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HomeMy WebLinkAbout2012-5-7921146907 ORDINANCE NO. 2012 — 5 - 7921 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING AN AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING BY AND AMONG THE CITY OF PADUCAH, KENTUCKY, AND HIGDON DEVELOPMENT, INC., AND GREENWAY VILLAGE, LLC, 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, Higdon Development, Inc., a Kentucky corporation, and its affiliate company, Greenway Village, LLC, a Kentucky limited liability company (collectively, the "Developers") are the present owner of a certain tract of vacant real estate located within the corporate boundaries of the City of Paducah upon which Developers propose to construct a multi -family residential development (the "Residential Development"), which real estate is generally bounded by County Park Road, Stuart Nelson Park Road, and Stuart Nelson Park, 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 the City and Higdon Development, Inc., entered into a Memorandum of Understanding dated March 2, 2011 (the "MOU"); and WHEREAS, the MOU expired on March 2, 2012; and City and the Developers now desire to amend and restate the MOU so that the obligations of the parties shall continue under this Amended and Restated Memorandum of Understanding. 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 Amended and Restated Memorandum of Understanding among the City and the Developers (the "Amended and Restated MOU") in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it is necessary and desirable and in the best interests of the City to enter into the Amended and Restated MOU for the purposes therein specified, and the execution and delivery of the Amended and Restated MOU is hereby authorized and approved. The Mayor of the City is hereby authorized to execute the Amended and Restated MOU, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the Amended and Restated MOU with such changes in the Amended and Restated 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 the Amended and Restated 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 KRMChapter 424. ATTEST: jwy)�� City Clerk Introduced by the Board of Commissioners, April 24, 2012 Adopted by the Board of Commissioners, May 8, 2012 Recorded by City Clerk, May 8, 2012 Published by The Paducah Sun, May 14, 2012 \ord\plan\MOU-Higdon Dev amend 5-2012 2 4/12/2012146900 EXHIBIT A TO ORDINANCE AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING This is an Amended and Restated Memorandum of Understanding (this "Amended and Restated MOU") made and entered into on the day of , 2012, by and between the CITY OF PADUCAH, KENTUCKY (the "City" or "City of Paducah"), a municipality of the second class, and HIGDON DEVELOPMENT, INC., a Kentucky corporation, and its affiliated company, GREENWAY VILLAGE, LLC, a Kentucky limited liability company (collectively, the "Developers"). WHEREAS, Developers are the present owner of a certain tract of vacant real estate recorded in deed book 778 page 634 and recorded in plat section M, page 483, in the McCracken County Court Clerk's office, located within the corporate boundaries of the City of Paducah upon which Developers proposes to construct a residential development, which real estate is generally bounded by County Park Road, Stuart Nelson Park Road and Stuart Nelson Park, in the city of Paducah, McCracken, Kentucky (the "Property"); and WHEREAS, on March 2, 2011, Higdon Development, Inc., and the City entered into a Memorandum of Understanding (the "MOU") outlining the terms of a Development Agreement pertaining to the Property, which Memorandum of Understanding expired on March 2, 2012; and WHEREAS, the parties hereto now desire to amend and restate the MOU and the obligations of the parties shall continue under this Amended and Restated MOU, and shall not in any event be terminated, extinguished or annulled, but shall hereafter be governed by this - Amended and Restated MOU; and it is further understood and agreed that the MOU is being amended and restated by entry into this Amended and Restated MOU on the date hereof; 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 (as defined herein) will encourage development of single family, condominiums, and multi -family 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 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 3 - - - -�- -- WHEREAS, in order to insure that the Residential Development will have a positive impact on the entire community the City and the Developers 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. Developers agree to the following: Develop the Property for the exclusive use as a single family, condominiums, and multiple family residential development and construct and install all public improvements within the "residential development" in accordance with the final subdivision plat or plats approved by the Paducah Planning Commission ( the "Planning Commission"), the subdivision plans and stormwater management plan approved by the City Engineer, and all applicable subdivision regulations as set forth in Chapter 102, Article I and II of the Code of Ordinances—City of Paducah, Kentucky (the "Subdivision Ordinance")(the "Residential Development"). For purposes of this Amended and Restated MOU, public improvements shall include: streets, sidewalks, curbs, gutters, storm sewers and storm water conveyance system, water supply and distribution facilities, sanitary sewer facilities, electric distribution facilities and street lights, and survey monumentation. 2. The Residential Development may be, at the option of the Developers, completed in two phases, provided, however, the Phase 1 Infill Agreement must be executed within one year from the date of the adoption of this Amended and Restated MOU and the Phase II Infill Agreement (as defined herein) must be executed within five (5) years from the date of the adoption of this Amended and Restated MOU. 3. Submit to the City Engineer for approval the final subdivision plans and stormwater management plan for the Residential Development in compliance with the Subdivision Ordinance. 4. The use and development of the Property shall be restricted to only single family, condominiums, and multi -family residential units, which covenant shall run with the land and shall be binding on all parties claiming under and through the Developers, unless cancelled, altered, or amended by a writing entered into by the Developers, 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. B. City agrees to the following: 1. In consideration of the commitments and agreement of the Developers set for above, the City agrees that upon the approval of each of the two final subdivision plats of the Residential Development and acceptance of all public improvements as defined in paragraph A (1) above, and simultaneous thereto, the City of Paducah agrees to approve and enter into a Residential Infill Development Agreement with the Developers in substantially the same form as attached hereto as Exhibit A (the "Infill Agreement") for each of the two phases of development. 2. The Infill Agreement shall evidence the City's agreement to reimburse Developers, for the actual and reasonable initial costs and expenses incurred by Developers to construct and install the public improvements within the Residential Development to be acquired and owned by the City up to an amount not to exceed the total amount of ad valorem real property taxes assessed and collected by the City over a ten (10) year period, commencing with the execution of the Infill Agreement, from the Residential Development constructed on the Property. For the purpose of this Agreement, the public improvements to be rd acquired and owned by the City shall include: streets, sidewalks, curbs and gutters, storm sewers and storm water conveyance system located within public right of way. If the Infill Agreement for Phase II of the Residential Development is not executed within 5 years of the date of adoption of this Amended and Restated MOU, then the City's obligation to enter into the Infill Agreement for Phase II shall automatically terminate and be of no further force and effect. 3. The City shall have no obligation whatsoever to reimburse Developers in excess of the total amount of ad valorem real property taxes actually collected and received by the City annually during each year of the ten (10) year period. Further, the City's obligation to reimburse Developers shall automatically terminate upon payment in full of all such eligible costs and expenses or at the end of the ten (10) year period, whichever occurs first. 4. The City shall construct, at its cost, Section 1 of the roadway improvement relating to the Residential Development in conjunction with the Developers' construction of Phase 1 of the Residential Development. Section 1 (Exhibit B) shall be defined as that portion of the intersection of County Park Road and the Subdivision's roadway depicted on the Phase 1 Subdivision Plat. Section 1 is located within the right of way of County Park Road. The City agrees to complete Section 1 in conjunction with the Developers" completion of Phase 1 and being within one year from the date of the adoption of this Amended and Restated MOU baring any delays associated with regulatory matters/permits. 5. In the event Developers commence construction of Phase II of the Residential Development in accordance with the terms and conditions of this Amended and Restated MOU, the City shall construct, at its cost, Section 3 of the roadway improvement relating to the Residential Development (Exhibit B) in conjunction with the Developers' construction of Phase II of the Residential Development. Section 3 shall be defined as that area located adjacent to Stuart Nelson Park Road and proceeding to the west to the limits of the Property. C. Miscellaneous Provisions. The following miscellaneous provisions shall apply: 1. Assignment. This Memorandum of Understanding shall be binding upon and shall insure to the benefit of the parties hereto, and their respective legal representatives, heirs, successors and permitted assigns. The Developers 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 relieve Developers from any obligations of this Agreement for which Developers shall remain fully bound to City. 2. Merger Clause. It is agreed and understood between the parties that this Memorandum of Understanding represents the entire and exclusive agreement between the parties, and that all prior representations, covenants, warranties, understandings and agreements are merged herein. This Memorandum of Understanding may only be modified in a writing executed by all parties hereto. 3. Construction. This Memorandum of Understanding shall be governed and construed under the laws of the Commonwealth of Kentucky. 4. Assurances. City and the Developers agree to execute such further documents and instruments as shall be necessary to fully carry out the terms of this Agreement. 5. Amendments. This Memorandum of Understanding may not be modified or amended unless by a writing signed by both parties hereto. 6. Execution and Delivery. This Memorandum of Understanding shall be of no force or effect unless and until it shall have been executed by both the City and the Developers and approved by the governing body of the City of Paducah. 7. Time. All times referred herein shall be strictly construed, as all of such times shall be deemed of the essence. WITNESS signatures of the parties as of the year and date first above written. DEVELOPERS: HIGDON DEVELOPMENT, INC. Phil Higdon, President Date: GREENWAY VILLAGE, LLC 0 Phil Higdon, Manager Date: CITY: CITY OF PADUCAH, KENTUCKY Lo Date: I William F. Paxton, Mayor EXHIBIT A Residential Infill Development Agreement THIS INFILL DEVELOPMENT AGREEMENT ( the "Infill Agreement") made and executed on this day of , 20_, 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 Higdon Development, Inc., and its affiliated company, Greenway Village, LLC, a Kentucky limited liability company (hereinafter referred to as "Developers"). WITNESSETH: WHEREAS, the Board of Commissioners adopted Ordinance # authorizing the approval of an Amended and Restated Memorandum of Understanding between Higdon Development, Inc., as Developers, and the City of Paducah, which Amended and Restated Memorandum of Understanding is dated 20_ (the "Amended and Restated MOU"); and WHEREAS, Developers are 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 (the "Final Plat"); and WHEREAS, Developers has completed all requirements in accordance with the City of Paducah Subdivision Ordinance and has obtained final subdivision approval for the Developers' development of said tract of property as a subdivision for residential purposes from the Planning Commission on and by Board of Commissioners on ,Ordinance # , which approval is evidenced by the Final Plat recorded in Plat Section , page # , in the McCracken County Court Clerk's office (the "Residential Development"); and WHEREAS, The Board of Commissioners for the City of Paducah finds: That an Infill Agreement with the Developers 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 an Infill Agreement will encourage development of single family, condominiums, andmulti-family housing on vacant, orphaned, or underutilized land located in the mature portions of Paducah where infrastructure and services are in place. That an Infill Agreement will encourage infill development that may have been underutilized or blighted, helping to catalyze revitalization. That an Infill 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 an Infill Agreement will help maintain growth through infill development, which encourages a healthy economy. That an Infill Agreement will encourage infill residential development, which will increase the population base of the City of Paducah, therefore increasing the possibilities of 7 becoming a designated urbanized area; and WHEREAS, the City desires to provide municipal services to benefit Developers' Residential Development, and the ultimate residents to be located therein, but requests Developers to construct, at Developers' cost, the public infrastructure and improvements which are necessary for the provision of such municipal services, including, without limitation, streets, gutters, and other public improvements depicted in the Final Plat (the "Municipal Facilities"), which upon completion and acceptance by the City will become the property of the City; and WHEREAS, for reason the Municipal Facilities have become the property of the City upon completion of construction and acceptance by the City, the City is agreeable to reimbursing Developers for the cost and expenses ($ ) incurred by Developers to construct and install such Municipal Facilities within the Residential 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 the Residential Development for a period of ten (10) years, commencing with the execution of the Infill Agreement, 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: Reimbursement to Developers for Costs and Expenses of Constructing the Municipal Facilities. In consideration of Developers' construction of the Municipal Facilities which are to become the property of the City, the City hereby agrees to reimburse Developers for the actual and reasonable initial costs and expenses incurred by Developers to construct and install 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 the Residential Development for a period of ten (10) years commencing with the execution of the Infill Agreement, 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 Developers in the construction of the Municipal Facilities which are constructed in accordance with the Final Plat, the subdivision plans and stormwater management plan approved by the City Engineer, and the Subdivision Ordinance shall be eligible for reimbursement. The determination of which costs and expenses are eligible and whether construction was made in accordance with the Final Plat, the subdivision plans and stormwater management plan approved by the City Engineer, and the Subdivision Ordinance shall be made by the City Engineer, in his reasonable discretion. B. Time of Request. The Developers shall only be entitled to make a request for reimbursement at that point in time when the Developers have 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. The initial Raeh-request made by the Developers shall be verified under oath and shall itemize the costs and expenses which were incurred by the Developers in the construction of the Municipal Facilities. Such itemization shall first describe the Municipal Facilities which were constructed, 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 Developers shall attach this expense report to the first request supporting documentation that verifies the costs and expenses incurred by the Developers in the construction of the Municipal Facilities. The Developers 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. M. 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 costs and expenses as described in the request. E. Upon approval of eligibility of the costs and expenses and the Municipal Facilities, 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 Developers 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 the Residential Development and actually collected and received by the City annually during each year of the ten (10) year period commencing with the execution of the Infill Agreement. The Finance Department shall make payment to the Developers in an amount equal to such taxes actually collected and received by the City annually during each year of the ten (10) year period, subject, however, to the following conditions: (1) The City shall have no obligation whatsoever to reimburse the Developers in excess of the sum total amount of the taxes actually collected and received by the City during the ten-year period. In the event such sum total amount exceeds the sum total of eligible costs and expenses, the City's obligation of reimbursement 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 ten (10) 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 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. 2. 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. 3. 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 9 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 jam'• 4. Miscellaneous Provisions. The following miscellaneous provisions shall apply: 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 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. The Infill Agreement and the MOU expresses the complete agreement of the parties and supersedes all prior written or oral agreements or understandings between the City and the Developers 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 and in the MOU. E. Amendments. The Infill 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. The Infill 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. The Infill Agreement shall be binding upon the parties hereto, their heirs, successors, and assigns. I. Effective Date of Agreement. The effective date of the Infill Agreement shall be the date that the mayor of the City of Paducah executes the Infill is Agreement. CITY OF PADUCAH, KENTUCKY By William Paxton, Mayor 10 Higdon Development, Inc. By_ Title GREENWAY VILLAGE, LLC By Title STATE OF KENTUCKY ) COUNTY OF McCRACKEN ) The foregoing instrument was acknowledged before me this , 20 , 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 , 20 , by (title) on behalf of Higdon Development Inc. My commission expires Notary Public, State at Large STATE OF KENTUCKY The foregoing instrument was acknowledged before me this 20_, by , Greenway Village, LLC. My commission expires 11 day of day of day of , _(title) on behalf of Notary Public, State at Large I�:� 810.318 See attachment. 12