Loading...
HomeMy WebLinkAbout2007-11-7360437 95956 ORDINANCE NO. 2007-11-7360 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING A MEMORANDUM OF UNDERSTANDING BY AND AMONG THE CITY OF PADUCAH, KENTUCKY, AND FALCONITE DEVELOPMENT, INC., WITH RESPECT TO THE RESIDENTIAL DEVELOPMENT OF VACANT PROPERTY WITHIN THE CORPORATE BOUNDARIES OF THE CITY OF \, PADUCAH; AND AUTHORIZING THE EXECUTION OF VARIOUS DOCUMENTS RELATED TO SUCH MEMORANDUM OF UNDERSTANDING. WHEREAS, the City of Paducah is charged with the responsibility of overseeing the proper and orderly development of vacant properties located within its corporate boundaries and of insuring the integrity and quality of its existing residential neighborhoods; and WHEREAS, the City of Paducah's economic well-being is related to and in many respects is dependent upon, sustained growth of its population and tax revenue base through development of vacant properties; and WHEREAS, Falconite Development, Inc., a Kentucky corporation, (the "Developer") is the present owner of a certain tract of vacant real estate located within the corporate boundaries of the City of Paducah upon which Developer proposes to construct a residential development, commonly referred to as `Barkley Woods" (the "Residential Development"), which real estate is generally bounded by US Highway 62, Audobon Drive, Interstate -24, and Buckner Lane, in the city of Paducah, McCracken, Kentucky (the "Property"); and WHEREAS, the Residential Development will encourage development of single-family owner -occupied housing on vacant, orphaned, or underutilized land located in the mature portions of Paducah where infrastructure and services are in place; and WHEREAS, the Residential Development will encourage infill development that may have been underutilized or blighted, helping to catalyze revitalization; and WHEREAS, the Residential Development will promote the health of the existing public school system by increased residential development within the existing City of Paducah School System; and WHEREAS, the Residential Development will promote quality housing consistent with the character of the adjacent residential neighborhood; and WHEREAS, the Residential Development will help maintain growth through infill development, which encourages a healthy economy; and WHEREAS, the Residential Development Agreement will encourage infill residential development, which will increase the population base of the City of Paducah, therefore increasing the possibilities of becoming a designated urbanized area; and WHEREAS, in order to insure that the Residential Development will have a positive impact on the entire community and to encourage the public purpose of infill residential development it is necessary and desirable that the City now authorize the Memorandum of Understanding by and among the City and the Developer. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS: Section 1. Recitals and Authorization. The City hereby approves the Memorandum of Understanding among the City and the Developer (the "MOU") in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it is necessary 438 and desirable and in the best interests of the City to enter into the MOU for the purposes therein specified, and the execution and delivery of the MOU is hereby authorized and approved. The Mayor of the City is hereby authorized to execute the MOU, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the MOU with such changes in the MOU not inconsistent with this Ordinance and not substantially adverse to the City as may be approved by the official executing the same on behalf of the City. The approval of such changes by said official, and that such are not substantially adverse to the City, shall be conclusively evidenced by the execution of such MOU by such official. Section 2. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. Section 3. Compliance With Open Meetings Laws. The City Commission hereby finds and determines that all formal actions relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. Section 4. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. Section 5. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. MAY R ATTEST: 4— City Clerk Introduced by the Board of Commissioners, November 13, 2007 Adopted by the Board of Commissioners, November 27, 2007 Recorded by City Clerk, November 27, 2007 Published by The Paducah Sun, December 1, 2007 \ord\plan\agree\barkley woods 2 439 EXHIBIT A TO ORDINANCE 95939 MEMORANDUM OF UNDERSTANDING This is a Memorandum of Understanding (Agreement) made and entered into on the day of December, 2007, by and between the CITY OF PADUCAH, KENTUCKY (the "City" or "City of Paducah"), a municipality of the second class, and FALCONITE DEVELOPMENT, INC., a Kentucky corporation (the "Developer"). C' WHEREAS, Developer is the present owner of a certain tract of vacant real estate located within the corporate boundaries of the City of Paducah upon which Developer proposes to construct a residential development, commonly referred to as "Barkley Woods" (the "Residential Development"), which real estate is generally bounded by US Highway 62, Audobon Drive, Interstate -24, and Buckner Lane, in the city of Paducah, McCracken, Kentucky (the "Property"); and WHEREAS, the City of Paducah is charged with the responsibility of overseeing the proper and orderly development of vacant properties located within its corporate boundaries and of insuring the integrity and quality of its existing residential neighborhoods; and WHEREAS, the City of Paducah's economic well-being is related to and in many respects is dependent upon, sustained growth of its population and tax revenue base through development of vacant properties; and WHEREAS, the Residential Development will encourage development of single-family owner -occupied housing on vacant, orphaned, or underutilized land located in the mature portions of Paducah where infrastructure and services are in place; and WHEREAS, the Residential Development will encourage infill development that may have been underutilized or blighted, helping to catalyze revitalization; and WHEREAS, the Residential Development will promote the health of the existing public school system by increased residential development within the existing City of Paducah School System; and WHEREAS, the Residential Development will promote quality housing consistent with the character of the adjacent residential neighborhood; and WHEREAS, the Residential Development will help maintain growth through infill development, which encourages a healthy economy; and WHEREAS, the Residential Development will encourage infill residential development, which will increase the population base of the City of Paducah, therefore increasing the possibilities of becoming a designated urbanized area; and WHEREAS, in order to insure that the Residential Development will have a positive impact on the entire community the City and the Developer have reached certain agreements respecting the construction and improvement of the Residential Development and wish to reduce the same to writing. NOW, THEREFORE, in consideration of the foregoing premises, and for other value consideration, the legal adequacy and sufficiency of which is hereby acknowledged by all parties hereto, the parties do covenant and agree as follows: A. Developer agrees to the following: 1. Submit for approval a preliminary and a final subdivision plat of the Residential Development to be constructed by Developer on the Property to the Paducah Planning Commission in compliance with Paducah Zoning & Subdivision regulations. 3 440 2. The use and development of the Property shall be restricted to only single-family residential homes and/or duplexes of similar character and size to residential homes and/or duplexes within'/4 mile of the Property, which covenant shall run with the land and shall be binding on all parties claiming under and through the Developer, unless cancelled, altered, or amended by a writing entered into by the Developer, or its successors, and the City of Paducah. This covenant on the use and development of the Property shall be incorporated in the covenants and restrictions of the Property which will be filed with the application for a preliminary and final subdivision plat of the Residential Development and ultimately place of record in the McCracken County Court Clerk's office. 3. Remove all trees and brush piles from the Property by any reasonable removal method, except burning. 4. To fully release and forever discharge the City of Paducah, and respectively, its insurers, mayor, commissioners, members, officers, employees, attorneys, agents, successors, assigns, and all other persons, associations and/or corporations, whether herein named or referred to or not, from any and all legal, equitable or other claim, counterclaim, demand, setoff, defense, accounts, suits, actions, causes of action, covenants, promises, damages, judgments, findings, controversies and disputes, and any past, present and future duties, responsibilities or obligations, whether they are known or unknown and which arise out of, or which may, can, or shall arise out of, or which could have arisen out of, the development of the Property, except to the extent of the obligations of the City specifically expressed herein. 5. Submit to the City an itemization of actual costs incurred by Developer in the reasonable removal of trees and brush from the Property. The itemization shall include supporting documentation that verifies the actual costs and expenses incurred by the Developer in the removal of the trees and brush from the Property. B. City agrees to the following: 1. In consideration of the commitments and agreement of the Developer set for above, the City agrees to that upon the approval of the final subdivision plat of the Residential Development and acceptance of all proposed right-of-ways within the Residential Development by the City Commission of the City of Paducah, and simultaneous thereto, the City of Paducah agrees to approve and enter into an infill development agreement (the "Infill Agreement") with Developer as to the Residential Development and the Property in substantially the same form as attached hereto, except as provided herein. 2. The Infill Agreement shall, without limitation, include the City's agreement to reimburse Developer, for the actual and reasonable initial costs and expenses incurred by Developer to construct the necessary infrastructure and improvements within the Residential Development up to an amount not to exceed the total amount of ad valorem real property taxes assessed and collected by the City over an eight (8) year period, commencing with the execution of the Infill Agreement, from the residential lots comprising the Residential Development constructed on the Property. For the purpose of this Agreement, infrastructure and improvements shall include: streets, sidewalks, gutters, storm sewers, storm water conveyance system and costs associated with the removal of trees and brush from the Property. The City shall have no obligation whatsoever to reimburse Developer in excess of the total amount of ad valorem real property taxes actually collected and received by the City during the eight (8) year period. Further, the City's obligation to reimburse Developer shall automatically terminate upon payment in full of all such eligible costs and expenses or at the end of the eight (8) year period, which ever occurs first. C. Miscellaneous Provisions. The following miscellaneous provisions shall apply: 1. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective legal representatives, heirs, successors and permitted assigns. The Developer shall not assign its rights and obligations hereunder, in whole or in part, without the prior consent of the City, but in no event, shall any assignment hereunder release or F1 relieve Developer from any obligations of this Agreement for which Developer shall remain fully bound to City. 2. Merger Clause. It is agreed and understood between the parties that this Agreement represents the entire and exclusive agreement between the parties, and that all prior representations, covenants, warranties, understandings and agreements are merged herein. This Agreement may only be modified in a writing executed by all parties hereto. 3. Construction. This Agreement shall be governed and construed under the laws of the Commonwealth of Kentucky. 4. Assurances. City and the Developer agree to execute such further documents and instruments as shall be necessary to fully carry out the terms of this Agreement. 5. Amendments. This Agreement may not be modified or amended unless by a writing signed by both parties hereto. 6. Execution and Delivery. This Agreement shall be of no force or effect unless and until it shall have been executed by both the City and the Developer and approved by the governing body of the City of Paducah.. WITNESS signatures of the parties as of the year and date first above written. DEVELOPER: FALCONITE DEVELOPMENT, INC. By Date: Michael A. Falconite, President CITY: CITY OF PADUCAH, KENTUCKY LM Date: William F. Paxton, Mayor 441 442 EXHIBIT "A" TO MEMORANDUM OF UNDERSTANDING The Infill Development Agreement Residential Infill Development Agreement THIS INFILL DEVELOPMENT AGREEMENT made and executed on this day of , 200by and between the City of Paducah, Kentucky, a city of the second class, 300 South Fifth Street, P. O. Box 2267, Paducah, Kentucky 42002-2267 (hereinafter referred to as "City"), and Falconite Development, Inc. (hereinafter referred to as "Developer"). WITNESSETH: WHEREAS, Developer is the owner of a tract of real property consisting of which is located in Paducah Kentucky, a document describing real property is set forth in Final Plat which is entitled "Final Plat of the ", survey dated by is attached hereto; and WHEREAS, Developer has obtained Final Subdivision approval for the Developer's Development of said tract of property as a subdivision for residential purposes from the Planning Commission on WHEREAS, The Board of Commissioners for the City of Paducah finds: That a Residential Development Agreement will increase residential development in the City of Paducah. That the City of Paducah's economic well-being is related to and in many respects dependent upon, sustained growth of its population and tax revenue base through development of vacant properties. That a Residential Development Agreement will encourage development of single-family owner -occupied housing on vacant, orphaned, or underutilized land located in the mature portions of Paducah where infrastructure and services are in place. That a Residential Development Agreement will encourage infill development that may have been underutilized or blighted, helping to catalyze revitalization. That a Residential Development Agreement will promote the health of the existing public school system by increased residential development within the existing City of Paducah School System. That infill residential development will increase the revenue tax base necessary to meet various capital needs, especially in the area of public safety, maintain infrastructure and facilities, promote economic development, and will aid in the maintenance of existing infrastructure and facilities. That a Residential Development Agreement will help maintain growth through infill development, which encourages a healthy economy. That a Residential Development Agreement will encourage infill residential development, which will increase the population base of the City of Paducah, therefore increasing the possibilities of becoming a designated urbanized area. WHEREAS, the City desires to provide municipal services to benefit Developer's Development, and the ultimate residents to be located therein, but requests Developer to construct, at Developer's cost, the public infrastructure and improvements which are necessary for the provision of such municipal services, including streets, gutters, and other public improvements depicted in Developer's Development, which upon completion and acceptance by the City will become the property of the City; and 0 WHEREAS, for reason that such public infrastructure and improvements will become the property of the City upon completion of construction and acceptance by the City, the City is agreeable to reimbursing Developer for the cost and expenses ($ per incurred by Developer to construct such infrastructure and improvements within Developer's Development to the extent of the total cost and expense of same, or the amount of ad valorem real property taxes realized by the City from property located within Developer's Development for a period of eight (8) years following , 200_, the lesser to apply. NOW, THEREFORE, in consideration of the foregoing provisions, and for other valuable consideration, the receipt of which is hereby acknowledged by all parties hereto, the parties do covenant and agree as follows: 1. Construction of Public Infrastructure and Improvements. Developer shall construct within Developer's Development the necessary public infrastructure and improvements which are necessary for the provision of municipal services by the City, which shall be streets, gutters, storm sewers, and a storm water conveyance system (hereinafter referred to as "Municipal Facilities"). The removal of trees and shrubs for the construction of municipal facilities shall be included within the definition of "Municipal Facilities". All such infrastructure and improvements shall be located in public right-of-ways dedicated by the plat of Developer's Development. The City Engineer shall have the right to inspect all construction of the Municipal Facilities during the construction process to ensure that construction of such facilities are in compliance with the Developer's Development. 2. Acceptance by the City. Upon completion of construction of the Municipal Facilities, and acceptance of such facilities by the City Engineer as being in compliance with the Developer's Development, the City shall accept the Municipal Facilities, at which time such Municipal Facilities shall be deemed the sole and exclusive property of the City. Upon such acceptance, the City shall thereafter maintain such Municipal Facilities, at the City's costs. Notwithstanding the foregoing, it agreed and understood by and between the parties that the City shall not be obligated to accept any infrastructure or improvement which is not constructed in accordance with the Developer's Development. -7- 443 444 3. Reimbursement to Developer for Costs and Expenses of Constructing the Municipal Facilities. In consideration of Developer's construction of the Municipal Facilities which are to become the property of the City, the City hereby agrees to reimburse Developer for any cost and expense incurred by the Developer in the construction of the Municipal Facilities to the extent of such costs and expenses, or to the extent of the amount of ad valorem real property taxes realized and collected by the City from the City's levy and tax on Developer's Development for a period of eight (8) years following , 200_, the lesser to apply. Reimbursement of these costs and expenses shall be subject to the following terms and conditions: A. Eligibility for Reimbursement. Only actual costs and expenses incurred by the Developer in the construction of the Municipal Facilities which are constructed in accordance with the Developer's Development shall be eligible for reimbursement. The determination of which costs and expenses are eligible and whether construction was made in accordance with the Developer's Development shall be made by the City Engineer, in his reasonable discretion. The costs associated with the removal of trees and brush from the developers' development shall be reasonable costs for reimbursement. B. Time of Request. The Developer shall only be entitled to make a request for reimbursement at that point in time when the Developer has fully completed construction of all of the Municipal Facilities. Any request for reimbursement shall be filed with the City on or before May 31 of any calendar year. C. Request for Reimbursement. Any request for reimbursement shall be in written form. Each request shall itemize the costs and expenses which were incurred by the Developer in the construction of the Municipal Facilities or costs and expenses which were incurred by the developer in the removal of trees and shrubs. Such itemization shall first describe the Municipal Facilities which were constructed and or tress and shrubs1 removed, and then describe the material and labor incurred in the construction of such facilities, and thereafter an itemization of the costs and expenses relating to same. The Developer shall attach to each request supporting documentation that verifies the costs and expenses incurred by the Developer in the construction of the Municipal Facilities. The Developer shall also provide to the City Engineer any other documentation requested by the City Engineer which the City Engineer deems necessary or advisable in his review of the request. Each request made by the Developer shall be verified under oath. D. Review and Approval by the City En ineer. Upon submission of the written request, the City Engineer shall evaluate the request and make a determination as to the eligibility of the costs and expenses as described in the request. As part of the evaluation, the City Engineer shall also make a determination that the Municipal Facilities were constructed in accordance with the Developer's Development. In the event the City Engineer makes a determination that the Municipal Facilities, or any party thereof, were not constructed in accordance with such standards, such determination shall render the Developer's request ineligible for reimbursement. In making such a determination, the City Engineer shall provide a written description of the deficiency or deficiencies. In such event, the Developer shall not have any further right to request reimbursement under this Agreement until such time that the noted deficiency or deficiencies are cured and remedied. In making his evaluation, the City Engineer shall have the right to consult with Developer, and any architect, engineer, contractor, or subcontractor with whom the Developer associated with prior to or during the construction of such Municipal Facilities. E. Upon approval of eligibility of the costs and expenses and the Municipal Facilities, the City Engineer shall make a written report evidencing such E 445 approval. The City Engineer shall state in the written report the amount of the costs and expenses which were approved for reimbursement. In the event the City Engineer should reject any cost or expense as set forth in the request, the City Engineer shall provide an explanation in the written report for such rejection. Upon completion of the written report, the City Engineer shall cause a copy of such written report to be delivered to the Developer and to the Finance Department of the City of Paducah. F. Reimbursement from Finance Department. Upon receipt of the written approval by the City Engineer, the Finance Department shall make a ? determination as to the amount of ad valorem real property taxes which were levied by the City for the City's sole benefit against the real property located in Developer's Development and actually collected and received by the City in each year period of the eight (8) year period following , 200 . The Finance Department shall make payment to the Developer in an amount equal to such taxes actually collected and received by the City for such year periods, subject, however, to the following conditions: (1) The City shall have no obligation whatsoever to reimburse the Developer in excess of the sum total amount of the taxes actually collected and received by the City during the eight-year period. In the event such sum total amount exceeds the sum total of eligible costs and expenses, the City's obligation ofreimbursement shall terminate upon full payment of such costs and expenses. (2) Any taxes which may be collected by the City for the benefit of others, such as the school board, etc., shall not be deemed a part of the reimbursement herein. (3) Only taxes actually received and collected by the City during the aforesaid eight (8) year period following the effective date of this Agreement shall be utilized in determining the reimbursement hereunder. Any taxes collected prior to or after such eight (8) year period shall not be included in such determination, regardless of the date of assessment or levy, issuance of the tax bills, or in the event of any delinquency in payment. 4. Enforcement of Agreement. Each of the parties to this Agreement shall have the right to enforce the terms of this Agreement. In the event of such enforcement, or in the event of any dispute between the parties regarding the meaning or interpretation of any provision of this Agreement, all parties do hereby agree to submit such action to the McCracken Circuit Court. Each party shall have all rights and remedies as provided by law. In the event such action is filed with the McCracken Circuit Court, each party does hereby waive trial by jury. It is agreed by and between the parties that the prevailing party in such action shall have the right to recover its reasonable attorney's fees from the nonprevailing party as part of its costs of litigation. 5. Arbitration. Should any dispute arise between the parties, the parties will try to resolve the dispute by negotiation. If the dispute has not been resolved by such negotiation, the parties will submit the dispute for administered mediation. In the event a dispute cannot be resolved by mediation, the following provisions shall apply: (a) As to any unresolved dispute, upon the written request of any party, the dispute shall be submitted to an arbitrator to be selected by the parties. If the parties cannot agree within ten (10) days after the receipt of written notice from the other party requesting it to do so, the appointment shall be left to the American Arbitration Association. (b) Except as otherwise specifically set forth herein, the arbitrator shall conduct the arbitration in accordance with the Commercial Arbitration 446 apply: Rules of the American Arbitration Association. The arbitration shall take place in Paducah, Kentucky. (c) The decision in writing of the arbitrator, when filed with the parties hereto, shall be final and binding on both parties. The arbitrator shall award the costs and expenses incurred by the prevailing party against the non -prevailing party to such extent as determined by the arbitrator as the arbitrator deems just and equitable. Judgment may be entered upon the final decision of the arbitrator in any court having jurisdiction. Any party shall have the right to sue in court to enforce the arbitration award. In accepting arbitration, the parties expressly waive trial by jury. 6. Miscellaneous Provisions. The following miscellaneous provisions shall A. Notices. All notices provided for herein will be in writing and addressed to the parties. B. Other Rights and Remedies. The duties and obligations imposed by this Agreement and the rights and remedies available thereunder are in addition to an not a limitation of any duties, obligations, rights, and remedies, otherwise imposed or available by law. C. Governing Law. This document shall, in all respects, be governed by the laws of the state of Kentucky. D. Entire Agreement. This Agreement expresses the complete agreement of the parties and supersedes all prior written or oral agreements or understandings between the City and the Developer with regard to the matters addressed herein. The making, execution, and delivery of this Agreement by the parties hereto has not been induced by any representations, statements, warranties or agreements other than those expressly set forth herein. E. Amendments. This Agreement may not be modified or amended unless by a writing signed by both parties hereto. F. Time. All times referred herein shall be strictly construed, as all of such times shall be deemed of the essence. G. Counterparts. This Agreement may be executed simultaneously or in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement. H. Successors and Assigns. This Agreement shall be binding upon the parties hereto, their heirs, successors, and assigns. I. Effective Date of Agreement. The effective date of this Agreement shall be the date that the mayor of the City of Paducah executes this Agreement. 10 CITY OF PADUCAH, KENTUCKY By William Paxton, Mayor Falconite Development, Inc. LI -A Title STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this day of , 2007, by William Paxton, Mayor, City of Paducah. My commission expires Notary Public, State at Large STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this , 2007, by , on behalf of Falconite Development Inc. My commission expires 11 Notary Public, State at Large day of _(title) 447