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HomeMy WebLinkAbout2515 Utility Latecomer AgreementsOrdinance No. 2515 AN ORDINANCE OF THE CITY OF PORT TOWNSEND CREATING A NEW CHAPTER 13.28, UTILITY LATECOMER AGREEMENTS, OF THE PORT TOWNSEND MUNICIPAL CODE, AND ESTABLISHING PROCEDURES AND REGULATIONS FOR ENTERING INTO UTILITY LATECOMER AGREEMENTS AND ESTABLISHING BENEFIT REIMBURSEMENT AREAS FOR WATER, SEWER, AND STORM DRAINAGE IMPROVEMENTS WHEREAS, the City wishes to promote the orderly development of utility system improvements within city limits; and WHEREAS, pursuant to Title 13, Water and Sewers of the Port Townsend Municipal Code, connection to the City's water and sewer system and the construction of water, sewer and storm drainage improvements is a prerequisite to development of a property owner's parcel under sp~ified circumstances; and WHEREAS, pursuant to Chapter 35.91 RCW, the City is authorized to contract with developers for the construction of water, sewer or storm drainage imprOvements, which contracts may provide for reimbursement to the develoPers of a portion of the cost of such improvements by subsequent developers; and WHEREAS, the City Council has determined that under appropriate circumstances it will promote the health, safety, and general welfare of the citizens of Port Townsend to enter into such agreements establishing benefit reimbursement areas and charges and that rules and procedures should be specified for doing so, NOW, THEREFORE, the City Council of the City of Port Townsend does ordain as follows: Section 1. A new Chapter 13.28, Utility Latecomer Agreements, is added to the Port Townsend Municipal Code and shall be codified by the City's Code Reviser to read as follows: Chapter 13.28 UTILITY LATECOMER AGREEMENTS 13.28.010 Purpose/intent. 13.28.020 DefinitionS. ORD. No. 2515 13.28.030 13.28.040 13.28.050 13.28.060 13.28.070 13.28.080 13.28.090 13.28.100 13.28.110 13.28.120 13.28.130 13.28.140 13.28.150 13.28.160 13.28.170 13.28.180 Authorization - Minimum project size. Application - Design standards/cost estimates. Length of utility latecomer agreements. Public works director's determination - Appeal. Assessment reimbursement area and charge - Appeal. Written agreement - Payment of city costs in excess of application fee. Utility latecomer agreement must be recorded. Construction and acceptance of improvements - Recording of final fees. Ownership of improvements or systems. Defective work. Implementation of utility latecomer agreement - Prepayment requirement. Payments of utility latecomer charge. Rights and non-liability of city. Director's Authority - Violations. Existing latecomer agreements/completed construction. Severability clause. 13.28.010 Purpose/intent. A. Purpose. The purpose of this chapter is to define the rules and regulations for executing 15-year contracts between the city and developers for private construction of municipal water, sewer or storm drainage improvements by providing means for (1) partial cost recovery through a charge to later users who did not contribute to the capital costs and (2) the establishment of benefit areas defining which properties are subject to such charges. This chapter is also intended to implement RCW 35.91 as it now reads, or is later amended. B. Intent. It is intended that the processing of utility latecomer agreements under this chapter be independent from the regulatory reform time lines contained in Title 20. Further, nothing in this chapter shall be construed to create any city obligation to subsequently serve water to property within a reimbursement area if that property is removed from the city's out-of-city water service area during the term of the latecomer agreement. 13.28.020 Definitions. The following definitions shall apply to this chapter: A. "City" means the city of Port Townsend, a legally incorporated municipality represented by the elected city council and/or designated office or official. B. "Benefit area" means that area which includes parcels of real estate adjacent to, or likely to require a service'connection to, improvements made by a developer who has applied to the city for a utility latecomer agreement pursuant to this chapter. 2 ORD. No. 2515 C. "Cost of construction" means those costs incurred for design, acquisition of right-of-way and/or easements, labor, materials and installation required in order to create an improvement which complies with city standards. If the city engineer and the developer disagree about the "cost of construction" in a particular situation, the determination of the public works director shall be final. D. "Developer" means an individual, firm, corporation or partnership who proposes to improve real property within the city, or within 10 miles of its corporate limits. E. ',Developer reimbursement charge"means a fair pro-rata share to be paid by an owner of property within an area benefitted by the private construction of municipal water, sewer, aJ~d/or storm drainage improvements pursuant to this chapter, who did not contribute to the original cost of such improvements. The term "developer reimbursement charge" may be used interchangeably with the terms "utility latecomer charge" or "utility latecomer fee." F. "Director" or "public works director" means the director for the city of Port Townsend public works department or his or her designee. G. "Property owner" means the record owner, based on the records of the Jefferson County assessor, on the day the utility latecomer agreement is signed by the parties. H. "Utility latecomer agreement" means a written contract between the city as approved by the city council and executed by the mayor, and one or more developers providing both for construction of water, sewer, or storm drainage facilities and for partial reimbursement to the developer by owner(s) of properties benefitted by the improvements. Although referred to generically as "utility latecomer agreements" for ease of reference, such agreements will be processed separately as water latecomer agreements, sewer latecomer agreements, or storm drainage latecomer agreements, each with their own application fee, reimbursement benefit area and charge and notice requirements. I. "Water, sewer or storm drainage improvements" means the acquisition of right-of-way and/or easements, design, inspection and installation of improvements to city standards, as defined in RCW 35.91.020 "Water or sewer facilities," and is further defined to include the following: 1. "Water system improvements" includes, but is not limited to, such things as treatment facilities, reservoirs, wells, mains, and appurtenances such as valves, pumping stations, and pressure reducing stations; fire hydrants. ~ Fire hydrants are included in the definition of water system improvements only if required to be installed as a component of a water distribution system. Fire hydrants, standing alone, are not considered a water system improvement for which a latecomer agreement may be processed under this chapter. 3 ORD. No. 2515 2. "Sewer system improvements" includes, but is not limited to, such things as treatment facilities, mains and maintenance holes, pumping stations, force mains, inlets, catch basins, ditches, swales. This term also includes all sanitary sewer or storm Sewer improvements. 3. "Storm drainage improvements" includes, but is not limited to, such things as swales, detention ponds and similar natural approaches to storm water controls. 13.28.030 Authorization - Minimum project size. A. Any property owner whose property is located either (1) within the city who uses private funds to construct water, sewer, and/or storm drainage improvements to connect to existing city water, sewer, or storm drainage for the purpose of serving the area in which the real property of such owner is located, or (2) within 10 miles of the city's corporate limits who uses private funds to construct water improvements to connect to the city's out-of-city water service area, in order to serve the area in which the real property of such owner is located, may apply to the city to establish a utility latecomer agreement in order to recover a portion of the costs from subsequent users of the system(s). B. To be eligible for a utility latecomer agreement, the estimated total cost of the water, sewer or storm drainage improvements must be at least $2,500 separately or $4,000 combined, to be adjusted annually in accordance with the Engineering News-Record Index ("ENR"). The determ, ination of'eligibility shall be made by the public works director, based upon bids, engineering or architectural estimates, or other information deemed by the director to be a reliable basis for estimating cost. The determination of the director shall be deemed final and conclusive. 13.28.040 Application - Design standards/cost estimates. A. Application form - Fee. The application must be on a form provided by the city and accompanied by a non-refundable application fee in an amount as set forth in PTMC 3.36. 020, for each type of agreement. B. citY to Provide Design Standards. Prior to the application being submitted, the city will apprise the applicant of the design standards and specifications for the sewer, water or storm drainage improvements which will be required for the proposed project, consistent with city ordinances and/or adopted design manuals, as identified by the applicable development review process for in-city applicants, or the out-of-city reservation process for out-of-city applicants. C. Cost Estimate. Based on this information, the applicant must submit with the application a statement from a licensed contractor or engineer containing an itemized estimate of the total projected cost of the system improvements. 4 ORD. No. 2515 D. Additional Requirements. When deemed necessary in the discretion of the public works director to determine the benefit area and reimbursement charge, the city may require that the application be accompanied by any or all of the following: 1. A scaled vicinity drawing, stamped by'a licensed civil engineer or licensed land surveyor depicting the proposed improvements, their location and the proposed benefitted area; 2. Detailed construction plans and drawings of the entire improvements prepared and stamped by a professional engineer with specific expertise regarding design, operation and maintenance of public water systems, and certifying that the improvements design complies with city design standards and specifications; 3. The name and mailing address of each owner of record of property within the proposed benefit area, together with the legal description, the size and the county assessor's tax number for each property, such information to be certified as complete and accurate by the applicant. 4. A statement from a licensed contractor or professional engineer containing an itemized estimate of the total projected cost of the system improvements. 13.28.050 Length of utility latecomer agreements. The utility latecomer agreement shall be for a period of 15 years from the date of the latecomer agreement. 13.28.060 Public works director's determination - 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 water and sewer codes and environmental laws. 2. The proposed improvements fall within the definition of water, sewer, and/or storm drainage improvements. 3. The proposed improvements are not constructed or currently under construction; 4. The proposed improvements are consistent with the city's comprehensive plan, utility plan, and/or transportation plan; and 5 ORD. No. 2515 5: The city has the capability and capacity to service the water, sewer, and/or storm drainage improvements. B. Public Works Director's 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. Appeal. The final determination of the public works director is an administrative decision that may be appealed by an applicant to the city council. The appeal must be filed with the public works department within 15 calendar days of the date the final determination is mailed to the applicant. The procedures set forth in Chapter 1.14 PTMC shall apply to any appeal. The appeal must be accompanied by a filing fee in the amount set forth in Chapter 3.36. Any decision of the public works director not appealed from shall be final at the time made. In reviewing a final deterrcdnation, the city council shall apply the criteria set forth above, and shall uphold the administrative decision of the public works director, unless evidence clearly demonstrates that the criteria have been satisfied. 13.28.070 Assessment reimbursement area and charge - Appeal. A. Reimbursement Area Formula. The public works director shall formulate the benefit ~reimbursement area for all approved applicatio, ns based upon the following: 1. The benefit reimbursement area shall be based upon a determination of which property owners did not contribute to the original costs of the improvement and whose parcels are located so that they are adjacent to the improvements, or are likely to require a service connection to the improvements based on city codes and standards; (provided, however, that the public works director has the authority to remove from the benefit area those properties which are later developed but which do not subsequently tap into or use the water or sewer facilities). The applicant/property owner is not entitled to reimbursement for lots that are adjacent to the improvements if those lots are owned by the applicant/property owner at the time they apply for the utility latecomer agreement or at the time the utility improvements are constructed. ' 2. The estimated amount of the reimbursement charge shall be established so that each property will pay a fair, pro-rata share of the cost of construction of the water, sewer, and/or storm drainage improvements, which is proportional to the benefits which accrue to the property, determined at the city's sole discretion on an acre, front footage, equivalent water meter, or other equitable basis. B. Notice to Property Owners. A notice containing the benefit reimbursement area boundaries, preliminary charges, and a description of the property owner's fights to request a public hearing before the city council with regard to the area boundaries and special benefits and 6 ORD. No. 2515 charge, shall be forwarded by certified mail, return receipt requested, to the property owners within the proposed benefit reimbursement area. The public works department will maintain in its files a certificate of mailing. C. Appeal/request for hearing. 1. Any appeal requesting a heating pursuant to subsection B above, must be filed within 15 calendar days of the of date the notice is mailed to the property owners. The procedures set forth in Chapter 1~14 PTMC shall apply to any appeal. The appeal must be accompanied by a filing fee in the amount set forth in Chapter 3.36. Any decision of the public works director not appealed from shall be final at the time made. In reviewing a final determination, the city council shall apply the criteria set forth above, and shall uphold the administrative decision of the public works director, unless evidence clearly demonstrates that the criteria have been satisfied. 2. 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. 3. Any judicial appeal of the city council's determination must be filed and served within 21 days of the issuance of the decision. 13.28.080 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 periods or a.determination by the city council, the utility latecomer agreement, together with supporting documents shall be presented to the city council with a resolution authorizing the mayor to sign the utility latecomer agreement on behalf of the city. B. In the event costs incurred by the city for engineering or other professional consultant services required in processing the application exceed the amount of the application fee, the public works director shall so advise the city council and 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. 13.28.090 Utility latecomer agreement must be recorded. A. In order to become effective, a utility latecomer agreement must be recorded with the Jefferson County auditor. 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 benefitted area. 7 ORD. No. 2515 B. Within 30 days after receipt of evidence that the utility latecomer agreement has been recorded, the public works director shall cause a notice of additional connection charge with the Jefferson County auditor to be recorded, as required by RCW 65.08.170. 13.28.100 Construction and acceptance of improvements - Recording of final fees. A. After the utility 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 toany required obligation to repair defects. The public works director may require that the applicant/developer submit construction documents, prepared under the direction of and stamped by a professional engineer, as required by the state department of health pursuant to Washington Administrative Code 246.290, et seq., prior to acceptance of the improvements. B. An appropriate bill of sale, easement and any other document needed to convey the improvements to the city and 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. C. 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 benefitted area. 13.28.110 Ownership of improvements or systems. A. Upon apprOval of a utility latecomer agreement and the completion and acceptance of the construction, the improvement(s) and/or system(s) shall become the property of the city. The city may charge and receive fees for utility system use according to the city's established rates. In the alternative, upon acceptance of construction, the city may require a private maintenance agreement. B. A copy of the 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 water, sewer, or storm drainage facilities. In addition, the city may also require that the documents be provided on "AutoCAD," or another electronic format as specified by the city. The developer shall also 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. 8 ORD. No. 2515 C. No connection to, or other use of, the facilities will be allowed or permitted until the city has officially accepted the construction. D. Transfer of ownership to the city shall be clear of all encumbrances. 13.28.120 Defective work. The applicant shall be responsible for all work found to be defective within one year after the date of acceptance of the 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 water and sewer codes or any adopted design standards. 13.28.130 Implementation of utility latecomer agreement - Prepayment requirement. A. Upon recording, the utility 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 an owner later develops his or her property within 15 years and is not required to install similar utility 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 utility latecomer agreement. B. Connection to or use of the system(s) by property owners within the benefit area shall be prohibited and development permission shall not be granted unless the city has received payment of the utility latecomer charge, including administrative costs. Unless modified in the agreement, the city shall add 10 percent, but not less than $20, to each utility latecomer charge, to be used by the city to defray the costs of labor, bookkeeping, and accounting necessary to administer the agreement, to be adjusted annually in accordance with ENR Index. No building permit shall be issued until reimbursement payment is made. C. The utility latecomer charge shall be in addition to the usual and ordinary charges, including hook-up fees, system development charges, and any other fees which must be paid by persons applying for city water or sewer service, as required by city ordinances. D. The city will exercise its best efforts to assure compliance with this section; however, in no event shall the city incur liability for an unauthorized connection to or use of the facilities. E. Where any tap or connection is made into any water, sewer or ~torm drainage system(s) without payment being made as required by this chapter, the city may order the unauthorized tap or connection and all connecting'pipe located in the city right-of-way removed without any liability to the city or city officials. 9 ORD. No. 2515 13.28.140 Payments of utility latecomer charge. A. The city shall pay the amounts due the beneficiary within 60 calendar days of receipt, subject to section C below, by certified mail, return receipt requested. B. When the utility 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. Throughout the term of the agreement the developer 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 entitled to benefits under the utility latecomer agreement. The developer may not assign any rights under the utility 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. Any funds not claimed by the developer 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, 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 receive a response by the expiration of the 180 days, the funds shall be revenue to the city sewer, water or storm water utility or as allowed by law. 13.28.150 Rights and non-liability of city. A. The city reserves the right to refuse to enter into any utility latecomer agreement or to reject any application thereof. B. All applicants for utility 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. 13.28.160 Director's Authority - Violations. Whenever the director determines that a condition exists in violation of this chapter, or any code or standard required to be adhered to by this chapter, he or she is authorized to enforce the provisions of this chapter and/or to order correction and discontinuance of any violation pursuant to the procedures set forth in Chapter 20.10, PTMC. 10 ORD. No. 2515 13.28.170 Existing latecomer agreements/completed construction. A. Existing Agreements. Nothing in this chapter shall be construed as changing or modifying any existing utility latecomers agreement between the city and a developer, which shall remain in full force and effect and subject to its terms. B. Through April 1, 1997, property owners may apply to the city for latecomer agreements for water, sewer or storm drainage improvements already constructed. 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. 13.28.180 Severability clause. If any clause, sentence, paragraph, section, phrase or part of this Ordinance 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 Ordinance. To this end, the provisions of each clause, sentence, paragraph, section or part of this law are declared severable. (Ord. 2515 § 1, 1996.) This ordinance shall take effect on April 1, 1996, Read for the first, second, and third times and passed by the City Council of the City of Port Townsend, Washington, at a regular meeting thereof, held this 18th day of March, 1996. Attest: ~~erk ApB to Fo : 03/19/96 [95-030] Ord\{Chl3-28.doc} Julig/~lcCulloch, Mayor 11 ORD. No. 2515