B-140837, NOVEMBER 6, 1959, 39 COMP. GEN. 363

B-140837, NOVEMBER 6, 1959, 39 COMP. GEN. 363

CONTRACTS - MUNICIPAL SERVICE CHARGES - SEWER CONNECTIONS - IMPROVEMENTS CHARGES BY A MUNICIPALITY FOR SEWER CONNECTIONS INCIDENT TO IMPROVEMENTS BEING MADE TO A FEDERAL GOVERNMENT BUILDING ARE NOT TO BE CONSIDERED TO BE A SPECIAL ASSESSMENT OR TAX LEVIED AGAINST THE FEDERAL GOVERNMENT CONTRARY TO ITS CONSTITUTIONAL IMMUNITY BUT ARE INSTEAD CHARGES FOR THE PRIVILEGE OF CONNECTING THE BUILDING WITH A MUNICIPALLY OWNED SEWER PRESUMABLY TO BE APPLIED TO THE COST OF SEWER CONSTRUCTION AND, THEREFORE, ARE PROPERLY FOR PAYMENT BY THE GOVERNMENT, NOTWITHSTANDING THAT THE CONSTRUCTION IS INCIDENT TO IMPROVEMENTS AS DISTINGUISHED FROM NEW CONSTRUCTION AND THAT THE PAYMENT IS REQUIRED BY MUNICIPAL ORDINANCE TO BE DEPOSITED INTO A SEWER CONSTRUCTION ACCOUNT. CHARGES FOR CONNECTIONS TO A MUNICIPAL SEWER, INCIDENT TO CONSTRUCTION OF IMPROVEMENTS TO A FEDERAL GOVERNMENT BUILDING, UNDER A CONTRACT WHICH REQUIRES THE CONTRACTOR TO PAY ALL FEES AND CHARGES FOR CONNECTIONS TO OUTSIDE SERVICES AND FOR USE OF PROPERTY OUTSIDE THE SITE MUST BE REGARDED AS AN OBLIGATION OF THE CONTRACTOR.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, NOVEMBER 6, 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1959, REQUESTING A DECISION AS TO PAYMENT OF CERTAIN CHARGES PERTAINING TO SEWER CONNECTIONS INVOLVED IN IMPROVEMENTS TO THE LOS ANGELES INTERAGENCY MOTOR POOL, LOS ANGELES, CALIFORNIA.

IT IS STATED IN YOUR LETTER THAT YOUR ADMINISTRATION CONTRACTED WITH G. HARMAN CONSTRUCTION COMPANY TO MAKE THE IMPROVEMENTS FOR A PRICE OF $23,456 AND THAT THE CONTRACT INCLUDES A PROVISION AS FOLLOWS:

THE CONTRACTOR SHALL OBTAIN AND PAY ALL FEES AND CHARGES FOR CONNECTIONS TO OUTSIDE SERVICES AND FOR USE OF PROPERTY OUTSIDE THE SITE.

CITY ORDINANCE NO. 77,000 OF THE LOS ANGELES MUNICIPAL CODE, A COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER, REQUIRES PAYMENT OF CERTAIN FEES OR CHARGES PERTAINING TO SEWER CONNECTIONS. SECTION 64 DEFINES THE KINDS OF SEWERS AND CONNECTIONS REFERRED TO IN THE ORDINANCE.

SECTION 64.12 (A) PROVIDES:

NO PERSON SHALL MAKE, CONSTRUCT, ALTER, OR REPAIR ANY HOUSE CONNECTION SEWER, BONDED HOUSE CONNECTION SEWER, SPECIAL HOUSE CONNECTION SEWER, INDUSTRIAL WASTE SEWER CONNECTION, INDUSTRIAL WASTE STORM DRAIN CONNECTION, STORM DRAIN CONNECTION, OR SPECIAL DRAINAGE CONNECTION, OR ANY PORTION OF ANY SUCH SEWER OR STORM DRAIN CONNECTIONS, INCLUDING SAMPLING MANHOLES, OR CONNECT ANY HOUSE SEWER, SOIL PIPE, OR PLUMBING TO ANY SUCH SEWER OR STORM DRAIN CONNECTIONS OR TO A SEWER OR STORM DRAIN UNDER THE JURISDICTION OF THE CITY OF LOS ANGELES, WITHOUT FIRST OBTAINING A WRITTEN PERMIT THEREFOR FROM THE BOARD OF PUBLIC WORKS.

SECTION 64.15 (C) IS AS FOLLOWS:

IN THE CASE OF A HOUSE CONNECTION TO A BONDED SEWER, A SPECIAL HOUSE CONNECTION SEWER, AN INDUSTRIAL WASTE STORAGE DRAIN CONNECTION, AN INDUSTRIAL WASTE SEWER CONNECTION, OR A SPECIAL DRAINAGE CONNECTION, ALL AS REFERRED TO IN SECTIONS 64.00, 64.30 AND 94.51 OF THIS CODE, THE PERMIT FEE SHALL BE $18.00. NO SPECIAL OR BONDED SEWER HOUSE CONNECTION PERMIT WILL BE ISSUED UNTIL THE PROVISIONS OF SECTION 64.18 HAVE BEEN COMPLIED WITH.

SECTION 64.16.1 (A) READS AS FOLLOWS:

BEFORE GRANTING A PERMIT TO CONNECT ANY LOT OR PARCEL NOT ALREADY CONNECTED TO A PUBLIC SEWER OR HOUSE CONNECTION SEWER PURSUANT TO THE PROVISIONS OF SEC. 64.12, EXCEPT APPLICATIONS FILED BY A DEPARTMENT OF THIS CITY, THE BOARD SHALL REQUIRE, IN ADDITION TO ALL OTHER CHARGES AND FEES IMPOSED BY SEC. 64.12 TO SEC. 64.22, INCLUSIVE, THE PAYMENT BY THE APPLICANT THEREFOR OF A FEE FOR A CONNECTION CHARGE FOR OUTLET FACILITIES OF AN AMOUNT EQUAL TO $400 PER ACRE OF THE PROPERTY TO BE SERVED, UNLESS:

1. THE PROPERTY HAD PREVIOUSLY PAID AN OUTLET OR OFF-SITE SEWER CHARGE EITHER IN MONEY OR BY THE CONSTRUCTION OF SAID OUTLET OR OFF SITE SEWERS; OR

( AMENDED BY ORDINANCE NO. 110,308)

2. THE PROPERTY IS SERVICED BY A SEWER CONSTRUCTED UNDER AN ASSESSMENT ACT PROCEEDING, THE ORDINANCE OF INTENTION FOR WHICH WAS ADOPTED PRIOR TO SEPTEMBER 19, 1957.

3. THE PROPERTY PARTICIPATED IN THE COST OF THE SEWER CONSTRUCTED BY PERMIT FOR WHICH THE CONSTRUCTION PERMIT HAD BEEN ISSUED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION.

SECTION 64.18 (A) IS AS FOLLOWS:

PERSONS DESIRING A PERMIT TO CONNECT TO OR CONSTRUCT A SPECIAL HOUSE CONNECTION SEWER OR BONDED SEWER HOUSE CONNECTION SEWER SHALL MAKE A WRITTEN APPLICATION TO THE BOARD, GIVING SUCH INFORMATION AS THE BOARD MAY REQUIRE. THE BOARD MAY ISSUE A PERMIT TO MAKE SUCH SEWER CONNECTION UPON PAYMENT OF THE FEES PROVIDED IN SECTION 64.15 OF THIS CODE, AND IN ADDITION THERETO THERE SHALL BE A CHARGE PAYABLE TO THE BOARD OF AN AMOUNT EQUAL TO $5.00 PER FRONT FOOT OF THE LOT SOUGHT TO BE CONNECTED, IF SAID LOT IS RECTANGULAR AND HAS AN ORDINARY AREA OF APPROXIMATELY 6500 SQUARE FEET.

SECTION 64.19.1 (A) PROVIDES:

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CODE, ALL MONEYS COLLECTED PURSUANT TO SECTIONS 64.11.2, 64.15, 64.16.1 AND 64.18, REFERRED TO IN SUBSECTION (D) OF SECTION 64.18, SHALL BE DEPOSITED IN THE PRIVATE SEWER CONSTRUCTION ACCOUNT IN THE BOARD OF PUBLIC WORKS TRUST FUND.

IT IS INDICATED IN YOUR LETTER AND ITS ENCLOSURES THAT PAYMENT OF THE THREE CHARGES TOTALING APPROXIMATELY $1,726 UNDER THE ABOVE-QUOTED PROVISIONS OF THE ORDINANCE IS DEMANDED BY THE CITY OF LOS ANGELES. THE QUESTIONS FOR CONSIDERATION ARE STATED IN YOUR LETTER AS FOLLOWS:

* * * (1) WHETHER UNDER THE TERMS OF THE CONTRACT AND THE ORDINANCE PROVISIONS SET OUT ABOVE THE CONTRACTOR IS REQUIRED TO PAY FOR THE THREE CHARGES MENTIONED WHICH WOULD APPROXIMATE $1,726 (WHICH THE CONTRACTOR CONTENDS HE IS NOT REQUIRED TO PAY, PARTICULARLY IN VIEW OF THE SMALL AMOUNT OF THE ENTIRE CONTRACT INVOLVED AND COUPLED WITH THE FACT THAT SUCH A REQUIREMENT ON THE PART OF THE CONTRACTOR WOULD APPEAR TO BE UNCONSCIONABLE), OR (2) IF NOT, IS THE GENERAL SERVICES ADMINISTRATION AUTHORIZED TO PAY SUCH CHARGES FROM APPROPRIATED FUNDS, EVEN THOUGH THESE CHARGES ARE CALLED "FEES," "PERMITS" AND "CONNECTION" CHARGES BUT ARE SUBSEQUENTLY USED FOR SEWERAGE CONSTRUCTION FUNDS.

IT IS NOTED THAT THE VARIOUS FEES AND CHARGES FIXED BY THE ABOVE QUOTED PROVISIONS OF THE ORDINANCE RELATE TO VARIOUS KINDS OF SEWERS AND CONNECTIONS. THE RECORD HERE AVAILABLE DOES NOT SHOW SATISFACTORILY WHETHER THE SEWERS AND CONNECTIONS INVOLVED IN THIS MATTER ARE IN FACT SUCH AS TO MAKE ALL THREE CHARGES APPLICABLE AND REQUIRE THEIR PAYMENT. FOR EXAMPLE, IT IS NOTED THAT SECTION 64.18 (A) OF THE ORDINANCE RELATES ONLY TO "A SPECIAL HOUSE CONNECTION SEWER OR BONDED SEWER HOUSE CONNECTION SEWER.' IT IS SUGGESTED, THEREFORE, THAT THE QUESTION OF THE APPLICABILITY OF THE VARIOUS CHARGES BE CAREFULLY CONSIDERED AND DETERMINED, IF NOT HERETOFORE DONE.

WHILE THE GOVERNMENT MAY NOT BE SUBJECTED TO OR REQUIRED TO PAY A SPECIAL ASSESSMENT OR TAX SOUGHT TO BE LEVIED AGAINST IT, IT HAS BEEN HELD THAT IN THE CASE OF THE CONNECTION OF A NEW GOVERNMENT BUILDING WITH A MUNICIPALLY CONSTRUCTED AND OWNED SEWER A CHARGE MADE BY THE MUNICIPALLY FOR THE PRO RATA COST OF THE CONSTRUCTION OF THE SEWER, THE GOVERNMENT AUTHORITIES BEING ADVISED BEFORE THE CONNECTION WAS MADE THAT THERE WOULD BE SUCH A CHARGE, WAS A CHARGE FOR THE PRIVILEGE OF CONNECTING THE BUILDING WITH THE SEWER AND, AS SUCH, WAS A PROPER CHARGE AGAINST THE UNITED STATES. COMP. GEN. 41; 19 ID. 778. THE PRINCIPLE OF THOSE DECISIONS APPEARS APPLICABLE IN THE INSTANT MATTER, WHETHER IT INVOLVES NEW CONSTRUCTION OR REMODELING OR IMPROVEMENT OF BUILDINGS OR OTHER STRUCTURES, SINCE IT INVOLVES A CONNECTION OR CONNECTIONS WITH A MUNICIPALLY OWNED SEWER. THE FACT THAT THE AMOUNT OF THE CHARGES IS REQUIRED BY THE ORDINANCE TO BE DEPOSITED IN A SEWER CONSTRUCTION ACCOUNT DOES NOT REQUIRE ANY DIFFERENT CONCLUSION. IN MOST INSTANCES, CHARGES FOR SEWER CONNECTIONS PRESUMABLY ARE USED FOR COST OF CONSTRUCTION.

THE ABOVE-QUOTED PROVISION OF THE CONTRACT REQUIRING THE CONTRACTOR TO PAY "ALL FEES AND CHARGES FOR CONNECTIONS TO OUTSIDE SERVICES AND FOR USE OF PROPERTY OUTSIDE THE SITE" APPEARS CLEARLY TO BLIND THE CONTRACTOR TO PAY ALL OF THE FEES AND CHARGES IN QUESTION, NO OTHER INTERPRETATION OF THE LANGUAGE APPEARING REASONABLE OR PERMISSIBLE.

A WRITTEN AGREEMENT NOT CONFORMING TO THE ACTUAL INTENTION OF THE PARTIES MAY BE REFORMED TO ACCORD WITH SUCH INTENTION. WHERE, BY REASON OF MUTUAL MISTAKE, A CONTRACT AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, THE WRITTEN INSTRUMENT MAY BE REFORMED IF IT CAN ESTABLISHED WHAT THE AGREEMENT ACTUALLY WAS. SEE 36 COMP. GEN. 507, 509; 20 ID. 533 AND CASES THERE CITED.

ON THE RECORD NOW BEFORE US, THERE IS NOT PERCEIVED ANY SUFFICIENT BASIS FOR REFORMATION OF THE CONTRACT INVOLVED IN THIS MATTER. HOWEVER, IF YOU BELIEVE THAT SUCH A BASIS MAY EXIST, THE MATTER WILL BE GIVEN FURTHER CONSIDERATION UPON SUBMISSION BY YOU OF SUCH FURTHER INFORMATION AS DEEMED PERTINENT.

AS REQUESTED, THE ENCLOSURES SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.