unless the reimbursement assessment applicable to the property is first paid to the developer.
(2) Upon receipt of any reimbursement assessment, the city shall deduct a six percent administrative fee and remit the balance of the reimbursement assessment to the developer or its successor. In the event that, through error, the city fails to collect a required reimbursement assessment prior to approval of connection to a utility improvement, the city shall make diligent efforts to collect such assessment, but shall under no circumstances be obligated to make payment to the developer or its successor, or in any other way be liable to such party.
(3) Throughout the term of the utility reimbursement agreement, the developer shall notify the city, in writing, of any change of its name or address. Absent such notice, the city is not responsible for locating any developer or successor entitled to benefits under the utility reimbursement agreement. The developer may not assign any rights under the utility reimbursement agreement without written notification to the city. Absent such notification, any assignment of rights under the utility reimbursement agreement shall have no effect on the obligations of the city under the utility reimbursement agreement.
(4) Notwithstanding any contrary provision above in this section, each utility reimbursement agreement approved by the city shall include a provision requiring that every two years from the date the agreement is executed a developer or its successor shall provide the city with information regarding the current name, address and telephone number of the developer or its successor. If the developer or its successor fails to comply with the notification requirements of this subsection within 60 days of the specified time, then the city may collect any reimbursement assessments owed to the developer or its successor under the utility reimbursement agreement. Such assessments shall be deposited by the city in the capital fund of the city.
(5) Any reimbursement assessments collected by the city and not claimed by the developer (or successor) within 180 days from the date collected shall become the property of the city. Before the expiration of the 180 days, the city shall send to the developer (or successor), by certified mail, return receipt requested, a final notice of the city’s intent to deposit the reimbursement assessments in the general fund of the city. If the city does not receive a response in writing by the expiration of the 180 days, the city shall deposit the revenue to the city general fund.
(6) In the event the city becomes a party to any litigation arising out of a city attempted enforcement of a utility reimbursement agreement against a reimbursement area property owner, the city shall be entitled to recover from the developer or its successor its reasonable attorney’s fees and costs, which fees and costs shall constitute a lien upon all funds due the developer or its successor pursuant to the utility reimbursement agreement. (Ord. 876 § 2, 2023)
13.40.130 City – Not liable.
(1) The city reserves the right to refuse to enter into any utility reimbursement agreement or to reject any application therefor.
(2) The city shall not be liable under a utility reimbursement agreement or otherwise to pay for any of the costs of the utility improvements constructed by a developer. (Ord. 876 § 2, 2023)
13.40.140 Release of assessments.
When the reimbursement assessment is received by the developer or its successor for a property subject to the utility reimbursement agreement, the developer or its successor shall record a certificate of payment and release of the reimbursement assessment as to the applicable property within 60 days of payment of the reimbursement assessment. (Ord. 876 § 2, 2023)