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