CONSTRUCTION EXCISE TAX INTERGOVERNMENTAL AGREEMENT

Transcription

1 CONSTRUCTION EXCISE TAX INTERGOVERNMENTAL AGREEMENT This Agreement is made and entered into this day of, 2010 by and between ASHLAND SCHOOL DISTRICT No. 5, hereinafter referred to as School District, and THE CITY OF ASHLAND, an Oregon municipal corporation, hereinafter referred to as City. RECITALS A. ORS Chapter 190 authorizes City and School District to enter into written agreements for the performance of any or all functions and activities that either entity has the authority to perform on its own. B. School District is authorized by ORS to ORS , hereinafter referred to in this IGA as the CET law, to impose a Construction Excise Tax ( CET ) to fund capital improvements to school facilities. C. Pursuant to the CET law, School District has adopted a resolution establishing a CET throughout its jurisdiction. The resolution provides that the CET be collected by the City and remitted to School District pursuant to an Intergovernmental Agreement. D. City and School District desire to enter into an IGA meeting the minimum requirements of ORS , and to establish certain procedures needed to effectively collect the CET and remit the tax to School District. NOW, THEREFORE, in consideration for the mutual covenants contained herein the receipt and sufficiency of which are hereby acknowledged, the City and School District agree as follows: 1. RECITALS. The recitals set forth above are true and correct and are incorporated herein by this reference. 2. DURATION. [ORS (1)(e)]. The term of this Agreement shall commence and the agreement shall be effective after execution by both parties and shall not expire until the CET expires, the statutory authority is repealed, or the IGA is terminated by the City or the District. The parties agree to review the Agreement on or before January 2, 2018 to determine if any changes will be necessary City of Ashland - Ashland School District Excise Tax IGA Page 1

2 3. FUNCTIONS OR ACTIVITIES. [ORS (1)]. a. The School District agrees to the following: i.information and Forms. School District will provide all of the forms and information necessary to collect the CET Including a general description of the CET, School District contact information, an exemption request form, and a certified copy of the Resolution establishing the CET. ii.refunds. School District agrees to process and issue any required refunds of CET. iii.exemptions/enforcement. If the building permit applicant asserts that the applicant is exempt from the CET and shows proof of filing a School District CET Exemption Form at the time the CET would otherwise be due, City will recognize the exemption. School District is responsible to determine the validity of the exemption and to institute collection procedures to obtain payment of the CET, as well as any other remedy School District may have under law, if the applicant was not entitled to the exemption. iv.payment. School District will promptly pay all invoices as required by Section 4. b. The City of Ashland agrees to the following: i. Staffing. City shall provide sufficient staff to calculate and collect the CET in accordance with the terms of this IGA. School District shall provide sufficient staff to implement all other aspects of the CET program established by the School District. ii. Collection; City will collect the CET on behalf of School District for those properties that are within the School District boundaries and within the city limits of City when such CET is triggered by a non-exempt application for a permit for structural improvements regulated by the state building code City of Ashland - Ashland School District Excise Tax IGA Page 2

3 1. Applicability. The CET will apply to all non-exempt taxable building permits as determined by the CET law, deemed complete for processing after the collection start date noted in subparagraph 3 below. 2. Collection shall be in conjunction with the collection of the other building permit fees by the City. Payment shall be in one check payable to the City of Ashland. When the applicant pays fees with one check payable to the City, City will direct the portion representing the CET payment to a dedicated account line item and process a payment to School District for all CET payments received, at least quarterly. iii. 1. The collection start date will be July 1, 2010 following the receipt by the City of a certified copy of School District s approved resolution establishing the CET which is in compliance with the CET law together with a fully executed original copy of this Intergovernmental Agreement. In no instance will the start date be earlier than the effective date of the resolution adopting the CET. 2. City will continue collection until the CET expires, the underlying statutory authority is repealed, the program is terminated by School District, or this IGA is terminated by either the School District or the City as provided herein. City and School District will monitor the CET statute and make amendments to this Agreement as necessary. iv. Remittance. City will remit the collected CET to School District by processing a City check, less the 4% administrative fee, along with copies of completed CET collection forms or proof of filing of a School District s CET Exemption Form at least quarterly. No other CET reports are required. v. Failure to Pay CET. The City shall collect the CET from the building permit applicant at the time that the permit authorizing construction subject to CET is issued. Upon refusal or failure to pay the CET when due, or failure to provide proof of filing the School District CET Exemption Form, the City will 2010 City of Ashland - Ashland School District Excise Tax IGA Page 3

4 vi. vii. not issue the building permit. In no event is the City liable for failure to collect CET when due. Records. City shall make all records relating to the building permit authorizing construction subject to the CET and CET collections available to School District, or its designated auditors, as necessary for School District to audit CET collections. Noticing. School District shall publicize all CET tax rate or policy changes and be responsible for any required public noticing. School District shall provide the City with a minimum 20 days advance notice of any changes 4. PAYMENT/ REVENUE. [ORS (1)(a)(b)]. As consideration for the above described services, City shall retain a 4% administrative fee as authorized by ORS No other revenues expected to be derived pursuant to this Agreement need to be apportioned between the parties. 5. PERSONNEL. [ORS (1)(c)]. No employees will be formally transferred pursuant to this Agreement. School District and City are subject employers under ORS Chapter 656, and shall procure and maintain current valid workers compensation insurance coverage for all subject workers throughout the period of this Agreement. This Agreement does not change the status of any employee, contractor or officer of the respective entities. 6. REAL OR PERSONAL PROPERTY. [ORS (1)(d)]. There shall be no transfer of title or possession to any real or personal property pursuant to this Agreement. 7. TERMINATION. [ (1)(f)]. a. This CET Collection IGA will be terminated if the City of Ashland ceases to be the issuer of permits for structural improvements regulated by the state building code. b. This CET Collection IGA may also be terminated by either the City or School District for any reason upon 90 days written notice to the other party. In addition, this Agreement may be terminated by mutual consent of both parties; or by either party upon a default upon notice in writing. In the event of termination of the Agreement, School District shall pay any fee due and owing to the City and City shall remit any tax collected on behalf of the School District to the date of 2010 City of Ashland - Ashland School District Excise Tax IGA Page 4

5 termination. Such termination shall be without prejudice to any obligations or liabilities of either party accrued prior to such termination. c. There shall be a default under this Agreement if either party fails to perform any act or obligation required of that party by this Agreement. Before declaring a default, the party claiming a failure has occurred shall give written notice to the other party specifying the nature of the breach with reasonable particularity. No default shall occur if the breach is remedied with thirty (30) days after the notice is given. d. If the breach specified in the notice is of such a nature that a remedy cannot be completely performed within the thirty-day period, no default shall occur if the party receiving the notice begins performance of the act or obligation within the period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. e. In addition to the remedies specified elsewhere in this Agreement, if a default occurs, the party damaged by the default may elect to terminate this Agreement and pursue any equitable or legal rights and remedies available under Oregon law. 8. HOLD HARMLESS./ DISCLAIMER To the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, School District shall hold harmless, defend and indemnify the City of Ashland its officers, agents and employees, from any and all claims, demands, damages, expenses, or injuries, liability of damage that anyone may have or assert by reason of the any error, act or omission of City of Ashland, its officers, agents and employees in the performance of their duties under the terms of this Agreement, except for those caused by the sole negligence of the City or its officers and employees.. It is further agrees and understood that neither party is, by virtue of this Agreement, a partner or joint venturing with the other party and neither party shall have any obligation with respect to the other party s debts or liabilities of whatever kind or nature. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification City of Ashland - Ashland School District Excise Tax IGA Page 5

6 9. METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS, AND MAKING PAYMENTS. All notices, bills, and payments shall be made in writing and may be given by personal delivery or by mail. Notices, bills, and payments sent by mail should be addressed as follows: City of Ashland Attn: Martha Bennett, City Administrator 20 East Main Street Ashland, Oregon Phone: Fax: Ashland Public School Attn: Juli Di Chiro Superintendent 885 Siskiyou Blvd. Ashland, OR Phone Fax: and when so addressed, shall be deemed given upon deposit in the United States Mail, postage prepaid. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made to the names and addresses of the person to whom notices, bills, and payments are to be given by providing notice pursuant to this paragraph. 10. ATTORNEY FEES. In the event an action, lawsuit or proceeding, including appeal there from, is brought for failure to fulfill or comply with any of the terms of this agreement, each party shall be responsible for their own attorney fees, expenses, costs and disbursements for said action, lawsuit, proceeding or appeal. 11. NO WAIVER. The failure by any party to enforce any provision of this Agreement shall not constitute a waiver by that party of that provision or of any other provision of this Agreement. 12. SEVERABILITY. Should any provision or provisions of this Agreement be construed by a court of competent jurisdiction to be void, invalid or unenforceable, such construction shall affect only the provision or provisions so construed, and shall 2010 City of Ashland - Ashland School District Excise Tax IGA Page 6

7 not affect, impair or invalidate any of the other provisions of this Agreement which shall remain in full force and effect. 13. HEADINGS.. The headings of this Agreement are for convenience only and shall not be used to construe or interpret any provisions of this Agreement. 14. APPLICABLE LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oregon. 15. ASSIGNMENT/DELEGATION.. Ashland shall not delegate the responsibility for providing services hereunder to any other individual or agency. Neither this Agreement nor any of the rights granted by this Agreement may be assigned or transferred by either party. 16. AMENDMENT. This IGA may be amended only by mutual written agreement of the City and School District. City and School District further agree to negotiate in good faith to amend this IGA should the CET law be amended by subsequent legislation or judicial proceedings so that this IGA is consistent with the most current legislation 17. MERGER. This writing is intended both as the final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. 18. OTHER AGREEMENTS. This CET Collection IGA does not affect or alter any other agreements between School District and City. 19. BINDING EFFECT. The terms of this Agreement shall be binding upon and inure to the benefit of each of the parties and each of their respective administrators, agents, representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in two (2) duplicate originals, either as individuals, or by their officers, thereunto duly authorized City of Ashland - Ashland School District Excise Tax IGA Page 7

8 School District No. 5, Ashland, Oregon Dated this day of, JULI DI CHIRO, SUPERINTENDENT City of Ashland, Oregon Dated this day of, By: JOHN STROMBERG, MAYOR Approved as to Form: City Attorney 2010 City of Ashland - Ashland School District Excise Tax IGA Page 8

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19 75th OREGON LEGISLATIVE ASSEMBLY Regular Session HOUSE AMENDMENTS TO HOUSE BILL 2014 By COMMITTEE ON REVENUE April On page 1 of the printed bill, line 2, delete and and insert a comma. In line 3, after insert and Delete lines 5 through 30 and delete page 2 and insert: SECTION 1. ORS is amended to read: (1) Construction taxes may be imposed by a school district, as defined in ORS , in accordance with ORS to (2) [Notwithstanding subsection (1) of this section,] Construction taxes imposed by a school district [may] must be collected, subject to ORS , by [another] a local government, local service district, [or] special government body, state agency or state official that issues a permit for structural improvements regulated by the state building code [pursuant to a written agreement with a school district]. SECTION 2. ORS is amended to read: Construction taxes may not be imposed on the following: (1) Private school improvements. (2) Public improvements as defined in ORS 279A.010. (3) Residential housing that is guaranteed to be affordable, under guidelines established by the United States Department of Housing and Urban Development, to households that earn no more than 80 percent of the median household income for the area in which the construction tax is imposed, for a period of at least 60 years following the date of construction of the residential housing. (4) Public or private hospital improvements. (5) Improvements to religious facilities primarily used for worship or education associated with worship. (6) Agricultural buildings, as defined in ORS (2)(a). (7) Facilities that are operated by a not-for-profit corporation and that are: (a) Long term care facilities, as defined in ORS ; (b) Residential care facilities, as defined in ORS ; or (c) Continuing care retirement communities, as defined in ORS SECTION 3. ORS is amended to read: (1) A school district imposing a construction tax shall impose the tax by a resolution adopted by the district board of the school district. The resolution shall state the rates of tax, subject to ORS (2) Prior to [adopting a resolution under subsection (1) of this section] collecting a construction tax, a school district shall enter into an intergovernmental agreement with each local government, local service district, [or] special government body, state agency or state official collecting the tax that [establishes] includes: LC 3297/HB

20 (a) Collection duties and responsibilities; (b) The specific school district accounts into which construction tax revenues are to be deposited and the frequency of such deposits; and (c) The amount of the administrative fee that the entity or official collecting the tax may [retain to recoup its expenses in collecting the tax, not to exceed one percent of tax revenues.] use to recoup expenses incurred in collecting the construction tax, either through retention or reimbursement. An administrative fee under this paragraph may not exceed four percent of tax revenues and shall be reduced by the amount of the administrative fee, if any, established under subsection (3) of this section. (3) The Department of Consumer and Business Services may establish by rule an administrative fee of 0.25 percent of tax revenues. The administrative fee shall be collected and remitted to the department by the entity or official collecting the construction tax. SECTION 4. ORS , as amended by section 3 of this 2009 Act, is amended to read: (1) A school district imposing a construction tax shall impose the tax by a resolution adopted by the district board of the school district. The resolution shall state the rates of tax, subject to ORS (2) Prior to collecting a construction tax, a school district shall enter into an intergovernmental agreement with each local government, local service district, special government body, state agency or state official collecting the tax that includes: (a) Collection duties and responsibilities; (b) The specific school district accounts into which construction tax revenues are to be deposited and the frequency of such deposits; and (c) The amount of the administrative fee that the entity or official collecting the tax may use to recoup expenses incurred in collecting the construction tax, either through retention or reimbursement. An administrative fee under this paragraph may not exceed four percent of tax revenues [and shall be reduced by the amount of the administrative fee, if any, established under subsection (3) of this section]. [(3) The Department of Consumer and Business Services may establish by rule an administrative fee of 0.25 percent of tax revenues. The administrative fee shall be collected and remitted to the department by the entity or official collecting the construction tax.] SECTION 5. ORS is amended to read: Construction taxes [shall] must be paid by the person undertaking the construction at the time that a permit authorizing the construction or the expansion of square footage of a facility or building is issued. SECTION 6. The amendments to ORS , , and by sections 1, 2, 3 and 5 of this 2009 Act apply to the collection of construction taxes on or after the effective date of this 2009 Act. SECTION 7. The amendments to ORS by section 4 of this 2009 Act apply to the collection of construction taxes on or after June 30, SECTION 8. This 2009 Act takes effect on the 91st day after the date on which the regular session of the Seventy-fifth Legislative Assembly adjourns sine die.. HA to HB 2014 Page 2