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HomeMy WebLinkAbout2019-04-8573ORDINANCE 2019-4-8573 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING TWO RESIDENTIAL INFILL DEVELOPMENT AGREEMENTS BY AND AMONG THE CITY OF PADUCAH, KENTUCKY AND HIGDON DEVELOPMENT, INC., FOR RIDGEWOOD VILLAS CONDOMINIUMS PHASE I AND PHASE II AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS AND ALL DOCUMENTS RELATED TO SAME WHEREAS, the Board of Commissioners adopted Ordinance No. 2014-4-8134 authorizing the approval of a Memorandum of Understanding between Higdon Development, Inc., as Developers and the City of Paducah, which Memorandum of Understanding is dated April 15, 2014 (the "MOU"); and WHEREAS, Higdon Development, Inc., has completed all requirements in accordance with the City of Paducah Subdivision Ordinances and has obtained final subdivision approval for both Phase I and Phase II from the Board of Commissioners by Ordinance No. 2016-8-8396 and Ordinance No. 2019-3-8565, respectively; and WHEREAS, the Developer's Development requires Developer to add improvements to the public infrastructure; and WHEREAS, Developer's Development is presently located in the incorporated area of Paducah, McCracken County, Kentucky and suitable for urban development without unreasonable delay; and WHEREAS, it would be beneficial to the Developer and Developer's Development, and the successor owners of property located in Developer's Development, to enjoy municipal services from the City; and WHEREAS, the City desires to provide municipal services to benefit Developer's Development, and the land owners to be located therein, but requests Developer to construct, at Developer's cost, eligible public infrastructure and improvements to local streets, curbs, gutters, sidewalks and storm sewer conveying systems which are necessary for the provision of safe public transportation and municipal services; and WHEREAS, eligible public improvements will become the property of the government having jurisdictional authority over said improvements' construction, completion and acceptance; and WHEREAS, the City is agreeable to reimbursing Developer for the cost and expenses ($126,397.00 for Phase I and $95,053.00 for Phase II per the engineer's estimate prepared by Site Worx Survey & Design, LLC, and approved by the City Engineer) incurred by Developer to construct Eligible Public Improvements within and/or depicted by the 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 resulting from the Developer's Development for six (6) years beginning July 1, 2019 through June 30, 2025 for Phase I and for ten (10) years beginning July 1, 2019 through June 30, 2029 the lesser to apply. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY, as follows: SECTION 1. Recitals and Authorization — Phase I. The City of Paducah hereby approves the Ridgewood Villas Condominiums Phase I Residential Infill Development Agreement with Higdon Development, Inc., for a period of six (6) years, beginning July 1, 2019 and ending June 30, 2025, with the total rebate not to exceed $126,397.00 in substantially the form attached hereto and is made a part hereof (Exhibit A). It is farther determined that it is necessary and desirable and in the best interests of the City to enter into the Residential Infill Development Agreement for the purposes therein specified. The Mayor of the City of Paducah is hereby authorized to execute the Agreement, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the Residential Infill Development Agreement. SECTION 2. Recitals and Authorization — Phase II. The City of Paducah hereby approves the Ridgewood Villas Condominiums Phase II Residential Infill Development Agreement with Higdon Development, Inc., for a period of ten (10) years, beginning July 1, 2019 and ending June 30, 2029, with the total rebate not to exceed $95,053.00 in substantially the form attached hereto and is made a part hereof (Exhibit B). It is further determined that it is necessary and desirable and in the best interests of the City to enter into the Residential Infill Development Agreement for the purposes therein specified. The Mayor of the City of Paducah is hereby authorized to execute the Agreement, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the Residential Infill Development Agreement. SECTION 3. 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 parts of this Ordinance. SECTION 4. 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 the 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 5. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance, to the extent of such conflict, are hereby repealed and the provisions of this Ordinance shall prevail and be given effect. SECTION 6. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. Brandi Harless, Ma or Atte t: WLN 'ndsay Parish, Clerk Introduced by the Board of Commissioners, April 9, 2019 Adopted by the Board of Commissioners, April 23, 2019 Recorded by Lindsay Parish, City Clerk, April 23, 2019 Published by the Paducah Sun, April 26, 2019 \ord\plan\Residential Infill Development Higdon Ridgewood Villas Phase I & II EXHIBIT A RIDGEWOOD VILLAS CODOMINIUMS - PHASE 1 RESIDENTIAL INFILL DEVELOPEMNT AGREEMENT THIS RESIDENTUAL INFILL AGREEMENT made and executed on this day of 2019, by and between the City of Paducah, Kentucky; a city of the second class, 300 South Fifth Street, P. 0. Box 2267, Paducah, Kentucky 42002-2267 (hereinafter referred to as "City"), and Higdon Development, Inc., a Kentucky corporation (hereinafter referred to as "Developer"). WITNESSETH: WHEREAS, the Board of Commissioners adopted Ordinance No. 2014-4-8134 authorizing the approval of an Memorandum of Understanding between Higdon Development, Inc., as Developers and the City of Paducah, which Memorandum of Understanding is dated April 15, 2014 (the "MOU"); and WHEREAS, Developer is the owner of Tract A-1, consisting of 1.984 acres and Tract A-2, consisting of 3.159 acres, having a combined acreage of 5.143 acres of real property, which is located in McCracken County, Kentucky, a document describing real property is set forth in Final Plat which is entitled, "Final Plat of Subdivision & Establishment of Condominium Development & Dedication, Ridgewood Villas Condominiums - Phase 1," for Higdon Development, Inc., July 18, 2016 by Mr. Herb Simmons, a Kentucky Professional Land Surveyor (P.L.S. No. 3732) is attached hereto; and WHEREAS, Developer has completed all requirements in accordance with the City of Paducah Subdivision Ordinances and 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 July 18, 2016 and by Board of Commissioners on August 9, 2016, Ordinance No. 2016-8-8396, which approval is evidenced by the Final Plat recorded in Plat Section Miscellaneous Book No.1, page 192, 193, and 194, in the McCracken County Clerk's office. WHEREAS, Developer's Development requires Developer to add improvements to the public infrastructure; and WHEREAS, Developer's Development is presently located in the incorporated area of Paducah, McCracken County, Kentucky and suitable for urban development without unreasonable delay; and WHEREAS, it would be beneficial to the Developer and Developer's Development, and the successor owners of property located in Developer's Development, to enjoy municipal services from the City; and WHEREAS, the City desires to provide municipal services to benefit Developer's Development, and the land owners to be located therein, but requests Developer to construct, at Developer's cost, to construct eligible public infrastructure and improvements which are necessary for the provision of safe public transportation and municipal services; and WHEREAS, eligible public improvements may include without limitation the improvement to existing transportation facilities owned and operated by the Kentucky Transportation Cabinet (hereinafter referred to as "KYTC"); the construction or improvement to local streets, curbs, gutters, sidewalks and storm sewer conveying systems (hereinafter referred to as "Eligible Public Improvements") as depicted in Developer's Development, which upon completion and acceptance by the appropriate governing body that may include without limitation either or both the City and KYTC (hereinafter referred to as the "Government") shall become the property of the Government. The final approval and acceptance of the Eligible Public Improvements shall be determined by the Government having jurisdictional authority over the Eligible Public Improvements' construction, completion, and acceptance ; and WHEREAS, for reason that such Eligible Public Improvements will become the property of the Government having jurisdictional authority over said improvements' construction, completion, and acceptance, the City is agreeable to reimbursing Developer for the cost and expenses ($126,397.00 per an Engineer's Estimate prepared by Site Worx Survey & Design, LLC and subsequently approved by the City Engineer) incurred by Developer to construct Eligible Public Improvements within and/or depicted by the 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 resulting from the Developer's Development for six (6) years beginning July 1, 2019 through June 30, 2025 (hereinafter referred to as "Period of Eligibility") 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/Improvements of Eligible Public Improvements. Developer shall construct within Developer's Development the public infrastructure and improvements which are necessary for the provision of public safety and municipal services by the Government defined herein as Eligible Public Improvements. All Eligible Public Improvements shall be located within an existing and/or proposed public right-of-way(s) and/or public easements to be dedicated by the plat of Developer's Development or shown as an improvement to existing publicly owned surface transportation infrastructure. The City Engineer and/or the Government having jurisdictional authority shall have the right to inspect all construction of the Eligible Public Improvements during the construction process to ensure that construction of such Eligible Public Improvements are in compliance with the Developer's Development and in compliance with the applicable minimum standards and requirements, including without limitation building codes, zoning laws, or other applicable federal, state or local laws or ordinances of the Government having jurisdictional authority. 2. Acceptance by the Government. Upon completion of construction of the Eligible Public Improvements, the improvements shall be inspected by the Government having jurisdictional authority to determine and/or identify if the improvements have deficiencies. If it is determined that deficiencies are in need of correction, the Developer shall complete the appropriate corrective actions needed prior to the improvements being accepted by the Government having jurisdictional authority. Upon the Developer completing the correction of all identified deficiencies, the Government having jurisdictional authority shall accept the Eligible Public Improvements, at which time such improvements shall be deemed the sole and exclusive property of the Government having jurisdictional authority. Upon such acceptance, the Government having jurisdictional authority shall thereafter maintain the Eligible Public Improvements, at the Government's costs. Notwithstanding the foregoing, it agreed and understood by and between the parties that the Government shall not be obligated to accept any of the Developer's improvement's that do not meet the minimum standards of the Government. 3. Reimbursement to Developer for Costs and Expenses of Constructing Eligible Public Improvements. In consideration of Developer's construction of Eligible Public Improvements which are to become the property of the Government having jurisdictional authority, the City hereby agrees to reimburse Developer for any cost and expense incurred by the Developer for the construction cost of the subject improvement to the extent of such costs and expenses, or to the extent of the amount of ad valorem real property taxes realized and collected annually by the City from the City's levy and tax on Developer's Development during the Period of Eligibility, 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 for the construction of the Eligible Public Improvements which are constructed in accordance with the Developer's Development and are ready to be accepted by the Government shall be eligible for reimbursement. Eligible costs for reimbursements (hereinafter referred to as "Reimbursements") shall be limited to the Developer's actual expenses incurred to purchase materials, labor and charges for the use/rental of equipment to construct the Eligible Public Improvements. Expense associated with the Developer's overhead, profit or any other related expense shall not be considered for reimbursement. In the event that these records are NOT available, the City Engineer may accept an engineer's cost estimate that is representative of the value for eligible reimbursement expenses. The determination of which costs and expenses are eligible and whether construction and completion of the Eligible Public Improvements were made in accordance with the Developer's Development shall be made by the City Engineer in his reasonable discretion. 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 any Eligible Public Improvements. All requests for Reimbursement shall be filed with the City Engineer's Office on or before April 30 of any calendar year. C. Request for Reimbursement. Any request for Reimbursement shall be in written form bearing the Developer and Development name as described herein. Each request shall itemize the costs and expenses which were incurred by the Developer that are eligible for Reimbursement. Such itemization shall first describe the Eligible Public Improvement constructed, accompanied with the Developer's supporting construction documentation attached to each request that verifies the costs and expenses incurred by the Developer for the construction of the Eligible Public Improvements for Reimbursement. 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 Engineer. Upon submission of the written request, the City Engineer shall evaluate the request and make a determination as to the eligibility of the Reimbursement. As part of the evaluation, the City Engineer shall also make a determination that the Eligible Public Improvements were constructed in accordance with the Developer's Development. In the event the City Engineer makes a determination that the Eligible Public Improvements, or any party thereof, were not constructed in accordance with such minimum Government 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 engineer, contractor, or subcontractor with whom the Developer associated with prior to or during the construction of such Eligible Public Improvement. E. Upon approval of eligibility of any Reimbursement for the Eligible Public Improvements. The City Engineer shall make a written report evidencing such 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 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 for each year period during the Period of Eligibility. The Finance Department shall make payment to the Developer in an amount equal to such taxes actually collected and received by the City specific to each of the City's Fiscal Years within the Period of Eligibility, 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 ad valorem real property taxes actually collected and received by the City annually during the Period of Eligibility. In the event such sum total amount exceeds the sum total of eligible Reimbursement, the City's obligation of Reimbursement shall terminate upon full payment of such Reimbursement. (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 Period of Eligibility following the effective date of this Agreement from levies against the Developer's Development shall be utilized in determining the Reimbursement described herein. Any taxes collected prior to the Period of Eligibility 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. (5) 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 non -prevailing party as part of its costs of litigation. (6) 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 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. (7) Miscellaneous Provisions. The following miscellaneous provisions shall apply: A. Notices. All notices provided for herein will be in writing and addressed to the parties at the addresses as referenced above. 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 both parties agree and is evidenced in 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 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 his 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 relieve the Developer from any obligations of this Agreement for which the Developer shall remain fully bound to the City. 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 and has received the approval of the governing body of the City of Paducah. j. Assurances. The Developer agrees to execute such further documents and instruments as shall be necessary to fully carry out the terms of this Agreement. CITY OF PADUCAH By: Brandi Harless, Mayor, City of Paducah Date: 2019 HIGDON DEVELOPMENT. INC. Lfi Date: 2019 STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this day of 2019 by Brandi Harless, 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 _ day of by (title) on behalf of Higdon Development, Inc. My commission expires Notary Public, State at Large 2019 EXHIBIT B RIDGEWOOD VILLAS CODOMINIUMS — PHASE 2 RESIDENTIAL INFILL DEVELOPEMNT AGREEMENT THIS RESIDENTUAL INFILL AGREEMENT made and executed on this _ day of 2019, by and between the City of Paducah, Kentucky; a city of the second class, 300 South Fifth Street, P. 0. Box 2267, Paducah, Kentucky 42002-2267 (hereinafter referred to as "City"), and Higdon Development, Inc., a Kentucky corporation (hereinafter referred to as "Developer"). WITNESSETH: WHEREAS, the Board of Commissioners adopted Ordinance No. 2014-4-8134 authorizing the approval of an Memorandum of Understanding between Higdon Development, Inc., as Developers and the City of Paducah, which Memorandum of Understanding is dated April 15, 2014 (the "MOU"); and WHEREAS, Developer is the owner of Tract B-1, consisting of 1.477 acres and Tract B-2, consisting of 1.103 acres, having a combined acreage of 2.580 acres of real property, which is located in McCracken County, Kentucky, a document describing real property is set forth in Final Plat which is entitled, "Final Plat of Subdivision, & Establishment of Condominium Development & Dedication, Ridgewood Villas Condominiums - Phase 2;' for Higdon Development, Inc., December 3, 2018 by Mr. Herb Simmons, a Kentucky Professional Land Surveyor (P.L.S. No. 3732) is attached hereto; and WHEREAS, Developer has completed all requirements in accordance with the City of Paducah Subdivision Ordinances and 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 May 16, 2016 and by Board of Commissioners on March 26, 2019, Ordinance No. 2019 - 3 - 8565, which approval is evidenced by the Final Plat recorded in Plat Section CABM, pages 1378, 1379, and 1380, in the McCracken County Clerk's office. WHEREAS, Developer's Development requires Developer to add improvements to the public infrastructure; and WHEREAS, Developer's Development is presently located in the incorporated area of Paducah, McCracken County, Kentucky and suitable for urban development without unreasonable delay; and WHEREAS, it would be beneficial to the Developer and Developer's Development, and the successor owners of property located in Developer's Development, to enjoy municipal services from the City; and WHEREAS, the City desires to provide municipal services to benefit Developer's Development, and the land owners to be located therein, but requests Developer to construct, at Developer's cost, to construct eligible public infrastructure and improvements which are necessary for the provision of safe public transportation and municipal services; and WHEREAS, eligible public improvements may include without limitation the improvement to existing transportation facilities owned and operated by the Kentucky Transportation Cabinet (hereinafter referred to as "KYTC"); the construction or improvement to local streets, curbs, gutters, sidewalks and storm sewer conveying systems (hereinafter referred to as "Eligible Public Improvements") as depicted in Developer's Development, which upon completion and acceptance by the appropriate governing body that may include without limitation either or both the City and KYTC (hereinafter referred to as the "Government") shall become the property of the Government. The final approval and acceptance of the Eligible Public Improvements shall be determined by the Government having jurisdictional authority over the Eligible Public Improvements' construction, completion, and acceptance ; and WHEREAS, for reason that such Eligible Public Improvements will become the property of the Government having jurisdictional authority over said improvements' construction, completion, and acceptance, the City is agreeable to reimbursing Developer for the cost and expenses ($95,053.00 per an Engineer's Estimate prepared by Site Worx Survey & Design, LLC and subsequently approved by the City Engineer) incurred by Developer to construct Eligible Public Improvements within and/or depicted by the 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 resulting from the Developer's Development for ten (10) years beginning July 1, 2019 through June 30, 2029 (hereinafter referred to as "Period of Eligibility") 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/Improvements of Eligible Public Improvements. Developer shall construct within Developer's Development the public infrastructure and improvements which are necessary for the provision of public safety and municipal services by the Government defined herein as Eligible Public Improvements. All Eligible Public Improvements shall be located within an existing and/or proposed public right-of-way(s) and/or public easements to be dedicated by the plat of Developer's Development or shown as an improvement to existing publicly owned surface transportation infrastructure. The City Engineer and/or the Government having jurisdictional authority shall have the right to inspect all construction of the Eligible Public Improvements during the construction process to ensure that construction of such Eligible Public Improvements are in compliance with the Developer's Development and in compliance with the applicable minimum standards and requirements, including without limitation building codes, zoning laws, or other applicable federal, state or local laws or ordinances of the Government having jurisdictional authority. 2. Acceptance by the Government. Upon completion of construction of the Eligible Public Improvements, the improvements shall be inspected by the Government having jurisdictional authority to determine and/or identify if the improvements have deficiencies. If it is determined that deficiencies are in need of correction, the Developer shall complete the appropriate corrective actions needed prior to the improvements being accepted by the Government having jurisdictional authority. Upon the Developer completing the correction of all identified deficiencies, the Government having jurisdictional authority shall accept the Eligible Public Improvements, at which time such improvements shall be deemed the sole and exclusive property of the Government having jurisdictional authority. Upon such acceptance, the Government having jurisdictional authority shall thereafter maintain the Eligible Public Improvements, at the Government's costs. Notwithstanding the foregoing, it agreed and understood by and between the parties that the Government shall not be obligated to accept any of the Developer's improvement's that do not meet the minimum standards of the Government. 3. Reimbursement to Developer for Costs and Expenses of Constructing Eligible Public Improvements. In consideration of Developer's construction of Eligible Public Improvements which are to become the property of the Government having jurisdictional authority, the City hereby agrees to reimburse Developer for any cost and expense incurred by the Developer for the construction cost of the subject improvement to the extent of such costs and expenses, or to the extent of the amount of ad valorem real property taxes realized and collected annually by the City from the City's levy and tax on Developer's Development during the Period of Eligibility, 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 for the construction of the Eligible Public Improvements which are constructed in accordance with the Developer' Development and are ready to be accepted by the Government shall be eligible for reimbursement. Eligible costs for reimbursements (hereinafter referred to as "Reimbursements") shall be limited to the Developer's actual expenses incurred to purchase materials, labor and charges for the use/rental of equipment to construct the Eligible Public Improvements. Expense associated with the Developer's overhead, profit or any other related expense shall not be considered for reimbursement. In the event that these records are NOT available, the City Engineer may accept an engineer's cost estimate that is representative of the value for eligible reimbursement expenses. The determination of which costs and expenses are eligible and whether construction and completion of the Eligible Public Improvements were made in accordance with the Developer's Development shall be made by the City Engineer in his reasonable discretion. 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 any Eligible Public Improvements. All requests for Reimbursement shall be filed with the City Engineer's Office on or before April 30 of any calendar year. C. Request for Reimbursement. Any request for Reimbursement shall be in written form bearing the Developer and Development name as described herein. Each request shall itemize the costs and expenses which were incurred by the Developer that are eligible for Reimbursement. Such itemization shall first describe the Eligible Public Improvement constructed, accompanied with the Developer's supporting construction documentation attached to each request that verifies the costs and expenses incurred by the Developer for the construction of the Eligible Public Improvements for Reimbursement. 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 Engineer. Upon submission of the written request, the City Engineer shall evaluate the request and make a determination as to the eligibility of the Reimbursement. As part of the evaluation, the City Engineer shall also make a determination that the Eligible Public Improvements were constructed in accordance with the Developer's Development. In the event the City Engineer makes a determination that the Eligible Public Improvements, or any party thereof, were not constructed in accordance with such minimum Government 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 engineer, contractor, or subcontractor with whom the Developer associated with prior to or during the construction of such Eligible Public Improvement. E. Upon approval of eligibility of any Reimbursement for the Eligible Public Improvements. The City Engineer shall make a written report evidencing such 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 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 for each year period during the Period of Eligibility. The Finance Department shall make payment to the Developer in an amount equal to such taxes actually collected and received by the City specific to each of the City's Fiscal Years within the Period of Eligibility, 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 ad valorem real property taxes actually collected and received by the City annually during the Period of Eligibility. In the event such sum total amount exceeds the sum total of eligible Reimbursement, the City's obligation of Reimbursement shall terminate upon full payment of such Reimbursement. (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 Period of Eligibility following the effective date of this Agreement from levies against the Developer's Development shall be utilized in determining the Reimbursement described herein. Any taxes collected prior to the Period of Eligibility 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. (5) 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 non -prevailing party as part of its costs of litigation. (6) 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 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. (7) Miscellaneous Provisions. The following miscellaneous provisions shall apply: A. Notices. All notices provided for herein will be in writing and addressed to the parties at the addresses as referenced above. 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 both parties agree and is evidenced in 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 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 his 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 relieve the Developer from any obligations of this Agreement for which the Developer shall remain fully bound to the City. 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 and has received the approval of the governing body of the City of Paducah. j. Assurances. The Developer agrees to execute such further documents and instruments as shall be necessary to fully carry out the terms of this Agreement. CITY OF PADUCAH By: Brandi Harless, Mayor, City of Paducah Date: 2019 HIGDON DEVELOPMENT, INC. BV: Date: 2019 STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this _ day of by Brandi Harless, 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 _ day of by . (title) on behalf of Higdon Development, Inc. My commission expires Notary Public, State at Large 2019 2019