Chapter 12.26
STREET LATECOMER AGREEMENTS

Sections:

12.26.010    Purpose – Intent.

12.26.020    Repealed.

12.26.030    Authorization – Minimum project size.

12.26.040    Application – Design standards/ cost estimates – Combined street and utility latecomer agreement.

12.26.050    Duration of street latecomer agreements.

12.26.060    Public works director’s determination – Right of appeal.

12.26.070    Assessment reimbursement area and charge – Notice – Appeal.

12.26.080    Written agreement – Payment of city costs in excess of application fee.

12.26.090    Street latecomer agreement must be recorded.

12.26.100    Construction and acceptance of improvements – Recording of revised fees.

12.26.110    Acceptance of improvements or systems.

12.26.120    Defective work.

12.26.130    Implementation of street latecomer agreement – Prepayment requirement – Administrative costs.

12.26.140    Payments of street latecomer charge – Notice of change of address required.

12.26.150    Rights and nonliability of city.

12.26.160    Director’s authority – Violations.

12.26.170    Existing latecomer agreements – Completed construction.

12.26.180    Alternative financing method.

12.26.190    Severability.

12.26.010 Purpose – Intent.

A. Purpose. The purpose of this chapter is to define the procedures for executing 15-year contracts between the city and developers for private construction of street improvements by providing means for (1) partial cost recovery through a charge to later developers who were not required to install similar street projects because they were already provided for by the original developer, and (2) the establishment of benefit areas defining which properties are subject to such charges and reimbursement shares based upon the benefit to the property. This chapter is also intended to implement Chapter 35.72 RCW, et seq., as it now reads, or is later amended.

B. Intent. It is intended that the processing of street latecomer agreements under this chapter be independent from the project permit time lines contained in PTMC Title 20. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.020 Definitions.

Repealed by Ord. 2578. (Ord. 2548 § 1, 1996).

12.26.030 Authorization – Minimum project size.

A. Authorization. Any property owner or developer of property located within the city limits who uses private funds to construct street improvements may apply to the city to establish a street latecomer agreement in order to recover a portion of the costs from owner(s) of property benefited by such improvements when such owner(s) later apply for permits to develop their property.

B. Minimum Project Size. To be eligible for a street latecomer agreement, the estimated total cost of the street improvements must be at least $2,500, to be adjusted annually in accordance with the Engineering News Record Index (“ENR”). The determination of eligibility shall be made by the public works director, based upon contractor bids, engineering or architectural estimates, or other information determined by the director to be a reliable basis for estimating cost. The determination of the director shall be final and conclusive. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.040 Application – Design standards/cost estimates – Combined street and utility latecomer agreement.

A. Application Form – Fee. The application must be on a form provided by the city and accompanied by a nonrefundable application fee in an amount as set forth by council resolution, except as provided under subsection D below for combined utility and street latecomer agreements. The application shall be accompanied by the following:

1. Cost Estimate/Design Standards. The street improvements design shall be based on PTMC Title 12, the engineering design standards manual, and any requirements or modifications as recommended or required during or following the preapplication conference for development review. Based on this information, the applicant shall submit with the application a statement from a licensed contractor or engineer containing an itemized estimate of the total projected cost of the street projects, including property acquisition, acquisition of easements and/or right-of-way, contract administration, grading, construction, paving, installation of curbs, streets, gutters, storm drainage, sidewalks or bike lanes incorporated as part of the street improvements, street lights, traffic signals, signs, and planting strips, and other similar improvements as required by city street standards.

2. A map depicting the boundaries of a proposed assessment reimbursement area and consisting of those properties adjacent to the street improvements for which similar improvements would be required as a prerequisite to development, each parcel of property within such area, and the street improvements in relation to such property.

3. Copies of executed deeds and/or easements in which the applicant is the grantee for all property necessary for the installation of such street projects.

4. The name and mailing address of each owner of record of property within the proposed benefit area, together with the legal description and the size and the county assessor’s tax number for each property. Such information must be certified as complete and accurate by the applicant.

B. Additional Requirements. When deemed necessary in the discretion of the public works director to determine the benefit area and reimbursement charge, the city may also require that the application be accompanied by any or all of the following:

1. A proposed benefit area based on an assessment of which parcels adjacent to the improvements would require similar street improvements as a condition of development, including, if requested by the city, a special benefit analysis prepared by a certified MAI appraiser.

2. A proposed assessment reimbursement roll stating a proposed assessment for each parcel of property within the proposed assessment reimbursement area, to be determined by apportioning the total street project costs among such parcels on the basis of the benefit of the project to each such parcel of property.

3. Detailed construction plans and drawings of the entire improvements prepared and stamped by a professional engineer with specific expertise regarding design, construction and maintenance of public streets, and certifying that the design complies with city design standards and specifications.

C. Compliance with City Requirements. Before an agreement will be processed, applicants must comply with the requirements of this chapter, and all other applicable city ordinances, rules and regulations.

D. Combined Street and Utility Latecomer Agreements. If a developer or property owner is installing utility improvements under PTMC Title 13 and requests a utility latecomer agreement under that chapter, and is concurrently installing street improvements under PTMC Title 12 and requests a street latecomer agreement, a combined latecomer agreement shall be processed under the procedures set forth in this chapter; provided, that the benefit areas for the utility improvements and the street improvements are identical (if they are not identical, the agreements will be processed separately). The application fee for a combined utility and street latecomer agreement shall be a single fee, in the amount set by council resolution for a street latecomer agreement. (Ord. 3051 § 1 (Exh. A), 2010; Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.050 Duration of street latecomer agreements.

The street latecomer agreement shall be for a period of 15 years from the date the latecomer agreement is signed by both parties. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.060 Public works director’s determination – Right of appeal.

A. Approval of Application. The public works director shall review all applications and shall approve the application only if the following requirements are met:

1. The project satisfies the minimum cost requirement and complies with city design and construction standards and all applicable federal, state, and local laws, rules and regulations, including but not limited to street codes, street standards manual, and environmental laws;

2. The proposed improvements fall within the definition of street improvements;

3. The proposed improvements are not constructed or currently under construction;

4. The proposed improvements are consistent with the Port Townsend Comprehensive Plan, transportation plan and/or nonmotorized plan or other functional plan adopted by the city; and

5. The city has the capability and capacity to service and maintain the street improvements.

B. Public Works Director’s Determination – Appeal of Determination. In the event all of the above criteria are not satisfied, the public works director 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 public works director shall be in writing.

C. Administrative Appeal.

1. The final determination of the public works director is an administrative decision which may be appealed by an applicant pursuant to Chapter 1.14 PTMC. Any decision of the public works director not appealed shall be final at the time the decision is made. The appeal must be accompanied by a filing fee in the amount set forth by council resolution.

2. The procedures set forth in Chapter 1.14 PTMC shall apply to any appeal. In reviewing a final determination, the criteria set forth above shall be applied, and the administrative decision of the public works director upheld unless evidence clearly demonstrates that the criteria have been satisfied. (Ord. 3051 § 1 (Exh. A), 2010; Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.070 Assessment reimbursement area and charge – Notice – Appeal.

A. Reimbursement Area Formula.

1. The public works director shall formulate the benefit reimbursement area for all approved applications based upon a determination of which parcels adjacent to the improvements would require similar street improvements upon development and will be benefited by the improvements.

2. The estimated amount of the reimbursement charge shall be established so that each property owner obligated to make a payment under this chapter will pay a fair, pro rata share of the cost of construction of the improvement and reimbursement of contract administration costs of the street project; provided, however, that the public works director shall have the authority to remove from the benefit area later developed properties if such properties do not need to use the street improvements due to alternate access, or a similar, valid reason as approved by the public works director (which may include such factors as topography, traffic circulation and/or cost).

3. The city shall determine, in its sole discretion, the reimbursement share based on the benefit to the property by using a method of cost apportionment such as a front footage, acre, or other equitable basis.

B. Clarification Regarding Multiple Lots Owned by the Original Developer or Property Owner.

1. For the purpose of formulating the proportionate benefit amount, the benefit area shall include all properties owned by the developer at the time of the application.

2. The applicant/property owner or developer is not entitled to reimbursement for lots that are adjacent to the improvements if those lots are owned by such person at the time they apply for the street latecomer agreement or at the time the street improvements are constructed.

C. Notice to Property Owners – Right to Request a Hearing. A notice containing the benefit reimbursement area boundaries and preliminary or estimated charges shall be sent by certified mail, return receipt requested, to the property owners within the proposed benefit reimbursement area. The notice shall also contain a description of the property owner’s rights to request a public hearing before the city council with regard to the area boundaries and special benefits and charges. The public works department will maintain a certificate or sworn declaration of mailing in its files.

D. Appeal – Request for Hearing.

1. Any appellant requesting a hearing under subsection C of this section must file an appeal within 15 calendar days of the date the notice is mailed to the property owners. The appeal must be accompanied by a filing fee in the amount set forth by council resolution. Any decision of the public works director not appealed shall be final at the time the decision is made.

2. The procedures set forth in Chapter 1.14 PTMC shall apply to any appeal. Notice of the hearing shall be given to all affected property owners. In reviewing a final determination, the city council shall apply the criteria set forth in subsection A of this section, and shall uphold the administrative decision of the public works director, unless evidence clearly demonstrates that the criteria have been satisfied.

3. After reviewing the public hearing testimony and the determination of the public works director, the city council may approve, modify or reject the benefit reimbursement area and/or charges. The city council’s determination shall be final.

4. Any judicial appeal of the city council’s determination must be filed and served within 21 days of the issuance of the decision. (Ord. 3051 § 1 (Exh. A), 2010; Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.080 Written agreement – Payment of city costs in excess of application fee.

A. Upon approval of the application, formulation of a reimbursement area and charge, notice to the property owners and expiration of the appeal period or a determination by the city council, the street latecomer agreement and supporting documents shall be presented to the city council with a resolution authorizing the mayor to sign the agreement on behalf of the city.

B. If in processing the application, the city incurs costs for engineering or other professional consultant services, the public works director shall so advise the city council. Council approval may be conditioned upon receipt of payment by the applicant of an additional amount sufficient to compensate the city for its actual costs in excess of the application fee. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.090 Street latecomer agreement must be recorded.

In order to become effective, a street latecomer agreement must be recorded with the Jefferson County auditor within 30 days of the final execution of the agreement. After the agreement has been signed by all parties, the city shall record the agreement, with a notice to title on each property within the benefited area. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.100 Construction and acceptance of improvements – Recording of revised fees.

A. Construction of Improvements. After the street latecomer agreement has been signed by all parties, and all necessary permits and approvals 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. The developer may begin construction during the processing of the latecomer agreement, but such construction shall be at the developer’s sole risk and the city assumes no liability in the event that the latecomer agreement does not become effective.

B. Documents Required. An appropriate bill of sale, easement and any other document needed to ensure right-of-access for maintenance and replacement shall be provided, along with documentation of the actual costs of the improvements and a certification by the applicant that all of such costs have been paid. A copy of any engineering “as-built” plans, specifications and drawings, including all necessary rights-of-way and easement documents shall be provided to the city prior to acceptance of the street improvements. The city may also require that the documents be provided on “AutoCAD,” or another electronic format as specified by the city. In addition, the developer shall deliver to the city reproducible copies of all plans and specifications, if any, and shall comply with any other requirements imposed by city codes or adopted standards for engineering plans, specifications, and drawings.

C. Revised List of Charges. The final cost of the improvements shall be reviewed against the preliminary assessments established by the city. Upon a showing of good cause, the agreement shall be modified to include cost overruns up to a maximum of 10 percent. In the event that actual costs are less than the public works director’s estimate by 10 percent or more, the public works director shall recalculate the charges, reducing them accordingly. For any revisions under this section, the public works director shall cause a revised list of charges to be recorded with the Jefferson County auditor, with a notice to title on each property within the benefited area. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.110 Acceptance of improvements or systems.

Upon approval of a street latecomer agreement and the completion and acceptance of the construction, the street improvement(s) and/or system(s) shall become accepted city streets. Acceptance of construction of the improvements must be evidenced by a written sign-off by the public works director. Acceptance of the street as a city street shall be accomplished in the manner set forth in the street standards ordinance, Chapter 12.04 PTMC. Transfer of ownership or the grant of any easements to the city shall be clear of all encumbrances. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.120 Defective work.

The applicant shall be responsible for all work found to be defective within one year after the date of acceptance of the street improvements by the city. The public works director may require the applicant or his/her assignee to provide the city with a Washington surety “maintenance guaranty bond” or other appropriate bond as set forth in city street codes or any adopted design standards. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.130 Implementation of street latecomer agreement – Prepayment requirement – Administrative costs.

A. Implementation of Agreement. Upon recording, the street latecomer agreement and charge shall be binding upon all property owners of record within the benefit area who were not parties to the contract. If any such owner later develops his or her property within 15 years from the date of recording with the Jefferson County auditor and is not required to install similar street improvements because such improvements were already installed under the latecomer agreement, the city shall require that owner to reimburse the developer/owner who initially constructed the projects pursuant to the reimbursement share previously determined in the street latecomer agreement.

B. Administrative Charge. Unless modified in the agreement, the city shall add 10 percent, but not less than $20.00, to each street latecomer charge, to be used by the city to defray the costs of labor, bookkeeping, and accounting necessary to administer the agreement, such amount to be adjusted annually in accordance with ENR Index.

C. Prepayment Requirement. No building permit shall be issued until the reimbursement payment is made.

D. Nonliability of City. The city will exercise its best efforts to assure compliance with this section; however, in no event shall the city incur liability for any unauthorized use of the constructed street improvements. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.140 Payments of street latecomer charge – Notice of change of address required.

A. Single Sum Payment Required. Each payment of the street development reimbursement charge, including administrative costs, shall be made payable to the city treasurer in one single sum. The city will pay the amounts due to the beneficiary (developer/property owner) within 60 days of receipt, subject to subsection C below.

B. Certificate of Payment. When the street latecomer fee for a particular parcel has been paid, at the request of the owner/payor the city shall approve a certification of payment which may be recorded by the owner.

C. Notice Requirement. Throughout the term of the agreement the developer/property owner shall notify the city, in writing, of any change of his or her name(s) or address(es). Absent such notice, the city is not responsible for locating any developer/property owner entitled to benefits under the street latecomer agreement. The developer/property owner may not assign any rights under the street latecomer agreement without written notification to the city. Absent such notification, any assignment of rights under the agreement shall have no effect on the obligations of the city under the latecomer agreement.

D. Unclaimed Funds. Any funds not claimed by the developer/property owner 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/property owner, by certified mail, return receipt requested, a final notice of the city’s intent to deposit the funds as city revenue. If the city does not receive a response by the expiration of the 180 days, the funds shall be revenue to the city street fund or as allowed by law. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.150 Rights and nonliability of city.

A. City Rights. The city reserves the right to refuse to enter into any street latecomer agreement or to reject any application thereof.

B. Hold Harmless Agreement Required. All applicants for street latecomer agreements shall be required to provide a written release, indemnification, and hold harmless agreement releasing and indemnifying the city from all claims of any nature, including property damage and personal injury arising out of the execution, establishment, enforcement and implementation of such agreement including claims arising during the course of construction and during the one-year warranty period following acceptance of the improvements by the city. Such indemnification shall include attorney fees and costs reasonably incurred in the defense of such action. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.160 Director’s authority – Violations.

A. Director’s Authority. Whenever the public works director or his or her designee (“director”) determines that a condition exists in violation of this chapter or any standard required to be adhered to by this chapter, or in violation of any permit issued hereunder, he or she is authorized to enforce the provisions of this chapter.

B. Chapter 1.20 PTMC Applicable. All violations of any provision of this chapter or incorporated standards, or of any permit or license issued hereunder, are declared nuisances and made subject to the administration and enforcement provisions of Chapter 1.20 PTMC, including any amendments, and including but not limited to abatement, criminal penalty, and civil penalty as set forth in Chapter 1.20 PTMC, which are incorporated by reference as if set forth herein. (Ord. 2952 § 3, 2008; Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.170 Existing latecomer agreements – Completed construction.

For street development permits issued after January 1, 1995, developers/property owners have until December 31, 1997, to apply for latecomer agreements for street improvements already constructed; provided they meet the requirements of this chapter. Notwithstanding other provisions of this chapter, the reimbursement charge for such agreements shall be based on the actual cost of the constructed improvement. All other provisions of this chapter shall apply to such agreements. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.180 Alternative financing method.

As an alternative to financing projects under this chapter solely by owners of real estate, the city may join in the financing of these improvement projects and may be reimbursed in the same manner as the owners of real estate who participate in the projects; provided, that the city has specified the conditions of its participation in 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 established assessment reimbursement area. No city costs for improvements that benefit the general public shall be reimbursed. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).

12.26.190 Severability.

If any clause, sentence, paragraph, section, phrase or part of this title or its application to any person or circumstance is held to be invalid or unconstitutional by a court of competent jurisdiction, such order or judgment shall not affect the validity or constitutionality of the remainder of any part of this title. To this end, the provisions of each clause, sentence, paragraph, section or part of this law are declared severable. (Ord. 2578 § 8, 1997; Ord. 2548 § 1, 1996).