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HomeMy WebLinkAboutAgr 2013-07-01 (Stuart and Gina Peterson)AGREEMENT TO REVISE REACTIVATION CHARGES This Agreement ("Agreement") is effective as of July 1, 2013 (the "Effective Date'l and is entered into by and between the Town of Tiburon ("Town"), and Stuart and Gina Peterson (collectively "Peterson"). The Town and Peterson maybe referred to herein as the "Parties." RECITALS A. On June 23, 2010, the Town issued a building permit to the owners of 110 Gilmartin Drive ("Building Permit"). The Building Permit authorized the construction of a new single family dwelling and other improvements ("Project"). The Building Permit required all construction to be complete by December 23, 2011. B. Chapter 13 of the Town's Municipal Code (`Building Code") authorizes only six-month administrative extensions after the expiration of a building permit. The Town has granted three extensions of the Building Permit, all as provided by the Building Code. The third extension will expire on June 23, 2013. The Parties do not expect the Project to be completed by that date. Peterson estimates that the Project will be completed on or before December 23, 2014. C. Pursuant to the Building Code, any further extensions must be approved by the Town Council, subject to reactivation charges of five times the original building permit fee. The Town Council has discretion to reduce that fee for such reasons as the closeness of the Project to completion or the reasons for the delay. D. On May 1, 2013, the Town Council heard the Peterson's application for further extension of the Building Permit. After hearing public testimony, including a presentation from Peterson and his representatives, the Council adopted Resolution No. 14-2013 ("Resolution"), which granted several extensions of the Building Permit for up to December 23, 2014, and imposed reactivation charges for those extensions. E. A dispute ("Dispute") has arisen between Peterson and the Town in that Peterson asserts that the Resolution's reactivation charges constitute excessive fines and fees and the Town asserts that said charges are appropriate, consistent with applicable law and lie fully within the Town's police power. F. To allow time to negotiate a resolution of the Dispute without litigation, the Parties entered into a tolling agreement on May 31, 2013, extending any unexpired statutes of limitations to challenge the Resolution until June 13, 2013. The Parties subsequently agreed to extend said deadline until June 27, 2013. G. On June 17, 2013, Peterson paid the first reactivation charge required by the Resolution, in the amount of one hundred fifty-five dollars ($155,292). Peterson made said payment under protest, reserving the right to challenge the legality of the Resolution ("Payment Under Protest"). H. The Parties now desire to enter into this Agreement to set forth their mutual understandings and commitments with respect to the Dispute and the Project. Without admitting any issue of fact or law, the Parties agree that entry into this Agreement is in good faith and in the public interest, and is designed to avoid litigation between the Town and Peterson with respect to the Dispute. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby covenant and agree as follows: 1. Town will hold a public hearing on July 17, 2013, or such other hearing date as is mutually agreed upon by the Parties ("Hearing Date') to consider the following revisions to the terms of the Resolution (collectively, the "Revised Reactivation Charges': a. Peterson will pay five hundred eighty-two thousand, three hundred and forty-five dollars ($582,345) to reactivate their Building Permit until December 23, 2014. b. Peterson will place five hundred eighty-two thousand, three hundred and forty-five dollars ($582,345) in escrow as a penalty if they do not complete the Project on or before December 23, 2014. The escrow holder and escrow instructions shall be subject to the reasonable approval of the Town Attorney. The escrow instructions shall require the Town Attorney's signature and Peterson's signature for release of the escrowed funds and will incorporate the terms of this Agreement. c. If Peterson does not complete the Project on or before December 23, 2014, the funds escrowed under Section 1(b) will be released to the Town and Peterson will pay an additional charge of three hundred eighty-eight, two hundred and thirty dollars ($388,230), without objection, if they wish to further extend the Building Permit until June 2013, 2015, and comply with such conditions as the Council may determine in a public meeting are necessary and appropriate to ensure Project completion within that time. d. For purposes of calculating the Revised Reactivation Charges, Project completion shall mean that all permitted work is complete and finaled; no work shall continue on the Project that would, if performed in isolation, require a permit. 2. If the Town Council approves the Revised Reactivation Charges on the Hearing Date, Peterson will comply with Sections 1(a) and (b) of this Agreement within ten (10) days thereof. The Town acknowledges that because of the Payment Under Protest, the outstanding amount due under Section 1(a) is four hundred twenty-seven thousand, fifty- three dollars ($427,053). 3. If the Town Council does not approve the Revised Reactivation Charges on the Hearing Date, this Agreement shall terminate and be of no further force and effect, including, without limitation, the waivers and releases set forth in Sections 4,5 and 6 hereof. Notwithstanding the foregoing, in the event that the Town Council does not approve the Revised Reactivation Charges, the Parties agree that if the Town Council does not approve the Revised Reactivation Charges on the Hearing Date: Page 2 of 5 a. The running of any and all statute of limitations that had not previously expired prior to the Effective Date and that are or would be applicable to any claim, demand, debt, liability, obligation, cause of action, proceeding or suit arising out of the Town's adoption of Resolution No. 04-2013 will be deemed tolled until ten days after the Heating Date ("Expiration Date"). b. The time between the Effective Date through and including the Expiration Date shall not be computed or included in calculating any statute of limitations for any claim relating to the Dispute. The phrase "statute of limitations" as used herein includes all statutes of limitation or repose, equitable defenses of waiver, estoppel or laches, and any other claims, defenses or theories based upon the lapse of time and time related bars. 4. Releases by Peterson. Peterson, on behalf of themselves, their heirs, executors, administrators, trustors, trustees, successors, affiliates, engineers, contractors, subrogors, subrogees, insurers, lessees, grantees, assignors, assignees, agents, employees, attomeys, consultants, experts, general partners, limited partners, and representatives, and all others, hereby forever release and discharge the Town and any of its subsidiaries, its Town Council, employees, agents, insurers, attorneys and all others from any and all known and/or existing actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands (including claims arising out of contract) arising out of or in any way connected with the Dispute in general or the Resolution in particular as a result of which personal injury, property damage and other loss and damage were alleged to have been sustained by Peterson. This release includes, but is not limited to, the protests, claims and reservation of rights asserted in the Payment Under Protest. 5. Waiver of Section 1542. The Parties acknowledge and understand that this is a full and final Release of any and all claims arising out of the matters set forth above and agree as a further consideration and inducement for this compromise that this Release extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, regarding the matters set forth above, and all rights under Section 1542 of the Civil Code of the State of California are hereby expressly relinquished and waived by the undersigned. Said section reads as follows: SECTION 1542, GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 6. Unknown Facts. The Parties acknowledge and agree that they may hereafter discover facts different from or in addition to those they now know or believe to be true in respect to the claims, losses, liabilities, obligations, suits, debts, liens, contracts, agreements, promises, demands and damages released by this Agreement, and hereby agree that the releases contained herein shall be and remain in effect in all respects as a complete, Page 3 of 5 general release as to the matters released, notwithstanding any such different or additional facts. 7. No Admission. It is understood and agreed by the Parties that this settlement is the compromise of a disputed claim and that the payment of monies by the Parties is not to be construed as an admission of liability and that any liability is expressly denied. 8. Int=retation of Agreement. This Agreement, and each of its provisions, has been reached as the result of negotiations between the Parties and their respective attorneys. Each of the Parties expressly acknowledges and agrees that this Agreement shall not be deemed to have been prepared by, or drafted by, any particular Party or Parties hereto, and that the normal rule of construction, to the effect that any ambiguities are to be resolved against the drafting party or parties, shall not be employed in the interpretation of this Agreement. 9. Governing Law, Venue. The laws of the State of California shall govern this Agreement. In the event that a dispute arises between the Parties regarding this Agreement, the venue for resolving said dispute shall be the County of Marin. 10. Binding Agreement. This Agreement shall be binding on, and shall inure to the benefit of, each of the Parties and their respective past, present and future predecessors, successors, subsidiaries, affiliates, officers, directors, employees, attorneys, insurers, agents, representatives and assigns. 11. Counterparts. This Agreement may be executed simultaneously or in any number of counterparts, each of which shall be deemed an original, equally admissible in evidence against any Party who has signed it, all of which together shall constitute one and the same agreement. Signatures delivered by facsimile shall be deemed original signatures. 12. Integrated Agreement. This writing is an integrated agreement and represents the entire understanding of the Parties relative to the subject matter described herein. No prior or contemporaneous agreements shall be enforceable if they materially alter, vary, or add to the terms of this Agreement. This Agreement may not be modified except by a writing executed by all Parties or their counsel. Each of the Parties agrees that no representation or promise not expressly contained in this Agreement has been made and further promises that they are not entering into this Agreement on the basis of any promise, representation, express or implied, not otherwise contained herein. 13. Voluntary Consent. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf of the Parties hereto. The Parties acknowledge that: a. They have read this Agreement; b. They have been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of their own choice; c. They understand the terms and consequences of this Agreement and of the Agreements it contains; and Page 4 of 5 I They are fully aware ofthe legal and binding effect of this Agreement. 14. Warranty of Authority. The persons executing this Agreement represent and warrant that they have full authority to sign this Agreement on behalf of'the Parties for which are acting and that said Parties will thereby be fully bound by the tears of this Agreement. is. Severability. Each provision of this Agreement shall be interpreted in such a manner as to be valid, legal and enforceable. A determination that any provision of this Agreement is for any reason invalid, illegal, or unenforceable shall not affect the validity of this Agreement and any other provisions herein, and this Agreement shall be interpreted and construed as if such invalid, illegal, or unenforceable provisions were not contained herein. Dated: July% 2013 Dated: July I D , 2013 Town of Tiburon 00, By: Ann R, Danforth Town Attorney Stuart and Gina Peterson Riley F. Hurd III Attorney for the Peterson Page 5 of 5