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HomeMy WebLinkAbout2010-12-7768128983ver2 ORDINANCE NO. 2010-12-7768 AN ORDINANCE AUTHORIZING AND APPROVING THE WESTWOOD HILLS RESIDENTIAL INFILL DEVELOPMENT AGREEMENT AMONG THE CITY OF PADUCAH, KENTUCKY, AND SIGNATURE HOMES OF PADUCAH, LLC WHEREAS, on or about June 8, 2010, Signature Homes of Paducah, LLC ("Developer") purchased the single family residential development located within the corporate boundaries of the City of Paducah and generally known as the Westwood Hills Subdivision including, without limitation, all public infrastructure and improvements installed and to be constructed within such development; and WHEREAS, the public infrastructure and improvements within Westwood Hills Subdivision have an estimated fair market value of $400,000.00; and WHEREAS, Developer has requested, that the City reimburse Developer for its costs in acquiring the public infrastructure and improvements to the extent of either (i) the sum of $400,000.00 or (ii) the amount of ad valorem real property taxes realized and collected by the City from the City's levy and tax on the residential lots located within Westwood Hills Subdivision for a period of ten (10) years following the date of the Letter of Acceptance issued by the City Engineer -Public Works Director, the lesser to apply. WHEREAS, for the following reasons the City is agreeable to reimbursing Developer's costs in acquiring the public infrastructure and improvements within Westwood Hills Subdivision: (i) upon completion and acceptance the public infrastructure and improvements will become the property of the City; (ii) the public infrastructure and improvements will increase residential infill within the City limits by encouraging development of single-family owner -occupied housing on vacant, orphaned, or underutilized land located in the mature portions of Paducah; and iii) the public infrastructure and improvements will promote the health of the existing public school system by increased residential development within the existing City of Paducah School System; (iv) the public infrastructure and improvements will promote an increase in the revenue tax base necessary to meet various capital needs, especially in the area of public safety and an increase the population base of the City of Paducah, therefore increasing the possibilities of becoming a designated urbanized area; and WHEREAS, City and Developer do now desire to memorialize by a binding writing their agreement regarding the City's reimbursement to Developer of its cost incurred for the installation and construction of the public infrastructure and improvements within Westwood Hills Subdivision. BE IT ORDAINED BY THE CITY OF PADUCAH, KENTUCKY: SECTION 1. Recitals and Authorization. The City hereby approves the Westwood Hills Residential Infill Development Agreement (this "Agreement") by and among the City and Developer in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it _ — r —�.. - ��_— . ._v...:. b — -—s.__­__._wa... �_, _J�'J""�^'"�"L'L2[#^-L._IL�•L.- ....L - L_'` is necessary and desirable and in the best interests of the City to enter into this Agreement for the purposes therein specified, and the execution and delivery of this Agreement is hereby authorized and approved. The Mayor of the City is hereby authorized to execute this Agreement with such changes in this Agreement not inconsistent with this Ordinance and not substantially adverse to the City as may be approved by the Mayor executing the same on behalf of the City. The approval of such changes by the Mayor, and that such are not substantially adverse to the City, shall be conclusively evidenced by the execution of this Agreement by the Mayor. 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. ATTEST: Tammara S. Brock, City Clerk Introduced by the Board of Commissioners, November 16, 2010 Adopted by the Board of Commissioners, December 7, 2010 Recorded by Tammara S. Brock, City Clerk, December 7, 2010 Published by The Paducah Sun, December 11, 2010 ord\plan\agree-westwood hills infill dev 2 EXHIBIT A TO THE ORDINANCE 130446ver3 clean Westwood Hills Residential Infill Development Agreement THIS INFILL DEVELOPMENT AGREEMENT made and executed on this day of , 2010, by 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 SIGNATURE HOMES OF PADUCAH, LLC a Kentucky limited liability company of 540 Parker Road, Paducah, Kentucky 42003 (hereinafter referred to as "Developer"). WITNESSETH: WHEREAS, on May 21, 2007, Shepherd's Nest Villas, LLC, ("Shepherd's Nest") made application to the City and tendered a final plat entitled "Westwood Hills Subdivision" (the "Final Plat"), together with subdivision plans and a stormwater management plan (the "Plans") approved by the City Engineer on July 20, 2007 for the development and subdivision of approximately 44 acres of land located within the corporate boundaries of the City of Paducah, McCracken County, Kentucky into a single family residential development (herein after referred to as "Westwood Hills Subdivision"); and WHEREAS, the Final Plat of Westwood Hills Subdivision was conditionally approved by the City on July 10, 2007, by Ordinance #2007-7-7297, upon the commitment of Shepherd's Nest to develop Westwood Hills Subdivision and to construct and install all required public infrastructure and improvements within the subdivision (the "Municipal Facilities") in accordance with the Final Plat, the Plans, and -all applicable subdivision regulations (the "Subdivision Regulations"); and WHEREAS, the Final Plat of Westwood Hills Subdivision was subsequently filed of record in the McCracken County Court Clerk's office in Plat Section "L," page 1842; and WHEREAS, the City desires to provide municipal services to benefit Westwood Hills Subdivision, and ultimately residents to be located therein, but requires the Municipal Facilities which are necessary for the provision of such municipal services, including streets, gutters, and other public improvements, which upon completion and acceptance by the City will become the property of the City, to be constructed at no cost to the City; and WHEREAS, Shepherd's Nest completed or paid for the completion of a portion of the Municipal Facilities but failed to complete all of the Municipal Facilities within Westwood Hills Subdivision; and WHEREAS, on or about February 23, 2010, Atlas Tri-State SPE, LLC ("Atlas"), a subsidiary of Branch Banking and Trust Company, entered into a Development Agreement with the City (the "Development Agreement")(a copy of which is attached hereto as Exhibit A), whereby it agreed to assume and to complete the remaining Municipal Facilities within Westwood Hills Subdivision; and WHEREAS, Developer is now the owner of Westwood Hills Subdivision having purchase same from Atlas on or about June 8, 2010, further, Developer purchased the Municipal Facilities within Westwood Hills Subdivision for a purchase price of $400,000.00; and WHEREAS, Atlas remains committed to complete the Municipal Facilities as required under the Development Agreement; and -- --�— � �-- .�..., . . , vel WHEREAS, for reason that the Municipal Facilities within Westwood Hills Subdivision will become the property of the City upon completion of construction and acceptance by the City, the City is agreeable to reimbursing Developer its cost in acquiring the Municipal Facilities (which sum is $400,000.00) to the extent of either the lesser of the total sum of $400,000.00 or the amount of ad valorem real property taxes realized and collected by the City from property located within Westwood Hills Subdivision for a period of ten (10) years following the date of the Letter of Acceptance (as defined herein), provided that all required public infrastructure and improvements are completed by Atlas and accepted by the City; and WHEREAS, further the completion of the development of the Westwood Hills Subdivision will increase residential infill development in the City of Paducah by encouraging 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, further the completion of the development of the Westwood Hills Subdivision will (i) promote the health of the existing public school system by increased residential development within the existing City of Paducah School System; (ii) increase the revenue tax base necessary to meet various capital needs, especially in the area of public safety; and (iii) increase the population base of the City of Paducah, therefore increasing the possibilities of becoming a designated urbanized area. 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. Reimbursement to Developer for Costs Incurred in Acquiring the Municipal Facilities. The City hereby agrees to reimburse Developer for the cost incurred by the Developer for the acquisition of the Municipal Facilities to the extent of either (i) the sum of $400,000.00 or (ii) the amount of ad valorem real property taxes realized and collected by the City from the City's levy and tax on the residential lots located within Westwood Hills Subdivision for a period of ten (10) years following the date of the Letter of Acceptance (the "Acceptance") issued by the City Engineer -Public Works Director, the lesser to apply. Reimbursement of the cost shall be subject to the following terms and conditions: A. Time of Request. The Developer shall only be entitled to make a request for reimbursement upon satisfaction of all conditions precedent as set forth in paragraph 2 below. Any request for reimbursement shall be filed with the City on or before May31 st of each calendar year. B. Request for Reimbursement. Any request for reimbursement shall be in written form and delivered to the Finance Department. C. Reimbursement from Finance Department. Upon receipt of the written request, 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 residential lots located within Westwood Hills Subdivision and actually collected and received by the City in each year of the ten (10) year period following the Acceptance. The Finance Department shall make payment to the Developer in an amount equal to such taxes actually collected and received by the City for each such year, 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 ten (10) year period following the Acceptance. (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 ten (10) year period following the Acceptance shall be utilized in determining the reimbursement hereunder. Any taxes collected prior to or after such ten (10) 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. D. Termination. The City's obligation to reimburse the Developer shall terminate upon the happening of either (i) payment in full of the $400,000.00 or (ii) the expiration of the ten (10) year period following the Acceptance, whichever shall occur first. 2. Conditions Precedent to Reimbursement. Developer acknowledges that the following conditions precedent to reimbursement must be satisfied prior to any reimbursement to Developer: A. The Municipal Facilities have been constructed as required by and in accordance with the requirements of the Final Plat, the Plans, the Development Agreement, and the Subdivision Regulations; and B. The Municipal Facilities are approved and accepted by the City Engineer - Public Works Director and a letter of acceptance has been issued by the City Engineet-Public Works Director (the "Acceptance"). 3. Acceptance by the City. Upon the Acceptance of the Municipal Facilities by the City, the Municipal Facilities shall be deemed the sole and exclusive property of the City. Upon the 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 the Municipal Facilities which are not constructed in accordance with Final Plat, the Plans, the Development Agreement, and the Subdivision Regulations. 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 parry 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 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 apply: award the costs and expenses incurred by the prevailing party against the non -prevailing parry 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 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 and 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 have 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. IN WITNESS WHEREOF, the parties hereto have on the date set forth above caused this instrument to be duly EXECUTED AND DELIVERED by authority duly given. CITY OF PADUCAH, KENTUCKY By William Paxton, Mayor SIGNATURE HOMES OF PADUCAH,LLC By Title STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this day of , 2010, by William Paxton, Mayor, of the City of Paducah, Kentucky. My commission expires Notary Public, State at Large STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this day of , 2010, by , (title) of Signature Homes of Paducah, LLC, a Kentucky limited liability company, on behalf of said company. My commission expires 7 Notary Public, State at Large