Chapter 20.110
LATECOMERS AGREEMENTS FOR DEVELOPER IMPROVEMENTS
Sections:
20.110.010 Agreement format.
The following establishes the agreement format for developer improvements on streets, water, sewer and electrical and any other as applicable. (Ord. 1155 § 2, 1995)
LATECOMERS AGREEMENT FOR DEVELOPER IMPROVEMENTS
(Streets, Water, Sewer, Electrical, Etc.)
THIS LATECOMERS AGREEMENT (“Agreement”) is made and entered into this ____ day of _______, 199_, by and between the CITY OF SUMAS, a Washington municipal corporation (“City”), and ___________, a _______________ (“Owner”).
A. The Owner has agreed to make the improvements for and on behalf of the City, the details of which are set forth on Exhibit “A,” attached hereto and made a part hereof.
B. There are no adjoining property owners presently available to share in the cost and expense of the construction of such improvements. The parties wish to enter into an agreement providing for the installation of such improvements and providing for partial reimbursement to the Owner of a portion of the costs of such improvements pursuant to Chapter 35.72 RCW.
C. The City has determined that the construction and installation of the improvements are in the public interest and the Owner is willing to pay all the costs and expenses for the installation of such improvements.
NOW, THEREFORE, the parties agree as follows:
1. Description of Property.
1.1 Owner’s Property. The Owner acknowledges that it is the owner of the certain real property located in Sumas, Washington, legally described on Exhibit “B,” attached hereto and incorporated herein by this reference (“Owner’s Property”).
1.2 Benefited Property. Certain real property which is adjacent to or near the Owner’s Property will receive a benefit from the proposed improvements, which properties are legally described on Exhibit “C,” attached hereto and incorporated herein by this reference (“Benefited Properties”).
2. Improvements. The Owner agrees to install, at his or her expense, the improvements (“Improvements”) as set forth on Exhibit “A,” attached. The Owner agrees that all work performed in connection with the Improvements shall be in full compliance with all applicable federal, state and City laws, including without limitation all City codes, ordinances, resolutions, policies, standards and regulations.
3. Cost of Improvements. The Owner agrees that all expenses and claims in connection with the construction and installation of the Improvements, whether for labor or materials, have been or will be paid in full by the Owner. The Owner further certifies that the total cost of construction of the Improvements is equal to ___________ Dollars ($____________ ) (“Total Cost”). If the actual cost of the Improvements is different than the amount certified above, the Owner shall provide documentation to the City establishing the basis of any increased amount. In the event the City approves the increase, this increased amount shall be the Total Cost, for purposes of calculating the Benefited Properties pro rata share.
4. Reimbursement.
4.1 Latecomer’s Obligation to Reimburse. Any owner of the Benefited Properties (“Latecomer”) who did not contribute his full pro rata share as determined by the Method, as outlined in Section 4.2 below, to the original cost of the Improvements, and who subsequently elects to develop his or her respective property within ten (10) years from the date this Agreement is recorded with the Whatcom County Auditor’s Office and at the time of development is not required to install the Exhibit “A” Improvements as a result of the installation by the Owner of the Improvements, shall not be granted a permit for the development without first paying to the City, in addition to any and all other costs, fees and charges associated with its proposed development Improvements, his or her pro rata share of the Total Cost of the Improvements and all administration costs associated with this Agreement, as determined by Subsection 4.2 herein.
4.2 Pro Rata Share. The method for determining the pro rata share of the Total Cost to be paid by any Latecomer shall be one of the following methods, hereinafter referred to as the “Method,” at the City’s election:
______ a. front foot method
______ b. zone front foot method
______ c. square footage method
______ d. contract method
______ e. trip generation (traffic) method
______ f. other equitable method
______ g. any combination of methods a. through f. as described on Exhibit “B”, attached hereto and made a part hereof.
(check the applicable method of assessment)
The decision of the City Utility Superintendent or his or her authorized representative as to the Method used in determining or computing the amount due from any Late comer shall be final and conclusive.
4.3 Cost of Method Determination. The determination of the Method may require the hiring of an outside consultant (engineer, urban planner, etc.), and if such outside consultant, in the sole discretion of the City, is required, the Owner agrees to pay for the reasonable cost thereof, which cost and expense shall be added to the cost of the Improvements, as set forth in Section 3 above.
5. Payment to Owner. The City agrees to pay a “Latecomer’s Fee” equal to all amounts received from Latecomers to the Owner within thirty (30) days after receipt thereof, less a ten percent (10%) processing fee.
6. Term/Extension of Agreement. The tern of this Agreement is for a period of ten (10) years commencing on the date this Agreement is recorded and terminating ten (10) years thereafter; provided, however, that in the event an extension is authorizer) by the Sumas City Council, this Agreement may be extended for one (1) additional term not exceeding a five (5) year period (“Term”). The extension may be granted at City’s option upon a written request by the Owner prior to the expiration of the initial ten (10) year period.
7. [Improvement] System. The Owner agrees that the Improvements have been or are about to be connected with the (e.g., utility and/or street systems, etc., of the City) and, upon such connection and acceptance by the City through its legislative body, the Improvements shall become a part of the City’s system or
8. Recordation. This Agreement, or a shortened notice thereof, shall be recorded with the Whatcom County Auditor’s Office within thirty (30) days of execution of this Agreement by the City and the Owner.
9. We to Improvements. The Owner hereby transfers to the City all of the Owner’s right, title and interest in and to the Improvements. The City reserves the right, without affecting the validity or terms of this Agreement, to make or cause to be made extensions to or additions of the Improvements, without liability on the part of the City.
10. Assignment of Fees. The Owner hereby assigns to the City all of the Owner’s right, title and interest in and to any Latecomer’s Fee in the event the City is unable to locate the Owner to tender the same. The Owner shall be responsible for informing the City of its current and correct mailing address. The City will make a good faith effort to locate the Owner and, in the event the City is unable to do so, the Latecomer’s Fee shall be placed in the Special Deposit Fund held by the City for a period of two (2) years. At any time within this two (2) year period, the Owner may receive the Latecomer’s Fee, without interest, by notifying the City of the Owner’s then current mailing address. After the expiration of the two (2) year period, all rights of the Owner to any Latecomer’s Fee shall terminate, and the City shall be deemed to be the owner of such funds.
11. Enforcement. The City does not agree to assume any responsibility to enforce this Agreement. This Agreement will be a matter of public record and will serve as a notice to all potential Latecomers. The Owner shall be responsible to monitor those parties enjoying the Improvements. In the event the City becomes aware of a Latecomer, it will use its best efforts to collect the Latecomer’s Fee, but shall not incur any liability should it fail to collect such fee.
12. Indemnification. The Owner agrees to indemnify and hold the City, its elected officials, officers, employees, agents and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees or representatives, arising from, resulting from or connected with this Agreement or the construction or installation of the Improvements.
13. Equal Opportunity Employer. In all of the Owner’s activities, hiring and employment made possible by or resulting from this Agreement, there shall be no discrimination against any person because of sex, sexual orientation, age (except minimum age and retirement provisions), race, color, creed, national origin, marital status or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification.
14. General Provisions.
14.1 Entire Agreement. This Agreement contains all of the agreements of the parties and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose.
14.2 Modification. No provision of this Agreement may be amended or added to except by agreement in writing signed by the parties.
14.3 Full Force and Effect. Any provision of this Agreement which is declared invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provisions shall remain in full force and effect.
14.4 Successors in Interest. This Agreement shall inure and be for the benefit of and shall obligate all of the parties, respective successors in interest, heirs, beneficiaries or assigns.
14.5 Attorney Fees. In the event either party defaults on the performance of any terms in this Agreement, and this Agreement is placed in the hands of an attorney, or suit is filed, the prevailing party shall be entitled to an award of its reasonable attorney’s fees, costs and expenses. The venue for any dispute related to this Agreement shall be Whatcom County, Washington.
14.6 No Waiver. Failure of the City to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default. Failure of the City to declare one breach or default does not act as a waiver of the City’s right to declare another breach or default.
14.7 Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington.
14.8 Authority. Each individual executing this Agreement on behalf of the City and the Owner represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the Owner or the City.
14.9 Notices. Any notices required to be given by the City to the Owner or by the Owner to the City shall be delivered to the parties at the addresses set forth below. Any notices may be delivered personally to the addresses of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing.
14.10 Captions. The respective captions of the paragraphs of this Agreement are inserted for convenience or reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Agreement.