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HomeMy WebLinkAboutPetaluma Ecumenical Properties 2015-07-01AGREEMENT FOR PAYMENT OF FEES AND CHARGES This Agreement for Payment of Fees ( "Agreement ") is entered into by (and Between Petaluma Ecumenical Properties ( "PEP ") and the City of Ukiah ( "City ") for the purpose of securing the payment of certain enumerated development related fees and charges. To the extent any fees and charges related to the development are not outlined in this Agreement, those fees and charges are, not affected by this Agreement. PEP and the City may be referred to in the singular as "Party" or collectively as "Parties" in this Agreement. RECITALS: A. Connection fees are due and payable when new development imposes increased demand on the City's fire department, parks, public schools, and other public amenities, and are usually collected at the time building permits are issued for new development . B. PEP is the non - profit developer of a certain project located at 517 Main Street in Ukiah, Assessor's Parcel No. 002 - 281 -015, 002 - 281 -018, 002 - 281 -024, 002 - 281 -028 and 002- 281 -030 ( "Project "). The proposed project is a low income, senior housing project. C. Government Code section 66007 provides, in pertinent part, "[A]ny local agency that imposes any fees or charges on a residential development for the construction of public improvements or facilities shall not require the payment of those fees or charges, notwithstanding any other provision of law, until the date of the final inspection, or the date the certificate of occupancy is issued, whichever occurs first. However, utility service fees may be collected at the time an application for utility service is received." D. PEP has requested a delay in the collection of certain fees and charges. Specifically, PEP has requested the delayed collection of sewer connection fees ($424,022), and water connection fees ($22,360). The fees listed in this paragraph are collectively referred to as "Deferred Fees ". The amounts of the Deferred Fees listed in this Agreement are estimates only. The amounts to be collected are the actual amounts imposed for each fee or charge as of July 2015. Further, it is the understanding of the City that PEP desires to exercise its rights with respect to other deferred fees and charges to be paid to other public agencies. E. Water and Sewer connection fees are due under Ukiah City Code §§ 3861 and 3732 prior to use and occupancy of the new facility requiring the service, but in no event later than sixty (60) days after building permit issuance for the project. However, application for water and sewer service can be made on or after the issuance of a certificate of occupancy or the date of a final inspection. Accordingly, the payment of those fees must be deferred on the same terms as other fees subject to Government Code Section 66007. F. Government Code section 66007 allows a public agency to enter into an agreement to secure the payment of any Deferred Fees and Charges. AGREEMENT In consideration of full and timely performance of the following terms, covenants, and conditions, PEP and the City agree as follows: 1. The parties acknowledge that the above Recitals are true and correct and incorporate those Recitals as material terms into the Agreement. 2. PEP desires to exercise its rights pursuant to Government Code 66007. PEP has agreed to pay those standard and customary building fees prior to the issuance of a building permit, except the Deferred Fees listed in Recital Paragraph D, which are incorporated by reference. 3. The City agrees to issue a building permit for the Project provided PEP, or its authorized representative, pays such other development related fees prior to the issuance of the building permit. 4. As to all Deferred Fees listed in Recital Paragraph D, including any other deferred fees to be paid to other public agencies or public service providers, PEP agrees to pay those fees prior to a final inspection or issuance of an occupancy permit, whichever comes first, as outlined in Government Code 66007(c). 5. PEP agrees to not request and waives any claim to receive a Certificate of Occupancy for any portion of the property until the Deferred Fees listed in Recital Paragraph D have been paid in full. No building or structure on the Property shall be used or occupied until the building official has issued a Certificate of Occupancy. The City may withhold issuance of a Certificate of Occupancy and /or final inspection approval until the Property owner pays in full all Connection Fees and any other fees owed in connection with development of the Property. 6. This Agreement shall run with the land, bind and benefit the parties and their respective successors, heirs, agents and assigns. No party may assign any obligation or right accorded under this Agreement without the prior written consent of the other party. 7. In the event another public agency or entity demands payment in contravention to the terms outlined in this Agreement for one or more of the Deferred Fees listed in Recital Paragraph D, PEP agrees to defend and indemnify the City for all costs resulting from such a demand, including any damages, fees, charges, attorneys' fees and costs, in defending against such a claim or demand. 8. To the extent any fees related to the Project are not specifically outlined in this Agreement, those fees are not affected by this Agreement. 9. This Agreement shall be effective immediately upon its execution by PEP and the City. This Agreement may be executed in counterparts, in duplicate originals, and /or facsimile or electronically transmitted signatures. If executed in counterparts, then upon proof of execution of at least one copy, the Agreement shall be effective from the date of the last signature. If executed in duplicate, each duplicate copy shall be valid as an original copy. If signatures are transmitted by facsimile or electronically, each facsimile or electronically transmitted signature shall be valid as an original signature. 10. PEP and the City agree to execute and deliver any other instrument or document convenient or necessary to carry out the terms of this Agreement. 11. This Agreement constitutes the entire agreement between PEP and the City related to the Deferred Fees listed in Recital Paragraph D. No modification of this Agreement shall be valid unless in writing signed by the parties. 12. Should any term of this Agreement be deemed unlawful, that provision or part thereof shall be stricken and such provision shall not affect the legality, enforceability or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this paragraph, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in meaning to the stricken provision as is legally possible; provided, however, the deferral of fees by other agencies than the City is subject to the validity and enforceability of paragraph 7 of this agreement. 13. Each person executing this Agreement represents and warrants to the other signatories that they have the authority to execute this Agreement on behalf of the entity for whom they are signing this Agreement. 14. The parties agree that this Agreement has been jointly drafted and shall not be construed in favor of, or against, any party by reason of the extent to which any party or its counsel participated in the drafting of this Agreement. 15. This Agreement shall in all respects be interpreted, enforced, and governed by and under the laws of the State of California. 16. Should any action, motion, or other legal proceeding be brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in prosecuting such efforts. IT IS SO AGREED: S, ge San iacomo City Manager Mary Stompe Petaluma Ecumenical Properties Approved as to Form: