BILL NO

BILL NO. 3783 ORDINANCE NO. ____________

AN ORDINANCE APPROVING A REAL ESTATE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF WEST PLAINS AND PHYSICIANS’ ACUMEN ENTERPRISES, LLC AND AUTHORIZING THE MAYOR TO ENTER INTO THE AGREEMENT.

WHEREAS, Physicians’ Acumen Enterprises has a development project for which city utility service is essential; and

WHEREAS, Physicians’ Acumen Enterprises has petitioned the Planning Commission and City Council for annexation; and

WHEREAS, it is to the mutual benefit of the parties hereto to enter into the agreement.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST PLAINS, MISSOURI, AS FOLLOWS:

Section 1. The attached Real Estate Development Agreement between Physicians’ Acumen and the City of West Plains is approved (EXHIBIT A).

Section 2. Upon approval of this ordinance, the Real Estate Development Agreement (EXHIBIT A) between Physicians’ Acumen and the City of West Plains shall be executed by the Mayor of the City and attested by the City Clerk.

Section 3. This Ordinance shall be in full force and effect from and after its passage and approval.

THIS ORDINANCE SHALL BE EFFECTIVE IMMEDIATELY UPON ITS PASSAGE AND APPROVAL.

PASSED AND APPROVED THIS _____ DAY OF ________________ 2002.

CITY OF WEST PLAINS, MISSOURI

(CITY SEAL) _________________________________

JOE PAUL (J.P.) EVANS, MAYOR

Attest:

____________________________

CONNIE SHELTON, CITY CLERK

REAL ESTATE DEVELOPMENT AGREEMENT

THIS AGREEMENT is made and entered into this ___ day of _______________, 2002, between Physicians' Acumen Enterprises, LLC, hereinafter referred to as "DEVELOPER" and the City of West Plains, Missouri, hereinafter referred to as "CITY."

W i t n e s s e t h :

R e c i t a l s :

The parties recite and declare:

A. DEVELOPER desires to develop a parcel of property which is contiguous to, but not within, the city limits of West Plains, Missouri.

B. DEVELOPER desires to develop this property within the City of West Plains, Missouri.

C. DEVELOPER desires to utilize all city utilities.

D. DEVELOPER desires to annex the parcel of property into the City of West Plains, Missouri with the zoning classification of General Commercial District (C-2), to be changed to C-3 when the new classification is adopted.

E. CITY desires that DEVELOPER utilize the parcel of property and annex the property into the City of West Plains, Missouri, in accordance with CITY'S Comprehensive Zoning Plan which provides that the parcel of property shall be zoned as General Commercial District (C-2), to be changed to C-3 when the new classification is adopted.

F. DEVELOPER has concerns over CITY'S ability to annex the property and CITY'S ability to provide utility services to the parcel of property.

G. CITY desires to end DEVELOPER'S concerns over access to city utilities to encourage DEVELOPER'S utilization and annexation of the parcel of property.

In consideration of the mutual promises set forth in this Agreement, it is agreed by and between DEVELOPER and CITY.

1. Recitals. The above recitals are true and incorporated herein.

2. Identification of Parcel of Property. The parcel of property which is the subject of this Agreement, is identified on the attached Exhibit A.

3. Ownership. DEVELOPER represents and warrants to CITY that it possesses the underlying fee to the real property described on attached Exhibit A and it has sole authority to enter into this Agreement.

4. Petition for Annexation. DEVELOPER shall and does hereby irrevocably petition the City of West Plains, Missouri for annexation of the parcel of property and DEVELOPER waives all objections to said annexation. A copy of DEVELOPER'S petition for annexation is attached hereto as Exhibit B.

5. Provision of City Services. CITY shall, within 120 days, furnish the parcel of property with city utilities, which includes water, sewer, and if permitted, electricity. Costs incurred by CITY for extending utilities shall be paid by DEVELOPER. City services shall be provided regardless of the success or failure of DEVELOPER'S petition for annexation.

6. Zoning and Building Code. DEVELOPER shall develop the parcel in accordance with all city ordinances, building codes, and zoning requirements as applicable to zoning classification General Commercial District (C-2), to be changed to C-3 when the new classification is adopted. CITY agrees that upon annexation, the parcel of property shall be given and retain the classification of General Commercial District (C-2), to be changed to C-3 when the new classification is adopted.

7. Law Governing. This Agreement will be governed by the laws of the State of Missouri.

8. Waiver or Modification of Terms. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by both parties hereto.

9. Notice. Any notices required under this Agreement shall be in writing and shall be deemed to have been duly served if delivered in person to the party for whom it is intended, or if delivered at or sent by registered or certified mail to the business address of the person for whom it is intended, as specified in this Agreement.

10. Parties Bound. This Agreement shall inure to the benefit of and be binding upon the heirs, Personal Representatives, successors and assigns of the parties to this Agreement.

11. Entire Agreement. This Agreement constitutes the entire Agreement between the parties.

12. Attorneys' Fees. As this Agreement is not subject to binding arbitration, in the event litigation ensues over any aspect of this Agreement, the prevailing party shall be awarded its reasonable attorneys' fees, costs, and any and all other expenses incurred during the court action.

13. Survivability. All terms contained herein, which by their terms are to be performed or observed after the termination of this Agreement, shall remain in full force and effect and survive the termination of this Agreement.

14. Covenant Upon Land. All terms contained herein shall be construed as covenants running with the land and an original, signed copy of this Agreement shall be filed with the Howell County, Missouri Recorder of Deeds.

IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.