HomeMy WebLinkAbout3274 Amending Port Townsend Municipal Code Chapter 13.04 Utility Latecomer Agreements Ordinance 3274
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ORDINANCE NO. 3274
AN ORDINANCE OF THE CITY OF PORT TOWNSEND, WASHINGTON,
AMENDING PORT TOWNSEND MUNICIPAL CODE CHAPTER 13.04 UTILITY
AGREEMENTS
RECITALS:
The City Council of Port Townsend finds as follows:
1. The Chapter 13.04 of the Port Townsend Municipal Code implements Chapters
35.91 and 35.92 of the Revised Code of Washington that allows for utility
latecomer agreements.
2. The City Council approved Ordinance 2515 on March 18, 1996, creating the
City's utility latecomer program.
3. The City Council amended the utility latecomer program by Ordinance 2579
passed on April 21, 1997, and again in Ordinance 3051 approved on November
15, 2010.
4. The City Council now wishes to make the utility latecomer code consistent with
current City practices for utility latecomer agreements and with Washington State
law.
NOW, THEREFORE,the City Council of the City of Port Townsends hereby ordains as
follows:
Section 1. Chapter 13.04 of the Port Townsend Municipal Code Street Latecomer Agreements is
amended as indicated in Exhibit A.
Section 2. Severability. If any sentence, clause or phrase of this ordinance should be held to be
invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity or constitutionality of any other section, sentence,
clause or phrase or work of this ordinance.
Section 3. Effective Date. This ordinance shall take effect and be in force five days after the date
of its publication in the manner provided by law. Publication of this ordinance shall be by
summary thereof consisting of the title.
Ordinance 3274
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ADOPTED by the City Council of the City of Port Townsend, Washington, at a regular
meeting thereof, held this 18th day of October 2021.
Michelle Sandoval
Mayor
Attest: Approved as to form:
Joanna Sanders MMC 1 (--e x'Voo � �
Ieo
City Clerk City Attorney
Ordinance 3274 Exhibit A
Page 1 of 8
EXHIBIT A
Chapter 13.04
UTILITY LATECOMER AGREEMENTS
Sections:
13.04.010 Purpose—Intent.
13.04.020 Authorization—Minimum project size.
13.04.030 Application—Design standards—Cost estimates.
13.04.040 Length of utility latecomer agreements.
13.04.050 Public works director's determination—Appeal.
13.04.060 Assessment reimbursement area and charge—Appeal.
13.04.070 Written agreement—Payment of city costs in excess of application fee.
13.04.080 Utility latecomer agreement must be recorded.
13.04.090 Construction and acceptance of improvements—Recording of final fees.
13.04.100 Ownership of improvements or systems—As-builts.
13.04.110 Defective work.
13.04.120 Implementation of utility latecomer agreement—Prepayment requirement.
13.04.130 Payments of utility latecomer charge.
13.04.140 Rights and nonliability of city.
13.04.150 Director's authority —Violations.
13.04.160 Existing latecomer agreements—Completed construction.
13.04.170 Alternative financing method.
13.04.010 Purpose—Intent.
A. Purpose. The purpose of this chapter is to define the rules and regulations for executing
4320-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 Chapters 35.91, 35.92, and other provisions of the Revised Code of Washington, as
it now reads, or is later amended.
B. Intent. It is intended that the processing of utility latecomer agreements under this chapter be
p independent from the regulatory reform time-lines contained in DTr-nr C Title 20 PTMC. 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.
13.04.020 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
Ordinance 3274 Exhibit A
Page 2 of 8
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 $ , - �5 separately or $4-,0002,,50 combined,
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 bids,
engineering or architecture 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.
13.04.030 Application—Design standards —Cost estimates.
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
for each type of agreement.
B. In addition to the latecomer application, the applicant must meet all of the design and other
applicable requirements of Chapters 13.11 through 13.14 PTMC for water, Chapters 13.21
through 13.23 PTMC for sewer and Chapters 13.31 through 13.32 PTMC for stormwater.
C. Engineering Design Standards Manual. 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.
The procedures and requirements for installing utility improvements shall be as outlined in the
engineering design standards manual.
D. Cost Estimate. 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.
E. 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 benefited area;
2. 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;
3. A statement from a licensed contractor or professional engineer containing an itemized
estimate of the total projected cost of the system improvements.
Ordinance 3274 Exhibit A
Page 3 of 8
13.04.040 Length of utility latecomer agreements.
The utility latecomer agreement shall be for a period of 4-520 years from theme date ef-the
latecomer agreement is signed 1?y b th l24aJk-11.
13.04.050 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 the city of Port Townsend Municipal Code for water, sewer and
stormwater 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. The city has the capability and the capacity to service the water, sewer, and/or storm
drainage improvement.
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. The appeal must be filed with the public works department
within 4-520 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 by council resolution. Any decision of the
public works director not appealed from shall be final at the time made. In reviewing a final
determination,t-1 e -i-t-y-e Liiiei4 ,r-hearing examiner) 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.
13.04.060 Assessment reimbursement area and charge—Appeal.
A. Reimbursement Area Formula. The public works director shall formulate the benefit
reimbursement area for all approved applications 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
Ordinance 3274 Exhibit A
Page 4 of 8
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 rights to request a public hearing
before the hearing examiner with regard to the area boundaries and special benefits and charge
shall be forwarded by certified mail, return receipt requested, to the property owners within the
proposed benefit reimbursement area. The pkbli� a� �l:a��tt �t, will maintain in its files
a eeAi 4 te-declar tio;s of mailing.
C. Appeal/Request for Hearing.
1. Any appeal requesting a hearing pursuant to subsection B of this section must be filed
within 4-520 calendar days of the date the notice is mailed to the property owners. 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. 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 from shall be final at the time made. In reviewing a final determination, the city
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 eity ,,,,,,nei nor hearing examiner)may approve, modify or reject the benefit
reimbursement area and/or charges. This determination shall be final.
Q 3. Any judicial appeal of the ei4y._c)tttieiV-s4-or-hearing examiner's)determination must be
filed and served within 21 days of the issuance of the decision.
13.04.070 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 eit�-
ee-Linei4liearin ; the utility latecomer agreement, together with supporting documents,
shall be presented to the city manager 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 manager, and city manager 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.
Ordinance 3274 Exhibit A
Page 5 of 8
13.04.080 Utility latecomer agreement must be recorded.
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 legally describing all properties within the benefit area, which
shall constitute the notice required by RCW 65.08.170.
13.04.090 Construction and acceptance of improvements-Recording of final fees.
A. After 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 .evel<g a r-ii�ty4)c -iii ttr fai ltir.it�i,-fie
aad4he c-lty s r s e liablllty tl� �v r -t3 1�l tec r et-a r t to s e la n
e All construction, inspection and testing shall conform to other sections of this code and
to the engineering design standards manual.
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. The total cost of the im rovements must
be submitted to the city within 120 da Fs ��1, rni)letion of the improvements,
C. The final cost of the improvements shall be reviewed against the preliminary assessments
established by the city and by the city as a_basis for Upon a
showing of good cause, the ag eenient assessed car le 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. p =aw tavisflos �aiet$ s sai � tl � bllaata-
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13.04.100 Ownership of improvements or systems -As-builts.
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. As-built submittals shall comply
with the requirements of the engineering design standards manual.
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.
Ordinance 3274 Exhibit A
Page 6 of 8
13.04.110 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. Chapter 13.01 PTMC contains provisions for
the public works director to require a performance bond for the improvements.
13.04.120 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 4-520 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 $20.00, 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 storm 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.
13.04.130 Payments of utility latecomer charge— Notice of char a of address re tired.
A. The city shall pay the amounts due the beneficiary within 60 calendar days of receipt, subject
to subsection C of this section, 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 lease of lied which may be
recorded by the owner yQo,t lae�c v�l ar xc.
C. Throughow die-terinEvery two years t'roialthe date the arcement is executed -oA1t-
agn-ement--the developer shall notify the city in writing of any change to€his or her name(s)1
tete hor e nnrrn eor address(es). If tl?e clew el' erl.rro L( owvri:er fails to comn1v with the
not :li atio t „ c�� is within_ l �s ofthe�sp c ified time, the city may collect any
rciiobUrseinent rands owed to the develover/property owner, bsen"ueh-notiee t,41he 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
Ordinance 3274 Exhibit
Page 7 of'8
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 not receive a response by the expiration of the 180
days, the funds shall be revenue to the city sewer, water or stormwater utility or as allowed by
law.
13.04.140 Rights and nonliability of city.
A. lir accordance
with 'Washin ton State law, Tthae 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.
13.04.150 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.
13.04.160 Existing latecomer agreements—Completed construction.
Q Aista: ��� eentlothing in this chapter shall be construed as changing or modifying any
existing utility latecomer agreement between the city and a developer, which shall remain in full
force and effect and subject to its terms.
Wale
13.04.170 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
Ordinance 3274 Exhibit A
Page 8 of 8
specified the conditions of its participation in an ordinance. The city may be reimbursed only for
the costs of the improvements that benefit the 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.