Chapter 13.10
LATECOMERS AGREEMENTS FOR PUBLIC SEWER FACILITIES Revised 2/19

Sections:

13.10.010    Purpose. Revised 2/19

13.10.020    Definitions.

13.10.030    Eligibility for Latecomers Agreements. Revised 2/19

13.10.040    Proposals for Latecomers Agreements. Revised 2/19

13.10.050    Latecomers Agreement – General Terms. Revised 2/19

13.10.060    Processing of Latecomers Agreement. Revised 2/19

13.10.070    Denial of Latecomers Agreement. Revised 2/19

13.10.080    Appeals to Hearing Examiner.

13.10.090    Severability.

13.10.010 Purpose. Revised 2/19

The purpose of this Chapter is to allow the County, pursuant to Chapter 35.91 RCW, to enter into a Latecomers Agreement with an applicant for the construction of public sewer facilities (subsequently referred to as "the Improvements"). An applicant entering into a Latecomers Agreement may receive future reimbursement by the County from a portion of the connection charges received from other property owners who subsequently benefit from installation of such construction by utilizing the Improvements by the applicant.

Upon the applicant's request, the County shall execute a Latecomers Agreement with the applicant if the request meets all requirements of Chapter 35.91 RCW, as now enacted or hereinafter amended. In order for the County to execute a Latecomers Agreement, the County must be convinced that the eligibility requirements set forth in PCC 13.10.030 have been met.

If the County enters into a Latecomers Agreement with the applicant to construct public sewer facilities of an adequate size, depth, and accessibility to serve the applicant's proposed or existing development (subsequently referred to as "the Development") and other properties within a County-approved sewer sub-basin (subsequently referred to as the "Tributary Service Area"), a portion of the connection charges paid by property owners within the Tributary Service Area who subsequently connect to the Improvements, will be reimbursed to the applicant to compensate for the cost of installing the Improvements.

The goal of the Latecomers Agreement is to provide a means to reimburse the applicants for costs that exceed their own pro rata share of installing the Improvements necessary to serve both the Development and the remainder of the Tributary Service Area without passing on any of the costs to the County or other property owners outside the Tributary Service Area. The agreements shall be formulated so that the applicants are not reimbursed for any portion of their own pro rata share of the costs of installing the Improvements. (Ord. 2018-99s § 1 (part), 2018; Ord. 2013-25s § 2 (part), 2013)

13.10.020 Definitions.

The following definitions shall apply to terms used in this Chapter only. All other terms not defined in this Section shall have the same meaning as set forth in PCC 13.04.010 and any amendments thereto.

"Administrative Fee" means the charge imposed by the County to administer the Latecomers Agreements. The Administrative Fee shall be calculated pursuant to PCC 13.10.050.

"Applicant's Area Charge" means the portion of the applicant's connection charge related to the impact of wastewater discharges from the Development on the public sewer facilities located downstream from the point of connection of the Improvements. The treatment plant capacity charge and latecomers charge are not included in the Applicant's Area Charge. The Applicant's Area Charge shall be calculated pursuant to PCC 13.04.080.

"Applicant's Pro Rata Share" means the Pro Rata Share times the proposed Average Dry Weather Flow from the Development.

"Average Dry Weather Flow" (ADWF) means the average daily wastewater flow, in Residential Equivalent (RE) units, from a given drainage basin. Average Dry Weather Flow does not include inflow or infiltration, nor is it increased by diurnal curve peaking factors. For the purposes of this Chapter, one RE shall be equivalent to 220 gallons per day of wastewater flow.

"Development" means the applicant's proposal for development and/or subdivision or short subdivision of the Property as depicted/described by a valid Pierce County land use or building permit application.

"Improvements" means the public sewer facilities constructed by the applicant that are eligible for reimbursement in accordance with this Chapter.

"Property" means the parcel of land owned or developed by the applicant who wishes to enter into a Latecomers Agreement with the County.

"Pro Rata Share" means the Total Eligible Construction Cost equally divided among the properties within the Tributary Service Area, including the Development. The Pro Rata Share per Residential Equivalent shall be determined by dividing the Total Eligible Construction Cost by the ADWF that is anticipated to be generated by all the properties within the Tributary Service Area, including the Development. The anticipated ADWF will be calculated using the approved Tributary Service Area Map and allowable zoning densities at the time of execution of the Latecomers Agreement, with the exception that properties that are already developed or have submitted fully completed development applications will be assigned with their existing and proposed densities respectively. Parcels with existing residential buildings and less than one acre in total area shall be counted as being fully developed. Anticipated flows from properties within the Tributary Service Area that are outside the Comprehensive Urban Growth Area (CUGA) shall not be included in the calculation of the Pro Rata Share.

"Total Eligible Construction Cost" means the actual cost incurred by the applicant to construct the Improvements subject to the limitations set forth in PCC 13.10.050.

"Total Reimbursable Construction Cost" means the Total Eligible Construction Cost minus the applicant's Pro Rata Share of the cost of the Improvements.

"Tributary Properties" means the all the properties within the Tributary Service Area except the Property.

"Tributary Service Area" means the sewer sub-basin, as approved by the County, used to determine the appropriate size, depth and location of the Improvements that are necessary to serve the properties within the Sewer Service Area, including the Development. The County may require the Tributary Service Area to include rural properties that are located within the Sewer Service Area.

(Ord. 2013-25s § 2 (part), 2013)

13.10.030 Eligibility for Latecomers Agreements. Revised 2/19

A.    To be eligible to enter into a Latecomers Agreement with the County under this Chapter, an applicant must:

1.    Have submitted a complete sewer line extension permit application to the Department for a proposal to construct public sewer facilities which provide sewer line capacity in excess of that required for the applicant's development proposal (the Development), and which have adequate size, depth, and accessibility to serve the Development and all other properties (the Tributary Properties) within a County-approved sewer sub-basin (the Tributary Service Area); and

2.    Either own the real property referred to as the "Property" herein, or be a designee of the owner(s) of the Property. If the applicant is a designee of the owner(s) of the Property, the applicant must provide notarized authorization to the Department from the owner(s) of the Property indicating approval of the application and forfeiting all rights of eligibility as an applicant to enter into a Latecomers Agreement for development of the Property in accordance with this Chapter. The Department will not consider the application as fully completed until and unless such notarized authorization is provided.

B.    Public sewer facilities eligible for reimbursement must be located within the County's Sewer Service Area and within Pierce County. Such facilities may include collector or interceptor lines, pump stations, force mains, and all necessary appurtenances thereto. Such facilities must be constructed in accordance with the USP, the Capital Facilities Plan, any approved Sewer Facility Plan, and Pierce County Sewer Standards and must be considered permanent by the Department. Costs associated with construction of temporary sewer facilities shall not be eligible for reimbursement except as noted in PCC 13.10.050.

C.    All Latecomers Agreements must be executed by the applicant and the County prior to the issuance of sewer line extension permit(s) for construction of the Improvements. No Latecomers Agreements shall be considered or entered into after the associated sewer line extension permit(s) have/has been issued by the Department.

D.    The Director is authorized to negotiate, on behalf of the County, with eligible Applicants to formulate Latecomers Agreements.

(Ord. 2018-99s § 1 (part), 2018; Ord. 2013-25s § 2 (part), 2013)

13.10.040 Proposals for Latecomers Agreements. Revised 2/19

A.    A proposal for a Latecomers Agreement shall be submitted to the Director or an authorized designee for consideration by the County at the time of application or prior to plan approval of the sewer facility.

B.    A complete proposal for a Latecomers Agreement shall, at a minimum, include:

1.    A complete submittal for a sewer line extension (SWLE) permit application including, but not limited to, a proposed Sewer Facility Plan for the Improvements;

2.    An Engineer's Estimate of the construction costs for the Improvements;

3.    A proposed Tributary Service Area map; and

4.    A Conceptual Sewerage Plan for the Tributary Service Area.

C.    The Engineer's Estimate shall include an estimate of the Total Eligible Construction Costs as described in PCC 13.10.050. The Engineer's Estimate must be prepared and stamped by a Washington State Registered Professional Engineer.

D.    The applicant's proposed Tributary Service Area shall include all properties which may subsequently use or require service from the Improvements, including the Development, and including property that will receive service from sewer lines connected to the Improvements. Only those properties within a defined sewer sub-basin whose wastewater could flow to the Improvements in a manner in keeping with the County's USP, the Capital Facilities Plan, any approved Sewer Facility Plan, and Pierce County Sewer Standards shall be included in the Tributary Service Area. The feasibility of a property to receive service from the Improvements does not in and of itself prescribe inclusion in the Tributary Service Area. The size and limits of the Tributary Service Area must be reviewed and approved by the Department prior to Sewer Facility Plan approval. The Tributary Service Area map must be prepared and stamped by a Washington State Registered Professional Engineer.

E.    The applicant's Conceptual Sewerage Plan shall include the proposed design to serve all of the proposed lots within the Development as well as a conceptual design to serve the rest of the Tributary Service Area. At a minimum, the Conceptual Sewerage Plan must include the proposed sewer alignment, manhole locations, rim and invert elevations, pipe diameter, pipe slope, flow calculations for design capacity and flow velocities, topography, and parcel numbers and current zoning of all the properties within the Tributary Service Area. Approval of the applicant's Conceptual Sewerage Plan for the purpose of determining the eligibility of the Improvements for reimbursement shall not be construed to be an approval of all the design elements associated with said sewerage plan as they pertain to permanent sewer service for the Tributary Service Area. The Conceptual Sewerage Plan must be prepared and stamped by a Washington State Registered Professional Engineer.

F.    The County may require additional plans, specifications, easements, and legal documents as deemed necessary by the Department to evaluate and administer the Latecomers Agreement.

(Ord. 2018-99s § 1 (part), 2018; Ord. 2013-25s § 2 (part), 2013)

13.10.050 Latecomers Agreement – General Terms. Revised 2/19

The following general terms and conditions shall apply to Latecomers Agreements entered into pursuant to this Chapter:

A.    Construction of the Improvements shall be at the applicant's expense.

B.    All construction shall be in accordance with the USP, the Capital Facilities Plan, any approved Sewer Facility Plan, and Pierce County Sewer Standards.

C.    Each and every parcel along the alignment of the proposed Improvements must be provided a side sewer stub for future connection. Prior to Sewer Facility Plan approval, the applicant will be required to contact the property owners located adjacent to the public sewer facilities to determine where the adjacent property owners prefer to have their side sewer stubs located. Contact shall be, at a minimum, through a certified letter to the owner of record of the properties, as indicated by the County Assessor-Treasurer's records. The applicant shall maintain a record of contacts with adjacent property owners and submit a listing summarizing the results of the applicant's efforts to contact adjacent property owners, including the property owner's preferred location of the side sewer stub. The preferred stub locations must be included on the Sewer Facility Plan prior to approval. Written waivers may be granted at the Director's discretion in instances where a side sewer stub is not likely to be utilized. Side sewer stubs will not be permitted to properties located in a rural designated area. This provision shall not apply to side sewer stubs or sewer main stubs extending out of manholes. In the case of manholes, the County reserves the right to require the applicant to provide, without direct compensation, side sewer stubs or sewer main stubs from manholes. The costs of installing side sewer stubs and sewer main stubs shall be included in the costs subject to reimbursement under the Latecomers Agreement.

D.    Where a Latecomers Agreement is in force, the Department shall not allow any property owner within the Tributary Service Area to connect to the Improvements without payment to the Department of the connection charges at the time and manner required by PCC 13.04.070, in addition to all other costs and charges assessed for such use or connection, including their Pro Rata Share of the Total Eligible Construction Cost. In addition, connection charges for properties located within the Tributary Service Area shall include an Administrative Fee equal to 5 percent of their total Area Charge and Pro Rata Share to cover the costs of administering the applicant's Latecomers Agreement with the exception that an Administrative Fee shall not be added to the connection charges associated with the Development. No charges or fees collected from any property within the Tributary Service Area other than their Pro Rata Share of the Total Eligible Construction Cost shall be utilized to reimburse the applicant.

E.    The Total Eligible Construction Cost shall only include the following items:

1.    Sewer design work limited to 10 percent of the Total Eligible Construction Cost. Sewer design work shall include the following:

a.    Preparation of Conceptual Sewerage Plan and proposed Tributary Service Area map, including the engineering report and costs associated with a comprehensive plan amendment, if required;

b.    Survey work, including 2-foot interval topography, boundary, and right-of-way determination;

c.    Engineering design of public sewer facilities to the required specifications;

d.    Coordination of sewer design approval with other Pierce County departments and outside agencies, including permits or approvals for wetlands, shoreline, steep slope, and/or other sensitive-critical areas;

e.    Coordination with the appropriate agency for right-of-way access, easement, or permitting requirements;

f.    Costs associated with contacting potential users of the Improvements for the purpose of locating side sewer connections; and

g.    Preparation of construction cost estimate.

2.    Property acquisition done in accordance with County guidelines, including reasonable costs associated with collateral agreements whereby improvements to property are performed in exchange for granting of easement rights. The County reserves the right to require the applicant to obtain an appraisal of the easement property in question at the applicant's expense.

3.    Legal fees associated with easement or property acquisition for the actual sewer facilities, including preparation of the legal description in support of the easement or property acquisition.

4.    Construction costs including labor, materials, construction management, construction staking, and sales tax.

5.    Construction testing related to construction of the Improvements.

6.    Preparation of as-built drawings, and operations and maintenance manuals.

F.    It is entirely within the Department's discretion whether it elects to allow the construction of temporary sewer facilities that are not in accordance with the USP, the Capital Facilities Plan, any approved Sewer Facility Plan, and Pierce County Sewer Standards. If the Department permits the applicant to construct temporary sewer facilities which are sized smaller or at depths higher than those required to provide permanent sewer service to all the properties in the Tributary Service Area, then the cost associated with the construction of the temporary sewer facilities shall not be eligible for reimbursement unless the County requires that the temporary sewer facilities be upsized or constructed at a depth lower than that required to serve the Property in accordance with Pierce County Sewer Standards. Only construction costs that are associated with the additional capacity and depth can be included in the Total Eligible Construction Cost.

G.    The Latecomers Agreement shall provide for a reimbursement period of 20 years from the date of final acceptance of the improvements by the Department pursuant to RCW 35.91.020.

H.    Every two years from the date of execution of the Latecomers Agreement, the applicant must provide the Department with a contact name, address, and phone number during the term of the Latecomers Agreement. If this contact information changes, the applicant must send updated information to the Department by certified mail, return receipt requested, to the Department. If the applicant fails to comply with this requirement, the applicant may forfeit its reimbursements to Pierce County during the period of non-compliance pursuant to RCW 35.91.020(6).

(Ord. 2018-99s § 1 (part), 2018; Ord. 2013-25s § 2 (part), 2013)

13.10.060 Processing of Latecomers Agreement. Revised 2/19

The following general process shall apply to Latecomers Agreements entered into pursuant to this Chapter:

A.    Upon receipt of the applicant's fully completed Latecomers Agreement proposal, the Department staff will review and provide comment on the proposal to the Director. If the Director determines that a Latecomers Agreement is appropriate, negotiations regarding the specific terms of the agreement in accordance with this Chapter will continue until they have been completed.

B.    The Department staff shall not forward the final draft of the Latecomers Agreement to the Director until the Sewer Facility Plan for the Improvements has been approved by the Department.

C.    The Latecomers Agreement shall be approved by the Director and, if necessary, by the Pierce County Executive. The sewer line extension permit for the construction of the Improvements shall not be issued until the Latecomers Agreement has been approved by all necessary signatories. The Latecomers Agreement and any amendments thereto shall be recorded at the Pierce County Auditor's Office against all the parcels within the Tributary Service Area.

D.    Upon execution of the Latecomers Agreement, the applicant must proceed with obtaining the sewer line extension permit for the construction of the Improvements and commence construction prior to the expiration of the approved Sewer Facility Plan. Should the applicant's approved Sewer Facility Plan expire prior to the initiation of construction of the Improvements, then the Latecomers Agreement shall be null and void. Should the applicant's approved Sewer Facility Plan expire due to inactivity for one year, then the Latecomers Agreement shall be null and void.

E.    Upon completion of construction, inspection approval, and final acceptance of the Improvements by the Department, the applicant shall transfer the sewer facilities to the County, free and clear of all liens and debts, for inclusion into the public sewer system.

F.    Following the completion of construction of the Improvements and within 120 days after acceptance by the Department, the applicant shall provide complete and itemized copies of all invoices for costs related to construction of the Improvements. The cost information provided by the applicant shall be reviewed by the Department to determine the Total Eligible Construction Cost. Certification of the costs and authentication of the copies shall be made by the party providing the services and the applicant. Costs not evidenced by an invoice shall not be included in the Total Eligible Construction Cost. Any costs not previously identified in the approved Engineer's Estimate shall not be included in the Total Eligible Construction Cost unless written authorization is received from the Department. Construction costs which exceed those identified in the approved Engineer's Estimate shall not be included in the Total Eligible Construction Cost unless written authorization is received from the Department.

G.    Once the Total Eligible Construction Cost has been finalized, Department staff will draft an amendment to the executed Latecomers Agreement which will finalize the Total Eligible Construction Cost, the Pro Rata Share, and the Total Reimbursable Construction Cost. No reimbursement toward the applicant's Total Reimbursable Construction Cost shall be made by the County before the Improvements are accepted by the Department and the Latecomers Agreement has been amended to reflect the actual construction costs.

H.    The County agrees to reimburse the applicant up to the Total Reimbursable Construction Cost from the eligible portion of connection charges collected from the properties within the Tributary Service Area until the Total Reimbursable Construction Cost has been paid in full or until the term of the Agreement expires. Reimbursement payments made from the eligible portion of the connection charges collected from the Tributary Properties shall be made to the applicant within 60 days following collection of the connection charges by the County or within 60 days following the execution of the amended Latecomers Agreement, whichever is later. No latecomers charges shall be collected by the County from the properties within the Tributary Service Area that pay their connection charges and are issued permits to connect to the Improvements before the Latecomers Agreement has been amended to reflect the actual construction costs.

I.    No interest shall be paid on any unpaid balances of the Total Reimbursable Construction Cost for the life of the Latecomers Agreement.

(Ord. 2018-99s § 1 (part), 2018; Ord. 2013-25s § 2 (part), 2013)

13.10.070 Denial of Latecomers Agreement. Revised 2/19

Constructing excess capacity for public sewer facilities within the County's Sewer Service Area can be an efficient way to provide public facilities and can provide a public benefit if the applicant makes a good faith effort to work within Sewer Code regulations. However, the Department may deny a request for a Latecomers Agreement if the applicant proposing the agreement is ineligible, fails to meet all requirements of Chapter 35.91 RCW, as now enacted or hereinafter amended, insists on terms that are unlawful or inequitable, or negotiates in bad faith. (Ord. 2018-99s § 1 (part), 2018; Ord. 2013-25s § 2 (part), 2013)

13.10.080 Appeals to Hearing Examiner.

Administrative determinations of the County covering the following specific issues may be appealed to the Pierce County Hearing Examiner in accordance with Chapter 1.22 PCC:

A.    Size and limits of Tributary Service Area (PCC 13.10.040); and/or

B.    Costs subject to reimbursement (PCC 13.10.050).

(Ord. 2013-25s § 2 (part), 2013)

13.10.090 Severability.

If any provision of this Chapter or its application is held invalid or unconstitutional, the remainder of the Chapter or the application of the provision to other persons or circumstances shall not be affected. (Ord. 2013-25s § 2 (part), 2013)