HomeMy WebLinkAbout263-24 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 263-24
File Number: 2024-653
DEADHORSE MOUNTAIN ROAD (MASTER PLAN APPROVAL):
A RESOLUTION TO APPROVE AND ADOPT A MASTER PLAN FOR 220 ACRES ON DEADHORSE
MOUNTAIN ROAD
WHEREAS, on November 1, 2022, City Council approved Resolution 257-22 authorizing Mayor Jordan to sign a
subrecipient agreement with Watershed Conservation Resource Center (WCRC) to purchase 225 acres along the West
Fork of the White River and authorizing the Mayor to sign any other documents necessary to consummate the purchase
and provide for management of the land; and
WHEREAS, in February 2023, a Tenants in Common Agreement between the City, WCRC, and the Beaver Water
District was executed with several commitments and requirements, including the development of a master plan for the
property; and
WHEREAS, the master plan includes the restoration of natural resources, development of the property with structures
that support the mission of the WCRC, a mitigation bank and alignment and construction of public trails and other
recreational facilities.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves and adopts the Master Plan for
220 acres on Deadhorse Mountain Road, a copy of which is attached to this Resolution, and authorizes Mayor Jordan to
sign the plan.
PASSED and APPROVED on November 7, 2024
Attest:
MA
Lioneld Jordan, r Jack elton, SenepHt�,C ty Clerk
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Office of the City Clerk Treasurer
Kara Paxton — City Clerk Treasurer
Jackson Shelton — Senior Deputy City Clerk
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113 W. Mountain Street, Suite 308
Fayetteville, Arkansas 72701
Phone: 479.575.8323
cityclerk@fayetteville-ar.gov
Departmental Correspondence
To: Lioneld Jordan, Mayor
From: Kara Paxton, City Clerk Treasurer'��G
CC: City Attorney Kit Williams, Senior Assistant Blake Pennington, Chief of Staff Susan Norton &
Chief Financial Officer Paul Becker
Date: November 8, 2024
RE: City Clerk Treasurer Kara Paxton — Out of Office due to Medical Procedure
Mayor Lioneld Jordan,
Due to a medical procedure, I will be unavailable to sign documents or attend meetings starting
November 11th, 2024. 1 plan to be back in the office as of November 25th, 2024. Senior Deputy City
Clerk Treasurer Jackson Shelton or Deputy City Clerk — Codifier Courtney Spohn will notify you
should these dates change.
The recommended recovery time for my medical procedure (Spinal Cord Stimulator Implant) ranges
from 4 to 8 weeks. The surgeon stated that I must be off work for at least one week. The surgeon also
encouraged me to utilize telework options in the weeks following the initial surgery week. He also
stated that should I need to physically come to work, I need to park as close to the building as
possible, no lifting/carrying heavy or large objects, and no sudden twisting or turning.
In my absence, I authorize Senior Deputy City Clerk Treasurer Jackson Shelton to attest your (Mayor
Lioneld Jordan) signature. Should an issue arise that Mr. Shelton is not available to sign within a 24-
hour timeframe, I authorize Deputy City Clerk — Codifier Courtney Spohn to sign in our absence.
As the official custodian of the City's seal, I authorize Mr. Shelton and Ms. Spohn to use the seal for
official purposes only.
Please direct city staff to route all Alcohol Permits to Mr. Shelton for review and electronic signature.
Please notify the Accounting Department that check requests will be reviewed and signed by Ms.
Spohn before being emailed to the Accounting Department. Ms. Spohn will also be responsible for
approving purchase requests submitted November 11th — November 15th, 2024.
Mr. Shelton and Ms. Spohn will go above and beyond to ensure that our office continues to support
all our internal and external customers while I am out of office. Over the last 3 years Ms. Spohn has
continuously demonstrated her professionalism and advanced skillset in her positions. Mr. Shelton
has been with our office for almost 2 years now and has consistently impressed me by going above
and beyond in his work duties. I am confident that Mr. Shelton and Ms. Spohn will successfully
manage the office while I am out.
M/10
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF NOVEMBER 7, 2024
TO: Mayor Jordan and City Council
CITY COUNCIL MEMO
THRU: Susan Norton, Chief of Staff
FROM: Alison Jumper, Director of Parks, Natural Resources and Cultural Affairs
SUBJECT: Approval of a Master Plan
2024-653
RECOMMENDATION:
Resolution to approve a master plan for 220 acres on Deadhorse Mountain Road jointly owned by the City,
Watershed Conservation Resource Center and Beaver Water District.
BACKGROUND:
On November 1, 2022, the City Council approved Res. 257- 22, authorizing Mayor Jordan to sign a
subrecipient agreement with Watershed Conservation Resource Center (WCRC) to purchase 225 acres along
the West Fork of the White River. The resolution also authorized the Mayor to sign any other documents
necessary to consummate the land purchase as well as any other necessary agreements between the City,
WCRC, and Beaver Water District as the co -purchasers.
A Tenants in Common Agreement between The City, Watershed Conservation Resource Center and the
Beaver Water District was executed in February of 2023. This agreement included several commitments,
including developing a master plan for the property.
DISCUSSION:
WCRC has been diligently working to fulfill the agreement commitments including applying for and receiving
over $4M in EPA Climate Pollution Reduction Grant. They have also prepared a master plan for the property.
Pursuant to the Tenants in Common Agreement, the master plan includes the restoration of natural resources,
development of the property including structures that support the mission of the WCRC, a mitigation bank and
alignment and construction of public trails and other recreational facilities.
BUDGET/STAFF IMPACT:
None.
ATTACHMENTS: SRF (#3), River Commons Master Plan - Final 10.14.24 (#4), 257-22 RESOLUTION Tri-
Party Agreement (#5)
Mailing address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
== City of Fayetteville, Arkansas
y 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
- Legislation Text
File #: 2024-653
Approval of a Master Plan
A RESOLUTION TO APPROVE AND ADOPT A MASTER PLAN FOR 220 ACRES ON
DEADHORSE MOUNTAIN ROAD
WHEREAS, on November 1, 2022, City Council approved Resolution 257-22 authorizing Mayor
Jordan to sign a subrecipient agreement with Watershed Conservation Resource Center (WCRC) to
purchase 225 acres along the West Fork of the White River and authorizing the Mayor to sign any other
documents necessary to consummate the purchase and provide for management of the land; and
WHEREAS, in February 2023, a Tenants in Common Agreement between the City, WCRC, and the
Beaver Water District was executed with several commitments and requirements, including the
development of a master plan for the property; and
WHEREAS, the master plan includes the restoration of natural resources, development of the property
with structures that support the mission of the WCRC, a mitigation bank and alignment and construction
of public trails and other recreational facilities.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves and adopts the
Master Plan for 220 acres on Deadhorse Mountain Road, a copy of which is attached to this Resolution,
and authorizes Mayor Jordan to sign the plan.
Page 1
Alison Jumper
Submitted By
City of Fayetteville Staff Review Form
2024-653
Item ID
11/7/2024
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
11/15/2024 PARKS & RECREATION (520)
Submitted Date Division / Department
Action Recommendation:
Resolution to approve a master plan for 220 acres on Deadhorse Mountain Road jointly owned by the City,
Watershed Conservation Resource Center and Beaver Water District.
Budget Impact:
N/A N/A
Account Number Fund
N/A N/A
Project Number
Budgeted Item? No
Does item have a direct cost? No
Is a Budget Adjustment attached? No
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
Project Title
Total Amended Budget
$ -
Expenses (Actual+Encum)
$ -
Available Budget
Item Cost
$ -
Budget Adjustment
$ -
Remaining Budget
e-
V20221130
Previous Ordinance or Resolution # 257-22
Approval Date: 11/1/2022
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Pursuant to Section 3.3 of the Tenants In Common Agreement ("TIC Agreement) executed by the Watershed Conservation
Resource Center ("WCRC"), City of Fayetteville ("City"), and Beaver Water District ("BWD") on February 17, 2021 , the
following matters are addressed:
i) Restoration of the natural resources of the property (TIG Agreement Sections 3.3.1 and 5)
The WCRC has sought and secured funding to restore natural resources by working with a coalition of partners, led by Metroplan with the
NWA Regional Planning Commission and the City of Fort Smith. Metroplan was awarded the EPA Climate Pollution Reduction Grant funding
through the Inflation Reduction Act. As part of the grant application, the WCRC developed and submitted a project with the City and
Northwest Arkansas Land Trust (NWALT) to conduct restoration on the River Commons 220-acre property. Restoration includes prairie,
wetlands, and riparian areas. In addition, the project funding includes 1) construction of a shared -use paved trail through the property that
will be part of the planned St. Paul's Greenway (TIC Agreement Section 6); and 2) a conservation easement (TIC Agreement Section 3.5)
through NWALT. A total of $4.254 million was allocated to the River Commons and associated adjacent areas.
Stream restoration will be conducted as funding becomes available through the West Fork White River (WFWR) Watershed Plan (PL-566) or
other funding sources. The WCRC is working with the United Keetoowah Band of Indians in OK (UKB) to restore river canebrakes. The WCRC
has contracted with a local farmer to manage the pasture grasses and cut hay. The farmer is helping to remove invasive vegetation and
encourage native grass establishment.
The WCRC will continue to seek funding for restoration and long-term maintenance activities (TIC Agreement Section 4.4).
2) Development of the property (TIC Agreement Sections 3.3.2, 5, and 6) and other recreational facilities (TIC Agreement Section 3.3.5)
The WCRC continues to seek funding for developing public access amenities as a natural area for the local community and to create the River
Commons & Institute. The River Commons area encompasses the 220-acre property and 98-acre property across S Dead Horse Mountain
Road. A framework plan called the River Commons and Institute was developed by the University of Arkansas Community Design Center
(UACDC) and the WCRC with guidance from a steering committee that includes the City and several partners for the 98-acre property.
Amenities for the public may be developed along with structures supporting native plant propagation and community engagement in
accordance with the tenants in common agreement on the 220-acre property. The WCRC, with partners from the steering committee and
River Coalition, are applying for an EPA Community Change Grant to construct a training center and offices for the WCRC and potentially
others (River Institute). If funding is secured, the training center will also act as a resiliency hub for southeast Fayetteville. The best location
for this initiative is acreage outside of the 500-year flood plain on the 220-acre property.
Page 2 of 3
3) Creation of a mitigation bank (TIC Agreement Sections 3.3.3 and 3.4)
The 220-acre site includes the WFWR Mitigation Bank. The WFWR Mitigation Bank has been expanded to the 98-acre site. At this time,
there are no plans to expand mitigation sites on the 220-acre site.
4) Alignment and construction of public trails (TIC Agreement Sections 3.3.4 and 6)
The WCRC worked with the City to develop a preliminary shared -use paved trail alignment. The trail is funded through the EPA CPRG grant
and final alignment and construction will be completed under this grant. Secondary trails will be developed as needed for the site.
The Parties Agree to the Master Plan Presented in this Document, and the persons below attest that they have proper legal authority to sign
for the entity on whose behalf they are signing.
WATERSHED CONSERVATION RESOURCE CENTER CITY OF
By:--a"V11--1-4-
By:
SANDI J. FORMICA
Executive Director
Date: CC-+' ( -1, 20 2 I Date:
BEAVER WATER DISTRICT ATTEST:
By: ,6
M. LANE CRIDER By:
Chief Executive Officer
Date I October 17, 2024
ARKANSAS
ELD JORD#N f Mayor
ov 7, 2024
SHELTON, Senior Deputy City Clerk
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Page 3 of 3
TENANTS IN COMMON AGREEMENT
This TENANTS IN COMMON AGREEMENT ("Agreement") is entered between the Watershed
Conservation Resource Center, an Arkansas nonprofit corporation ("WCRC"), the City of Fayetteville, Arkansas,
a duly constituted municipality under the laws of the State of Arkansas (the "City"), Beaver Water District, a
public nonprofit Regional Water Distribution District duly constituted under the authority of A.C.A. § 14-116-
101 et seq. (`BWD"), hereinafter also referred to collectively as the "Parties" or individually as a "Party".
RECITALS
A. WCRC is a 501(c)(3) public charity whose purpose is to conserve and restore rivers, riparian and
wetland resources;
B. BWD's mission is to sustainably provide its customers with safe, economical drinking water. The
City is one of BWD's four wholesale drinking water customers. Beaver Lake is the source of raw water for BWD.
The West Fork of the White River ("WFWR") is a significant tributary of Beaver Lake;
C. WCRC is the subrecipient of American Rescue Plan Act ("ARPA") grant funds totaling
$1,445,400.00 (the "ARPA Funds") which were awarded by, and passed through, the City pursuant to Resolution
257-22 and that certain Subrecipient Award Agreement between the City and WCRC dated December 2, 2022
(the "Award Agreement") for the purchase of 223 acres, more or less, as more particularly described on Exhibit
A hereto (the "Property"), most of which lies in the floodplain of the WFWR and can provide significant
ecological services and green infrastructure for the benefit of BWD and the citizens of the City by reducing
nonpoint source pollution to Beaver Lake;
D. On April 25, 2022, BWD committed to contribute up to $800,000.00 toward WCRC's purchase
of the Property;
E. The Award Agreement provides that the Parties will take title to the Property as tenants in
common and they have entered into a contract to purchase the Property in such capacities; and
F. The Parties now wish to enter into this Agreement to better ensure compliance with the eligible
purpose for which the ARPA Funds were awarded by establishing the terms of the Parties' relationship as tenants
in common, restricting transfers of their ownership interests for permanent conservation of the Property, and
establishing limited permitted uses of the Property.
AGREEMENT
In consideration of the provisions contained herein, including the foregoing recitals, all of which are
incorporated herein as material terms of this Agreement, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, covenant and agree
as follows:
1. Nature of Relationship. The Parties intend and hereby declare that their relationship is that of co-
tenant of the Property, each as to an undivided interest therein. Except as co -tenants, no other relationship as
partners or joint venturers exists among them. The Parties shall have all of the rights and privileges of co -owners
of real estate, except as such rights and privileges are modified by the terms of this Agreement. Neither the
ownership of the Property by the Parties, nor any of the provisions of this Agreement, nor any acts of the Parties,
nor any other circumstances, shall be deemed to create a partnership, joint venture, or other business entity for
any purpose whatsoever. Each Party, in connection with the ownership of such undivided interest in the Property,
shall take reasonable steps in dealing with third parties to negate any inference that any such partnership, joint
venture, or other business entity exists, and all acts of each Party shall be consistent with such Party being a tenant -
in -common holding an undivided interest in the Property. In furtherance of the provisions of this Section, the
Parties shall not conduct business under a common name, execute any agreements identifying the Parties as
partners, shareholders, or members of a partnership, corporation, limited liability company or other business
entity, or otherwise hold themselves out as a partnership, corporation, limited liability company or other business
entity. No Party is authorized to act as agent for, to act on behalf of, or to do any act that will bind, any other
Party, or to incur any obligations with respect to the Property.
2. Income and Liabilities. Except as otherwise provided herein, each Party will be entitled to all
benefits and obligations of ownership of the Property. The Property shall not be used for any profit -making
purpose but any incidental income shall be reinvested in furtherance of WCRC's mission. Any obligation that
would require the City to expend any resources must be approved by the City in accordance with its financial and
purchasing regulations and applicable state law before the City shall be bound by such obligation. BWD shall
have no financial obligations except as set forth in section 3.2 below.
3. Tenants in Common's Obligations. The Parties will perform such acts as may be reasonably
necessary to carry out the terms and conditions of this Agreement, including, without limitation:
3.1 Documents. The execution of documents required in connection with the acquisition,
access easements, conservation easements, restoration, maintenance, improvement, or transfer of interests in the
Property and such additional documents as may be required under this Agreement or may be reasonably required
to achieve the intent of the Parties with respect to the Property.
3.2 Acquisition.
3.2.1 The City shall transfer the ARPA Funds, and BWD shall transfer $740,000.00 of
its contribution, to WACO Title Company (the "Title Company") to be held in escrow and disbursed at closing
of the Property.
3.2.2 The Title Company shall apply the ARPA Funds toward the purchase price of
the Property at closing and for no other purpose.
3.2.3 The Title Company shall apply the $740,000.00 contributed by BWD toward the
purchase price of the Property.
3.2.4 Prior to the closing date, BWD shall transfer the remaining $60,000.00 of its
contribution to WCRC to cover the costs associated with acquiring fee title to the Property, to include, without
limitation, the pursuit costs, cost of environmental site assessments, appraisals, surveys, and title policy premiums,
and any remaining BWD funds shall be used for preliminary Property management, restoration planning, and
ongoing Property management costs.
3.3 Master Plan. The Parties agree to develop a Master Plan for the Property (hereinafter the
"Plan") within two (2) years of acquisition of the Property. The Plan must be unanimously approved by the
Parties. The Master Plan should, at a minimum, address:
2
3.3.1 Restoration of the natural resources of the Property, including but not limited to
the streambanks and wetlands;
3.3.2 Development of the Property, including construction of any structures that
support the mission of WCRC;
3.3.3 Creation of a mitigation bank;
3.3.4 Alignment and construction of public trails; and
3.3.5 Other recreational facilities.
3.4 Mitigation Bank. The Parties agree that the Property, or portions of the Property, may be
used to establish a mitigation bank, if legally permissible.
3.5 Conservation Easement.
3.5.1 The Parties agree to work cooperatively and expeditiously to grant a conservation
easement to a qualified land trust covering all or most of the Property in order to conserve and protect the natural
resources and water quality benefits of the Property (the "Conservation Easement"). The Conservation Easement .
shall be recorded in the appropriate real property records within one (1) year of the Parties' adoption of the Plan
or, if pursuit of a mitigation bank is agreed upon in the Plan, within three (3) years of the Parties' adoption of the
Plan. The Conservation Easement will be in addition to and may incorporate the approximately 28.38 acres of
the Property that are already held by the Northwest Arkansas Land Trust ("NWALT") in a conservation easement
recorded in the real property records of Washington County on September 3, 2014.
3.5.2 Each Party may participate in discussions and negotiations with the land trust on
the terms of the Conservation Easement, but WCRC will be responsible for coordinating the negotiations and the
Parties' review of the drafts and final Conservation Easement and related documents.
3.5.3 One of the stated purposes in the Conservation Easement must be the protection
of the Property's watershed values.
3.5.4 The Conservation Easement shall also permit the construction, development, and
use of all structures, areas of non -permeable surfaces, and any other improvements authorized by this Agreement
or the Plan and which must not significantly impair or interfere with the Property's watershed or conservation
values.
3.5.5 Each Party will review and not unreasonably withhold its approval of the
Conservation Easement and will execute and deliver such approved Conservation Easement for recording in the
appropriate real property records.
3.6. Improvements. All improvements placed on the Property, whether by or on behalf of a
Party, must be consistent with, and not have a substantial adverse impact on, the natural condition, watershed
values, and water quality benefits of the Property, including as restored and enhanced. The use and construction
of non -permeable improvements not authorized by this Agreement or the Plan must be in compliance with the
Conservation Easement and must be unanimously approved by the Parties prior to commencement of any site
preparation or construction work. The Parties further acknowledge and. agree that the design and location of all
such improvements must not preclude or otherwise unduly interfere with the establishment of a mitigation bank
on the Property. Such improvements will be subject to approval by the applicable federal governmental authorities
with jurisdiction over any such mitigation bank.
4. WCRC Mana eme
4.1. At a minimum, WCRC shall maintain the Property in its current capacity as a functioning
floodplain.
4.2. WCRC shall bear the cost of any taxes and pursue available exemptions from property
taxes as a result of the Property being used exclusively for public charity.
4.3. WCRC shall maintain comprehensive commercial general liability insurance coverage
on the Property, which shall list BWD and the City as additionally insured.
4.4. WCRC will seek funding for and, to the extent funding is secured, will: (1) stabilize and
restore streambanks, wetlands, floodplains and other natural features, as needed, on the Property; (2) establish
horticultural areas for the production of native plant species to be used in restoration projects in northwest
Arkansas; and (3) develop infrastructure to support public spaces for hiking, birding, nonmotorized boat access,
and similarly low -impact uses.
4.5. WCRC will provide BWD and the City with a minimum of annual written reports
regarding WCRC's maintenance, restoration, development, and other activities on the Property. The reports will
provide an accounting of expenditures by WCRC and of grants or other monies received by WCRC and used for
improvements to the Property.
4.6. Any of the Parties' authorized agents shall have the right to enter and be on the Property
in furtherance of the permitted uses set out in this Agreement. Such right of entry shall include use of any
easements that provide access to the Property.
4.7. If the Property is used by WCRC to create wetland mitigation credits, the City and BWD
are entitled to discounted rates to purchase the credits.
5. WCRC Development.
5.1 Subject to adoption of the Plan as set forth in section 3.3 above and the approval
requirements of section 3.6 above, WCRC may be authorized to construct permanent structures to provide office
space for WCRC staff, community education and training areas, and interpretative spaces to engage the community
and educate the public on stream and riparian restoration and residential storm -water management, so long as: (a)
the impervious coverage of the structures does not exceed 20,000 square feet; (b) the structures are located on the
approximately 1.5 acres on the north end of the Property that are outside the floodway and floodplain; (c) the
structures do not impair or interfere with the watershed values or water quality benefits of the Property; and (d) the
structures are not in conflict with ARPA regulations (the "WCRC Development Reserve"). WCRC shall not be
entitled to any monetary contribution or reimbursement from the Parties of costs associated with constructing or
maintaining the improvements permitted by this subsection.
5.1.1. All access drives must be located, designed, and constructed with extreme care
for the environment and should utilize existing road beds and pervious materials where possible; and
5.1.2. Subject to the terms of any Conservation Easement, the City and BWD may grant
4
WCRC a 99-year ground lease over, or convey fee title to, the WCRC Development Reserve, as such property is
described by a licensed surveyor, and at such time as the WCRC improvements have been designed but prior to
commencement of construction, pursuant to the mutually agreeable terms of a lease agreement or deed that
includes all necessary and beneficial easements.
5.2. Additionally, WCRC shall have the right, but no obligation to construct the following
low -impact improvements on the Property, so long as the improvements do not impair or interfere with the
watershed values or water quality benefits of the Property. WCRC shall not be entitled to any monetary
contribution or reimbursement from the Parties for the costs associated with constructing or maintaining the
improvements permitted by this subsection. Such improvements include, but are not limited to:
5.2.1. Constructing structures to store equipment, including but not limited to stream
restoration equipment, horticultural equipment, and other equipment and implements needed to maintain
improvements on the Property so long as the impervious coverage of the structures does not exceed 10,000 square
feet and the structures are located outside the floodway;
5.2.2. Constructing greenhouses and hoop houses to grow native plants so long as the
impervious coverage of the structures does not exceed 20,000 square feet and the structures are located outside
the floodway;
5.2.3. Constructing gravel roads and firebreaks for ecological restoration and
maintenance;
5.2.4. Growing native plants, native plant sod, and other needed plant material for
restoration projects;
5.2.5. Erecting signs reasonably necessary to regulate access to, and use of, the
Property;
5.2.6. Constructing primitive walking trails covered, if at all, by wood chips, gravel, or
other highly porous surface and not more than four feet (4') in width, together with steps, railings,or footbridges.
Trails must largely blend into natural surroundings and be located in a manner to control soil erosion, avoid
damage to fragile plant communities, and reduce the fragmentation of wildlife habitat;
5.2.7. Constructing habitat enhancement devices, such as birdhouses and bat houses;
5.2.8. Constructing blinds for nature study;
5.2.9. Contracting for and permitting construction of utility improvements servicing
permitted uses of the Property and serving the improvements permitted within the WCRC Development Reserve;
and
5.2.10. Constructing one (1) access point for nonmotorized boats.
6. City Development.
6.1. The City may, subject to adoption of the Plan as set forth in section 3.3 above and the
approval requirements of section 3.6 above, construct the following improvements on the Property, so long as
they are: (a) in compliance with City streamside protection and floodplain ordinances; (b) the cumulative
impervious coverage of such improvements does not exceed four (4) acres; and (c) such improvements do not
impair or interfere with the watershed values or water quality benefits of the Property. The City shall not be
entitled to any monetary contribution or reimbursement from the Parties for costs associated with constructing or
maintaining the improvements permitted by this subsection. Such improvements are limited to:
6.1.1. Construction and maintenance of a hard surface trail, including maintenance
areas along both sides of the trail, that complies with the City's trail specifications, generally following the
West Fork of the White River alignment. The City will utilize low -impact construction methods or permeable
trail surfaces in sensitive areas of the Property.
6.1.2. All access drives must be located, designed, and constructed with extreme care
for the environment and should utilize existing road beds and pervious materials where possible;
6.2. The City will support and financially assist with the development of trail access
infrastructure and no more than one half (1/2) acre of pervious parking areas for public access.
6.3. . Until such time as the City has completed construction of the permitted trails, the
Property shall remain closed to the general public.
Disposition of Interest.
7.1. Except for the Permitted Transfers set forth in this section, no Party may Transfer its
interest in the Property without the unanimous written consent of the other Parties in their sole discretion. Any
Transfer in violation of this Agreement shall be void ab initio. "Transfer" shall mean directly or indirectly, sell,
assign, transfer, convey, pledge, mortgage, encumber, or hypothecate an interest in the Property or any portion
thereof, the result of which would be to directly or indirectly divest the Party of any portion of its title to the
Property, voluntarily or involuntarily.
7.2. Notwithstanding the foregoing, Transfer shall not include a "Permitted Transfer." For
purposes of this Contract, "Permitted Transfer" means:
7.2.1. Transfer by a Party of its interest in the Property in equal shares to the
remaining Parties. Transfer shall be on an "as is, where is" basis, by special warranty deed, and subject to all
easements, rights -of -way, covenants, reservations, and restrictions thereon of record. The Transfer shall be for
no additional consideration. Upon execution of an assignment and assumption agreement among the assuming
parties and recordation of the special warranty deed, the transferor shall be released from any further obligations
and responsibilities under this Agreement; or
7.2.2. Transfer by a Party of its interest in the Property to a qualified land trust or
a 501(c)(3) nonprofit organization whose primary purposes include land and stream restoration and conservation
or watershed protection. Any such Transfer, however, shall be subject to the prior written consent of the other
Parties. The Transfer shall be made on an "as is, where is" basis, made by special warranty deed and shall be
subject to all easements, rights -of -way, covenants, reservations and restrictions thereon of record. As a condition
of any such Transfer, the qualified land trust or 501(c)(3) nonprofit organization shall assume in writing all of the
transferor's remaining obligations and responsibilities under this Agreement. Upon execution of an assignment
and assumption agreement and recordation of the special warranty deed, the transferor shall be released from any
further obligations and responsibilities under this Agreement.
Partition and Accounting. To the maximum extent allowed by Arkansas law, the Parties waive
all rights as tenants in common to partition all or any portion of the Property and to demand an accounting between
them as to the Property. This restraint on alienation shall commence on the date of acquisition of fee title to the
Property by the Parties and shall remain in effect as long as the Conservation Easement remains in place.
9. Right of Survivorship. The Parties, intending to be bound as joint tenants with right of
survivorship should a Party dissolve, otherwise cease to exist, or become insolvent, agree that such Party's interest
in the Property shall automatically pass to the remaining Party or Parties equally, subject to any applicable state
or federal laws and regulations governing dissolution and insolvency. The dissolving Party shall deliver an
executed quitclaim deed to the remaining Party or Parties for purposes of conveying their undivided interest in
the Property and evidencing compliance with this provision as a matter of public record.
10. FOIA. Any records furnished by the City under this instrument are subject to the Freedom of
Information Act, A.C.A. § 25-19-101 et seq.
11. Miscellaneous.
11.1. Mutuali . ; Reciprocity; Runs with the Land. All provisions, conditions, covenants,
restrictions, obligations and agreements contained herein are made for the direct, mutual, and reciprocal benefit
of each and every part of the Property; will be binding upon and will inure to the benefit of each Party and its
respective successors, assigns, devisees, representatives, lessees and all other persons acquiring any undivided
interest in the Property or any portion thereof whether by operation of law or any manner whatsoever (collectively,
"Successors"); will create mutual, equitable servitudes and burdens upon the undivided interest in the Property of
each Party in favor of the undivided interest of every other Party; will create reciprocal rights and obligations
between the Parties, their undivided interests in the Property, and their Successors; and will, as to each Party and
their Successors operate as covenants running with the land, for the benefit of the other Tenants in Common
pursuant to applicable law. It is expressly agreed that each covenant contained herein (i) is for the benefit of and
is a burden upon the undivided interests in the Property, (ii) runs with the undivided interests in the Property, and
(iii) benefits and is binding upon each Successor owner during its ownership of any undivided interest in the
Property, and each owner having any interest therein derived in any manner through any tenant in common or
Successor. Every person who now or hereafter owns or acquires any right, title or interest in or to any portion of
the Property is and will be conclusively deemed to have consented and agreed to every restriction, provision,
covenant, right and limitation contained herein, whether or not such person expressly assumes such obligations
or whether or not any reference to this Agreement are contained in the instrument conveying such interest in the
Property to such person. The Parties agree that, subject to the restrictions on transfer contained herein, any
Successor will become a party to this Agreement upon acquisition of an undivided interest in the Property as if
such person was a tenant in common initially executing this Agreement.
11.2. Term. The term of this Agreement will begin effective as of the date of the last signature
below and will terminate at such time as the Parties or their successors -in -interest or assigns no longer own the
Property as tenants in common.
11.3. Memorandum of Agreement. The Parties agree that this Agreement will not be placed of
record in the land records where the Property is located, or in any other place. The Parties will, however, execute
a memorandum of agreement that will be recorded in the land records where the Property is located.
11.4. Further Assurances. The Parties agree that from time to time hereafter, upon request, each
of them will execute, acknowledge and deliver such other reasonable documents and instruments, and take such
further reasonable action, as may be reasonably necessary to carry out the intent of this Agreement.
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11.5. Binding Effect and Benefit. All provisions of this Agreement will inure to the benefit of
and will be binding upon the successors -in -interest, assigns, and legal representatives of the Parties.
11.6. Modification. No modification, waiver, amendment, discharge or change of this
Agreement will be valid unless the same is in writing and signed by all Parties or their successors in interest.
11.7. Notices.
City of Fayetteville, Arkansas
ATTN: Mayor's Office
113 W. Mountain Street
Fayetteville, Arkansas 72701
Phone: (479) 575-8330
mayor@fayetteville-ar.gov
Watershed Conservation Resource Center
ATTN: Sandi Formica, Executive Director
380 West Rock Street
Fayetteville, Arkansas 72701
Phone: (501) 352-5252
formica@watershedconservation.org
Beaver Water District
ATTN: M. Lane Crider, Chief Executive Officer
301 N. Primrose Road
Lowell, Arkansas 72745
(479) 756-3651
lcrider@bwdh2o.org
11.8. Waivers. No act of any Party will be construed to be a waiver of any provision of this
Agreement, unless such waiver is in writing and signed by the Party affected. Any Party hereto may specifically
waive any breach of this Agreement by any other Party, but no such waiver will constitute a continuing waiver of
similar or other breaches.
11.9. Governing Law. This Agreement will be subject to and governed by the laws of the State
of Arkansas, without regard to conflict of law principles.
11.10. Headings and Captions. Subject headings and captions are included for convenience
purposes only and will not affect the interpretation of this Agreement.
11.11. Incorporation by Reference. All exhibits and documents referred to in this Agreement
will be deemed incorporated herein by any reference thereto as if fully set out.
11.12. Severability. If any portion of this Agreement is illegal, null, void, or against public
policy, for any reason, or will be held by any court of competent jurisdiction to be illegal, null, void, or against
public policy, the remaining portions of this Agreement will not be affected thereby and will remain in full force
and effect to the fullest extent permissible by applicable law.
11.13. Rights and Remedies Cumulative. The rights and remedies expressed herein are
cumulative and not exclusive of any rights and remedies otherwise available.
11.14. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations,
negotiations and understandings of the Parties, oral or written, are hereby superseded and merged herein.
11.15. Attorneys' Fees. If any action or proceeding is instituted between all or any of the Parties
arising from or related to or with this Agreement, the Party(ies) prevailing in such action or arbitration will be
entitled to recover from the other Party(ies) all of its (or their) costs of action or arbitration, including, without
limitation, reasonable attorneys' fees and costs as fixed by the court or arbitrator therein.
11.16. Authority. Each individual signing this Agreement in a representative capacity
acknowledges and represents that he/she/it is duly authorized to execute this Agreement in such capacity in the
name of, and on behalf of, the designated corporation, partnership, trust or other entity.
11.17. Legal_ Representation of the Parties. The Parties represent that prior to the execution of
this Agreement they have had the opportunity to review this Agreement, as well as the exhibits, and consult with
and receive the advice of qualified legal counsel on the ramifications and effects of this Agreement. Any rule of
construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party
will not apply to any construction or, interpretation hereof.
11.18. OverridingIntent. ntent. The provisions of this Agreement are intended to comply with the U.S.
Department of the Treasury's Final Rule for Coronavirus State and Local Fiscal Recovery Funds, the
implementing regulations, including those governing disposition of property acquired using ARPA Funds, and
this Agreement will be applied and construed in a manner consistent with this intent and the Parties' desire to
permanently conserve the Property for the benefit of the public and the protection of water quality in the Beaver
Lake Watershed.
[Signature Pages Follow.]
WHEREFORE, IN AGREEMENT WITH ALL TERMS AND CONDITIONS WITHIN THIS
AGREEMENT, the persons below attest that they have proper legal authority to sign for the entity on whose behalf
they are signing.
WATERSHED CONSERVATION
RESOURCE CENTER
By:
SANDI J. FO ICA
Executive Director
Date: 2 — i & — 20 23
BEAVER Ny4LTER DISTRICT
By:
M. LANE CRIDER
Chief Executive Officer
Date:
CITY OF F,
Date: 1117/1 2-3
ATTEST:
By:
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