Chapter 16.35
LATECOMER'S AGREEMENTS

Sections:

16.35.010  Authority.

16.35.020  Application.

16.35.030  Preliminary notice of latecomer's agreement and appeal rights.

16.35.040  Preliminary approval.

16.35.050  Final latecomer's agreement.

16.35.060  Execution, recording and notice.

16.35.070  Contract finality.

16.35.080  Title to improvement and assignment of benefit.

16.35.090  Payment of latecomer's agreement fee.

16.35.100  Tender of fee.

16.35.110  Release of assessment.

16.35.120  Term of life.

16.35.130  City not responsible.

16.35.140  Improvements constructed by developer.

16.35.150  Interest.

16.35.010 Authority.

Pursuant to Chapter 35.72 RCW, the City has the discretionary power to grant latecomer's agreements to owners of real estate for the reimbursement of a pro rata portion of the original costs of public street improvements as required by the City's street standards. The authority to approve a latecomer's agreement is vested in the City Council. (Ord. O-03-249 § 1).

16.35.020 Application.

Application for a latecomer's agreement shall be made 30 days prior to issuance of the Construction Permit. Application may be by letter to the Director of Public Works requesting a latecomer's agreement, or upon forms prepared by the Public Works Department. Any application for a latecomer's agreement shall contain the following information:

A. Legal description of applicant's property;

B. Legal description of the benefited properties;

C. Vicinity maps of applicant's property, benefiting properties, and the location of the improvement;

D. Estimated cost data and inventory for the improvements;

E. Proposed pro rata share of the cost of the improvement to be borne by the benefiting properties, and a proposed method of assessment of that pro rata share to the individual benefiting properties;

F. Payment of full amount of nonrefundable processing fee of $2,000. (Ord. O-03-249 § 1).

16.35.030 Preliminary notice of latecomer's agreement and appeal rights.

The Public Works Department shall determine the preliminary latecomer's area boundaries and draft the legal description of the latecomer's boundary and prepare a preliminary latecomer's boundary map. The City Clerk shall mail a notice to all owners of record of property within the proposed latecomer's boundary and to the owner or developer seeking the latecomer's agreement. The notice shall include an approximation of the preliminary assessment, the proposed latecomer's boundary map, and the description of the property owner's rights and options to participate in the latecomer's agreement. This preliminary notice form will not be recorded with King County. The information in the notice will serve as the basis for the conduct of public informational meetings with potentially benefiting property owners, if needed. Within 20 days of the date of the mailing, any property owner may submit an appeal in writing to the City Council, c/o City Clerk. The appeal must be accompanied by a $125.00 nonrefundable fee. Appeal will be limited to the issue of whether or not a specific property should be included in the latecomer's area. The City Council, by voice vote, may delegate to the Hearing Examiner the authority to conduct the requisite public hearing and establish the record, and formulate a recommendation to the City Council. The City Council's ruling shall be determinative and final. (Ord. O-03-249 § 1).

16.35.040 Preliminary approval.

A. The City Council may grant preliminary approval for a latecomer's agreement based upon the information from the Public Works Director, or the City Council may request further information from the applicant and/or the Director, or the City Council may deny the preliminary latecomer's agreement. As part of any preliminary approval, the Council shall indicate the duration for which the latecomer's agreement will be approved after completion of the improvements, which approval period shall not be more than 15 years. No extensions will be granted beyond the period of time established by City Council.

B. Following preliminary approval by the City Council, the holder of the latecomer's agreement shall submit to the Director any further information requested by the Director. (Ord. O-03-249 § 1).

16.35.050 Final latecomer's agreement.

A. Preparation of Proposed Final Assessment Roll. Following construction, the Public Works Department shall prepare a final proposed latecomer's agreement which will include a legal description and a map of the latecomer's boundary. The cost of the improvements will be spread among the property owners based upon their pro rata share of said costs. The costs will become payable upon the issuance of a City permit authorizing the benefiting property owner(s) to construct improvements that would allow the user(s) property to derive direct benefit from these facilities. The method of assessment to be used will be one or more of the following methods, unless otherwise approved or directed by the City Council:

1. Front foot method, whereby the pro rata share would be allocated based on the percentage of total front footage each benefiting property has adjoining the improvement.

2. Zone front foot method, whereby the pro rata share would be allocated based on the percentage of total front footage each benefiting property within a specified zoning classification has adjoining the improvement.

3. Square footage method where the pro rata share would be allocated based on the percentage of square feet each benefiting property has which adjoins the improvement.

4. Trip generation (traffic) method where the pro rata share would be allocated based on the percentage of total trips each benefiting property is estimated to produce when developed or redeveloped.

5. Other equitable method, as determined by the City.

6. Any combination of the above methods.

The method(s) used and the dollar amount(s) will be included in the final latecomer's agreement.

B. Final Notice of Latecomer's Agreement. The City Council shall receive the final latecomer's agreement and, if the agreement is approved, shall direct the staff to send out notices of the latecomer's potential assessment and the right to appeal. The City Clerk shall mail a notice to all owners of record of property within the latecomer's boundary and to the owners or developer seeking the latecomer's agreement. The notice shall include the final assessment per unit charge, the legal description, a map of the latecomer's boundaries, and the description of the property owner's rights and options to participate in the latecomer's agreement.

C. Appeal.

1. Within 20 days of the date of the mailing, any property owner may submit an appeal in writing to the City Council, c/o City Clerk. An appeal must include a statement of claimed errors concerning the proposed assessment, and must be accompanied by a $125.00 nonrefundable fee. Errors which are not set forth in writing and which do not adhere to the criteria listed below will not be considered.

2. Objections by a benefiting property owner to the recording of a potential assessment against their property does not constitute a valid appeal.

3. Errors identified in an appeal must be related to cost, methodology for cost distribution, or benefit to the property as described below:

a. Cost. If the benefiting property owner contests these costs, he or she must provide a basis for the claimed discrepancy, such as an estimate from a contractor or other reliable source.

b. Costs Methodology. If the benefiting property owner contests the cost methodology used, they shall show why it is not equitable and provide their suggested alternate method of assessment and the justification for its use in place of the staff-recommended method.

c. Benefit. If a benefiting property owner contests benefit, he or she shall provide a statement or other documentation explaining why a particular parcel has no future potential benefit.

4. Upon receipt of a proper appeal and the required fee, the City Clerk shall transmit the appeal and the official file to the City Council. The City Council may delegate to the Hearing Examiner the responsibility to conduct a public hearing, establish the record, and provide a written report containing a recommendation to the City Council. If such authority is delegated to the Hearing Examiner, following the public hearing, the Hearing Examiner shall issue a written recommendation which is mailed to parties of record. Any party of record may request reconsideration within 14 days of the issuance of the Hearing Examiner's report. Following expiration of the reconsideration period, the Hearing Examiner shall submit his written recommendation to the City Council on the Council meeting agenda for concurrence. The City Council may affirm, alter or deny the Hearing Examiner's recommendation.

D. Council Action. If no appeal is filed, the City Council may grant the latecomer's agreement and authorize the owner or developer, Mayor and City Clerk to sign the document. Following approval or alteration of the Hearing Examiner's recommendation, if any, on appeal, the Council may grant the latecomer's agreement and authorize the owner or developer, Mayor and City Clerk to sign the document. (Ord. O-03-249 § 1).

16.35.060 Execution, recording and notice.

The City Clerk shall mail the latecomer's agreement to the owner or developer to be signed, notarized and returned within 60 days of the date of Council approval for execution by the Mayor and City Clerk. If not consummated within the 60-day period, the latecomer's agreement will become null and void. The City Council may give consideration to extending this period by a showing of hardship or excusable neglect on the part of the holder of the latecomer's agreement. The fully executed latecomer's agreement shall be recorded in the official property records of King County, Washington. (Ord. O-03-249 § 1).

16.35.070 Contract finality.

Once the latecomer's agreement together with a legal description and a map of the latecomer's boundary are recorded with the County, it shall be binding on owners of record within the assessment area. Following receipt from King County of the recorded latecomer's agreement, the City Clerk shall mail a copy of the recorded agreement to the holder of the latecomer's agreement. (Ord. O-03-249 § 1).

16.35.080 Title to improvement and assignment of benefit.

Before the City will collect any latecomer's fee, the holder of the latecomer's agreement shall transfer title to all of the improvements under the latecomer's agreement to the City. The holder of the latecomer's agreement shall also assign to the City the benefit and right to the latecomer's fee should the City be unable to locate the holder of the latecomer's agreement to tender any latecomer's fee that the City has received. The holder of the latecomer's agreement shall be responsible for keeping the City informed of their correct mailing address. Should the City be unable to locate the holder of the latecomer's agreement in order to deliver a latecomer's fee, the City shall undertake an independent investigation to determine the location of the holder of the latecomer's agreement. Should the City, after a good faith attempt to locate the holder of the latecomer's agreement, be unable to do so, the latecomer's fee shall be placed in the special deposit fund held by the City for two years. At any time within the two-year period the holder of the latecomer's agreement may receive the latecomer's fee, without interest, by applying to the City for that latecomer's fee. After the expiration of the two-year period, all rights of the holder of the latecomer's agreement to that fee shall expire, and the City shall be deemed to be the owner of those funds. (Ord. O-03-249 § 1).

16.35.090 Payment of latecomer's agreement fee.

A. Latecomer fees triggered by improvements or development are due and payable before the first of the following occurs:

1. The issuance of a Development Permit; or

2. The recording of a single-family residential plat or single-family residential short plat.

B. During the period that the latecomer's agreement is in place, if the City adopts revised plans, regulations, or standards that make the latecomer's agreement improvements inconsistent or obsolete; and if the City subsequently undertakes, requires, or the City agrees to the property owner's replacement of the latecomer's agreement improvements; then the property owner shall be given a credit against his/her latecomer's agreement fees. The value or cost of the property owner's proportionate share of the construction of the improvement shall be determined at the time the improvements are replaced, and the value or cost must be acceptable to and approved by the Public Works Director.

C. Whenever a benefiting property owner has agreed to a dedication of land or to make improvements included in the latecomer's agreement, the property owner shall be entitled to a credit for the value of the land or the cost of construction against the fees that would be chargeable under the latecomer's agreements provided under this chapter. The value or costs of the construction of those improvements will be estimated at the time they are constructed and approved by the Public Works Director. (Ord. O-03-249 § 1).

16.35.100 Tender of fee.

When the City has received the funds for a latecomer's fee, it shall forward that fee to the current holder of the latecomer's agreement at the current address of the holder of the latecomer's agreement that is on file with the City, within 30 days of receipt of the funds. Funds received by negotiable instrument, such as a check, will be deemed received 10 days after delivery to the City. Should the City fail to forward the latecomer's fee to the holder of the latecomer's agreement through the City's sole negligence, then the City shall pay the holder of the latecomer's agreement simple interest on those monies at the rate of two percent per annum. However, should the holder of the latecomer's fee not keep the City informed of his/her current correct mailing address, or should the holder otherwise be negligent and thus contribute to the failure of the City to pay over the latecomer's fee, then no interest shall accrue on late payment of the latecomer's fee. (Ord. O-03-249 § 1).

16.35.110 Release of assessment.

When all funds are received for a latecomer's fee, the City, within 30 days of receipt of the funds, shall prepare a notice of full payment which shall be recorded with King County. (Ord. O-03-249 § 1).

16.35.120 Term of life.

When authorized by the City Council, a latecomer's agreement can be granted for a period not to exceed 10 years. No extensions will be granted beyond the period of time established by City Council. The latecomer's agreement will expire at the end of the period of time established by the City Council. (Ord. O-03-249 § 1).

16.35.130 City not responsible.

By instituting the latecomer's agreement, the City does not agree to assume any responsibility to enforce the latecomer's agreement. The final latecomer's agreement recorded with King County will be a matter of public record and will serve as a notice to the owners of the potential assessment should the benefiting property owner(s) construct improvements that allow the user(s) property to directly benefit from the facility. The holder of the latecomer's agreement has responsibility to monitor those parties connecting to the improvement. Should the City become aware of such a connection, it will use its best efforts to collect the latecomer's fee, but shall not incur any liability should it inadvertently fail to collect the latecomer's fee. (Ord. O-03-249 § 1).

16.35.140 Improvements constructed by developer.

Improvements shall be installed by owner or developer per approved plans following issuance of the construction permit and payment of applicable permit and development fees. The notification and appeal process established by this chapter may result in a decision by the City Council which would alter the potential payment to the beneficiary of the latecomer's agreement. If the beneficiary proceeds to construction prior to final City Council approval of the latecomer's agreement, the beneficiary does so at the beneficiary's own risk. (Ord. O-03-249 § 1).

16.35.150 Interest.

No interest shall be added to assessments collected under private developer held latecomer's agreements. (Ord. O-03-249 § 1).