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HomeMy WebLinkAbout2013-03-04 - Agendas - FinalParks & Recreation Staff Connie Edmonston, Director Chase Gipson, Recreation Superintendent Byron Humphry, Maintenance Superintendent Alison Jumper, Park Planning Superintendent Melanie Thomas, Senior Secretary aye?ttvt1e Parks & Recreation Advisory Board Steve Meldrum - Chair Terry Lawson Jonathan Leonard Chuck Maxwell Phillip McKnight Phillip Watson -Vice Chair John M. Paul David Proffitt Angie Sass Parks and Recreation Advisory Board Meeting March 4, 2013 at 5:30 p.m. City Hall, Room 111 113 West Mountain Street Fayetteville, AR AGENDA: 1. Presentation of AR State Soccer Association's Volunteer of the Year to Dr. Jim Cherry: Chase Gipson. 2. Approval of February 4, 2013 PRAB Meeting Minutes: PRAB Motion: 3. Tabled from February 4th meeting - 2012 Annual Parks and Recreation Department Report: Connie Edmonston, Parks and Recreation Director According to Article II, Chapter 33.018 (B) in the Fayetteville Code of Ordinances, Parks and Recreation Advisory Board is to prepare an annual report to City Council. Once the annual report is approved by PRAB, this document will be forwarded to the City Council. Park Staff Recommendation: To approve the 2012 Annual Report to be presented to City Council. PRAB Motion: 4. Eagle Scouts' Project Proposal: Clayton Bell In coordination with Parks staff and the Ozark Off -Road Cyclist, a bridge and boardwalk project on the nature trail at Lake Fayetteville. 5. Rugby Presentation 6. Spiral Wetland Project Proposal: Robert Ginsberg 7. Botanical Garden of the Ozarks Grievance Request: The Botanical Garden of the Ozarks (BGSO) has filed a grievance concerning the construction of the soft trail system on the south side of Lake Fayetteville that is within BGSO's non -fee leased area. See attachment. According to the lease agreement between BGSO and the City of Fayetteville, Section 13.0 — Resolution of Conflict — March 4, 2013 PRAB Agenda 1 establishes a committee consisting of 4 members: 1 appointed by the City, 2 appointed by BGSO and 1 appointed by PRAB to resolve the difference. "If no resolution is reached within a reasonable period, then this committee shall refer the matter to the City Council, whose decision shall be binding to both parties." See Mayor Jordan's response letter. Park Staff Recommendation: Staff recommends for PRAB to appoint Byron Humphry to serve on this committee. Byron currently serves as the Parks and Recreation Department Staff representative on the BGSO Board of Directors. 8. Other Business: 9. Adjournment Upcoming Events and City Council Items: Attachments: Agenda Items listed below: 1. February 4, 2013 PRAB Meeting Minutes 2. BGSO Grievance Letter 3. BGSO Lease Agreement 4. Mayor Jordan's Response Letter 5. Spiral Wetland Project Proposal Reports: HMR Monthly Report March 4, 2013 PRAB Agenda 2 ty3le lt%A H'•M1'� FAYETTEVILLE PARKS AND RECREATION ADVISORY BOARD Minutes for February 4, 2013 Opening: The regular meeting of the Parks and Recreation Advisory Board was called to order by Phillip Watson at 5:40 p.m. in Room 111 at the City Administration Building at 113 West Mountain Street in Fayetteville, Arkansas. Present: Parks and Recreation Advisory Board members Maxwell, Paul, Lawson, Watson, and Proffitt were in attendance. McKnight and Leonard came in later. Meldrum and Sass were absent. Parks and Recreation staff members in attendance were Edmonston, Humphry, Jumper, Gipson, Mihalevich, and Thomas. AGENDA: 1. Approval of January 7, 2013 PRAB Meeting Minutes: PRAB Motion: Proffitt motioned to accept the minutes as written, and Paul seconded it. Motion passed 5-0-0 by voice vote. 2. Park Land Dedication: Superintendent Development Name: Engineer: Owner: Location: Park Quadrant Units: Total Acres: Land Dedication Requirement: Money in Lieu Requirement Alison Jumper, Park Planning 1 New Horizons Bates and Associates Jim Knight Between Rupple and Salem roads, north of Mt. Comfort NW 15 Phase one, 56 Phase two Approx. 18 acres .36 Phase one, 1.34 Phase 2 $13, 800 Phase one, $51,520 Phase two Existing Parks: Developer's Request: Staff Recommendation: Estimated Annual Maintenance: Justification: Salem Park, Gary Hampton Softball Complex, Clabber Creek Trail Money in lieu Money in lieu N/A The existing parks and trail in the area will meet the recreational needs of this development. Jumper went over the information about the development. She also said that Eric Heller was the representative in attendance to answer any questions. Watson asked what parks were in the area. Jumper replied that the parks were Salem Park, Gary Hampton Softball Fields, and Clabber Creek. Maxwell wanted to know what the amenities were at Salem Park. Jumper said there was a basketball court and a playground. Watson asked if these units were for starter families. Heller said that yes, they were. Paul wanted to know when the construction would begin. Heller replied that it would be about four months from now. PRAB Motion: Paul motioned to accept the money in lieu of $13,800 for Phase One and $$51,520 for Phase Two. McKnight seconded it. Motion passed 6-0-0 by voice vote. 3. Mahler Land Donation: Matt Mihalevich, Trails Coordinator Approximately 1.65 acres of land are being offered as a land donation for the Cato Springs Branch trail (see attached maps). Staff Recommendation. Staff recommends accepting the donation pending results of a site inventory and assessment to verify the absence of hazards or hazards materials. 2 Mihalevich said that Alex and Lori Mahler, who were present at the meeting, own a piece of land by the creek on Cato Springs Road. They want to donate the land for a trail and trail head. It is in a floodway. He said the area is in the original FATT plan. Watson asked if Parks thinks hazardous material will be found. Mahler said there is some rock and concrete, but no hazardous material. He added that there is a house in bankruptcy in the area, and it would be nice to include it in the donation. He said last time the area flooded, water was rushing through the house. Paul wanted to know how often the area flooded. Mahler said that since he has owned it, it has flooded at least five times in 28 years. He added that he would like to name the trailhead after his wife. Watson asked if houses are on the land to be donated. Mahler said no. Watson replied that he just wanted to make sure. Paul asked Byron if he was ok with this donation. Humphry said yes. He added that native grasses would be planted on it. Mahler said the area would need to be blocked so no one can dump trash. Edmonston said there is a park naming policy. The request has to go before PRAB, and then to the City Council. A form needs to be filled out and it can be presented to PRAB. Mahler said he would come to the March board. Paul wanted to know the acreage of the land. Mihalevich said it was 1.65 acres. Paul said he understood the options were to pass it now, and then come back for the naming, and give it a month for public input, and then it goes to Council. 3 PRAB Motion: Paul motioned to accept the land donation pending results of the site assessment to verify the absence of hazardous material. Lawson seconded it. Motion passed 6-0-0 by voice vote. 4. Mt Kessler Greenway: Frank Sharp Discussion will continue about Mt Kessler Greenway with Frank Sharp present to answer questions. Sharp brought a large map with contour lines for everyone. He commented he had someone come look at some trees on the property, and discovered they were ancient chinquapin trees that were approximately 300 years old. He said the age was determined from a sample from a fallen tree. Sharp also gave everyone a letter with sample pages from his report. The area is being used as an outdoor classroom and recreation. Maxwell said that the Lake Fayetteville Trail is the most used trail in NWA. Sharp said that all the landowners in the area of Mt Kessler are happy to allow people to hike and enjoy the area. He said he would like to help Fayetteville have a 700 acre park rather than just a 200 acre area. He asked that everyone please read the information for the next meeting. He said he wasn't expecting a decision tonight. He invited everyone to come out and see the area. Paul wanted to know why the City doesn't just buy it. He wanted to know what the deterrent was. McKnight asked how much the property cost. Sharp said parts of the land are really rough. In 2007 the land appraised at $15,000 an acre. He said it's now worth 3 to 5 thousand an acre. Paul said it seems that great lengths are being taken to go through the U of A and the City for this property. Edmonston said it was probably money that is keeping the City from buying it. She said that there is a very tight budget. Sharp said the foundation needs to be laid. He said if the City wants to buy it, go for it. 4 Paul said that the revenue generated through Regional Park could help pay off bonds. He added that an amphitheatre could be built. Maxwell asked if an amphitheatre was planned. Edmonston said yes. Jumper said it would be larger than the one at Gulley. Someone asked what a large crowd would be at Gulley Park. Gipson said 2,500 to 3,000 would be a big turnout. Paul said he was concerned about how many voices are involved with this property. He wanted to know why we would want anyone else tell us what to do with the land. Sharp said he would love the City to buy it. He said he was going on an assumption that money will have to be raised since it is so tight right now. PRAB Motion: No motion was made. Discussion will continue at the next meeting. 5. Botanical Garden Society of the Ozarks Report: David Proffit, PRAB/Byron Humphry, Park Maintenance Superintendent Humphry said the Botanical Garden is looking to rework the contract with the City. A draft is being worked up, and it will be brought to PRAB and the City Council for approval. The Botanical Gardens have land leased up to Veterans Park, and want to give back some of the property that they can't do anything with. Parks wants to work with the OORC and Progressive Trails to enhance the nature trail on. The Botanical Gardens want to develop the Master Plan for the user fee areas. That planning is in the early stages and will hopefully come before PRAB in a couple of months. Watson asked if the Farmer's Market was done. Humphry said yes, it's being tried on a trial basis. Watson asked if any problems had developed. Humphry said not to his knowledge. There were no problems from the Parks perspective. 5 Watson wanted to know if the Botanical Gardens had any issues. He said he knows that the Farmer's Market traffic was using the BG restrooms, which could possibly require more staff to maintain. Humphry said they had initial conflicts such as parking, but it got resolved. From the Parks end, it's okay. 6. 2012 Annual Parks and Recreation Department Report: Connie Edmonston, Parks and Recreation Director According to Article II, Chapter 33.018 (B) in the Fayetteville Code of Ordinances, Parks and Recreation Advisory Board is to prepare an annual report to City Council. Once the annual report is approved by PRAB, this document will be forwarded to the City Council. PRAB Staff Recommendation: To approve the 2012 Annual Report to be presented to City Council. Edmonston said that according to City Ordinance, PRAB has to approve the Parks annual report. Watson asked if the report was in the notebook given to everyone at orientation. He said he had not looked at it. Paul said on page 36 there were negatives. Edmonston said that the City captures it in that way. Proffitt suggested that it be tabled until next month. PRAB Motion: No vote was taken. The report will be discussed next month. 7. Other Business: Paul asked about the trail route that may have hazardous materials. Edmonston said they just got to look at it on Wednesday. Paul wanted to know if the entire corridor would be looked at. Jumper said no, just that piece of land. Edmonston commented that even though there are piles of debris, they may not contain any hazards. 6 Paul wanted to know if the whole corridor would be examined to make sure it would work out. Watson said they will do the best they can. McKnight said the City will probably get the other property. Edmonston commented that you have to start somewhere. Maxwell asked if anything has been done to see if any problem will come up. Jumper said no, the land is privately owned. Paul asked if the City had ever gotten any land they couldn't use. Lawson answered with "Regional Park". Edmonston said that caution needs to be used. Maxwell said, for trails, there are cheaper materials that can be used. If the dollar amount is cut down, more can be done. Paul said the City should know if it's hazardous before accepting it. He asked if the land could be rejected. Edmonston replied that once the land is deeded to us, it's ours. Humphry commented that the land has always been residential, not commercial. Lawson added that lots of the area is creek area, and unlikely to have hazardous materials. Edmonston said PRAB can take a trip to the area. Watson said he wouldn't know what to look for. He said Staff can look at it. Edmonston announced that Brandon Shrader began work today as the new Adult Softball programmer. 8. Adjournment Meeting was adjourned at 6:35 pm. 7 Minutes taken by Melanie Thomas 8 Page 1 of I Connie Edmonston - BGSO grievance appeal From: To: Date: Subject: Attachments: Walt Filers <walteilers@me.com> <ljordan@ci.fayetteville.ar.us>, Connie Edmonston <cedmonston@ci.fayetteville.ar.us> 2/20/2013 2:28 PM BGSO grievance appeal Mayor Jordan and Connie Edmonston.docx Lioneld and Connie: The attached grievance statement and proposed resolutions was delivered to Don Marr when he visited the Garden on Tuesday, February 19. I did want to assument that handing the form to him constituted filing it with the Mayor and Director of Parks and Recreation. Please accept this grievance and help expedite the formation of the committee and getting the resolution on the Council agenda. Thank you for your attention to this matter. W et E:Cw, Chair, BGSO board Www.bgozarks.org file://C:\Documents and Settings\cedmonston\Local Settings \ Temp \XPgrpwise\5124DD84... 2/20/2013 Mayor Jordan and Connie Edmonston: I, Walt Eilers, an avid trail user and sponsor, walked Lake Fayetteville Sunday morning, February 17. I walked both the hard and soft surface sections of the trail. I found notices posted at the dam entrance and at both trail entrances that the soft trail is closed from Veterans Park to the Botanical Garden for repair. Those signs were not in place last Saturday, February 9, when I previously walked the same trail. To my surprise, I observed extensive construction work (roughly 1.5 miles long) beginning at Veterans Park and continuing roughly half way through the BGSO leasehold toward the Garden. The BGSO has been a supportive, engaged and good neighbor. In 2009, we acquiesced and gave permission for the City to construct the Lake Fayetteville Trail hard surface extension through our leasehold. We allow trail users access to our rest room facilities. We have exceeded the lease provisions in offering free admittance to low income, families in crisis, seniors and school children. We felt that we had open lines of communication and had built a significant level of trust with the administration by raising over $5 million to build an amenity that last year attracted 40,000 paid visitors, 10,000 students, 8,000 attending Garden concerts and events and contributed $3.1 million in economic impact to the local economy. The absence of any notice or inclusion of our interests prior to this construction comes as a shock and disappointment. In spite of our past efforts, the BGSO believes that a serious breach of faith is at hand and requires exceptional efforts to resolve it. The BGSO Executive Committee visited the construction, observed active construction and requests an expedited conflict resolution process begin immediately regarding the construction of the Lake Fayetteville soft trail through the area of the Botanical Garden leasehold. The BGSO appoints Walt Eilers, President and Chris Bell, Vice President and Chair of the Plans and Properties Committee, as our two representatives. Please advise me of the two members of the conflict committee that will represent the City. Also, please schedule the initial working session of this group at the earliest convenience. The elements of the conflict between BGSO and the City of Fayetteville include: 1. The City has permitted and supported Ozark Off Road Cyclist Club and Progressive Trail Design to construct an expanded soft trail system within the bounds of the BGSO leasehold and without consideration for the approved lease and the master plans of the BGSO or the previous agreement to release trail right-of-way through the leasehold. 2. The Parks and Recreation staff has ignored repeated, specific and clear responses from the BGSO staff and board that we are not supportive of improving the soft trail system within the fee area leasehold because of BGSO plans to construct educational and outdoor recreation facilities throughout that area. We do not want the soft trails improved to avoid the presumption that the active of improvement gives an exception to the constructors that their improvements trump the leaseholder's investment and plans. 3. As the leaseholder, the BGSO board and staff did not have notice and was not included in any planning of this significant construction project. The remedy that the BGSO Executive Committee proposes is: 1. The negotiating offer to return the non -fee area to the City has not been accepted and is hereby withdrawn. The lease has not been changed so the City should recognize that the existing lease is in full force. 2. Regarding the construction of soft trails, in the fee area of the leasehold the BGSO offers a reasonable solution consistent with the soft trail around the remainder of the lake. We recommend that the City, Ozark Off Road Cyclists and Progressive Trail Design change their plans and construct the soft trail on the south side or outside of the newly constructed section of the Lake Fayetteville Trail from the non -fee area through to the bridge crossing Hilton Creek. 3. In the meantime, BGSO requests that the City, Ozark Off Road Cyclists and Progressive Trail Design cease and desist in any further construction within the boundaries of the leasehold until this matter is resolved. Submitted February 18, 2013 Walt Eilers for the BGSO Executive Committee Walt Eilers, President Martha McBride, Vice President Chris Bell, Treasurer Cathy Bass, At Large Member Aaron Bleidt, At Large Member BGSO Lease edits When the current lease was devised, neither the city nor the BGSO had actually built or operated a botanical garden. Now, as BGSO completes the fifth year of successful operations and growth we ask to update the lease. We believe that our successful experience and the resulting asset for Northwest Arkansas deserve recognition. We request a lease and not an operating agreement. Our auditor, Tim Fulmer, notes in the 2011 audit that the existing lease is actually an operating agreement because of its provisions detailing operational elements and that the wording jeopardizes and restricts BGSO's ability to solicit major gifts to complete the development of the Garden. The language actually puts BGSO into a conflicting situation with its IRS 501 (c) (3) function in which we raise money to benefit our organization, not an outside, municipal entity. BGSO requests that the lease focus on eight (8)relevant elements: 1. Property Description: Revise the property description to reflect the specific area for which the BGSO is responsible to develop, operate and manage. We request that the Lake Fayetteville trail area that has been developed and expanded be removed from the lease. Second, the BGSO board would like to return the non -fee area from the south boundary of the Garden and continuing to Veteran's Park from the lease. 2. Revise the Property Title: BGSO will retain the title to any improvements and betterments within the leasehold. In the event that BGSO ceases to exist as a 501 (c) (3), these assets will be conveyed to the City of Fayetteville. 3. Define Parking: The BGSO has built and maintains a parking lot adjacent to the Totemeier Visitors' Center for the exclusive use of its visitors and patrons. BGSO also provides a Farmers' Market, overflow and trail head lot (B in the Master Plan) and will maintain that lot. 4. Include revised BGSO Master Plan: The lease will include as an exhibit the 2012 Master Plan. The BGSO Master Plan will be accepted by the PRAB and City Council as a PZD for the long-term development of the Garden features. The Master Plan and subsequent designs and construction plans will meet the current city standards at the time they are presented to the Planning and Zoning Commission and Council for approval. 5. Revise Lease Term: Establish 2013 as the new start date with a 25 -year term and provide for two renewals. 6. Add Annual Report: In January of each year the President and Executive Director will present a written, digital and oral report and assessment of the preceding year of operation to the City Clerk, PRAB and City Council. The report will include current Arkansas corporate filings, Garden policies and procedures, BGSO board members, IRS letter, budget and most recent IRS 990 report and audit. 7. Add Compliance: The BGSO, Garden and groups using the facilities will be in compliance with all City and Garden regulations. 8. Add Garden Operations: BGSO shall use its discretion in setting admission, rental and use fees for the Garden and its facilities. RESOLUTION NO. 130.03 A RESOLUTION APPROVING A LAND LEASE AGREEMENT WITH THE BOTANICAL GARDEN SOCIETY OF THE OZARKS FOR THE PURPOSE OF OPERATING A BOTANICAL GARDEN AT LAKE FAYETTEVILLE PARK. 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 a Land Lease Agreement with the Botanical Garden Society of the Ozarks for the purpose of operating a botanical garden at Lake Fayetteville Park. A copy of the Lease Agreement marked Exhibit "A" is attached hereto and made a part hereof. PASSED and APPROVED this 2nd day of September 2003. ATTEST: By: SOND A SMITH, City Clerk APPROVED: By: FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS TO: Mayor Coody and City Council THRU: Gary Dumas, Director of Operations FROM: Connie Edmonston, Parks & Recreation Director DATE: August 11, 2003 SUBJECT: Botanical Gardens of the Ozarks Lease Agreement Background On September 2, 1997, City Council approved a Land Lease Agreement with the Botanical Garden Society of the Ozarks, Inc. (BGSO), for the purpose of operating a botanical garden at Lake Fayetteville to serve Northwest Arkansas. The Portico Group of Seattle, Washington developed a master plan of the gardens in 2000. With the completion of the Master Plan, several fund raising events are held each year to finance the project. Current Status Since BGSO has been established for five years and a master plan has been developed, the relationship through the lease agreement with the City needs to be redefined. The term of the lease is 25 years. It may be renewable for three additional 25 year renewal terms upon the mutual agreement of the parties. Other items in the agreement further outlined responsibilities of the trails and parking lot in both fee and non -fee areas. Any major changes in the master plan must be submitted to the Parks and Recreation Advisory Board (PRAB) for approval. The City is allowed three seats on the BGSO Board consisting of a PRAB member, Parks and Recreation staff representative, and a member appointed by the City Council. BGSO is required to submit an annual progress report and audit to the City. In consideration for this lease, BGSO will offer free general admission to the garden on Saturdays from 9 am until 11 am. BGSO will also develop a 3 to 5 year plan of action with stated goals and objectives. By accepting this Lease Agreement, the City of Fayetteville encourages BGSO to continue their goal of preserving and enhancing one of Fayetteville's natural open spaces. In addition, the acceptance of this Lease Agreement also provides the foundation for the BGSO to acquire funds and complete their Master Plan. By creating an additional destination for both residents and visitors to Fayetteville, a completed botanical garden will be an important factor in the growth of Fayetteville's local economy. Recommendation Parks and Recreation Staff and Parks and Recreation Advisory Board recommend approval of the land lease agreement with the BGSO. Please find PRAB August 4, 2003 meeting minutes documenting their approval. Attachments: Land Lease Agreement Lake Fayetteville Map PRAB August 4, 2003 Meeting Minutes BSGO Letter from President Blair Johanson WEST MOUNTAIN 72701 479444-3471 FAX 479-521-7714 PARKS AND RECREATION ADVISORY BOARD Meeting Minutes August 4, 2003 Opening: The regular meeting of the Parks and Recreation Advisory Board was called to order at 5:30 p.m. on August 4, 2003 in Room 326 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas by Wade Colwell. Present: Parks and Recreation Advisory Board members Wade Colwell, Gail Eads, Bob Shoulders, Mike Hill, Craig Mauritson, Kristin Pawlik-Holmes, Jerry Bailey; City Staff Edmonton, Coles, Hatfield, Hesse, Ohman, Wright; and Audience. 2. Botanical Garden Society of the Ozarks, Inc. Lease Agreement: Legal staff has modified the original land lease agreement approved by PRAB on March 3, 2003. Carl Totemeier, Interim Director presented the contract changes. Changes include: • 25 years from and after the date of this agreement, subject to such being sooner terminated as provided in this agreement. This lease term shall be renewed for three (3) additional 25 year renewal terms upon the mutual agreement of the parties. This lease term may be renewed upon approval of the City of Fayetteville, Arkansas. Each renewal term will not be unreasonably denied by the City as long as the BGSO continues to operate a botanical garden on the City property identified with this lease. • BGSO will offer free general admission to the garden each Saturday morning from 9:OOam to 12:00pm. • PROGRESS. BGSO will develop and open a botanical garden on the City property identified with this lease agreement. BGSO will offer botanical garden programmatic and educational services as part of its mission. BGSO will establish an initial yearly attendance goal minimum for all BGSO garden services and programs of 5,000 people beginning with calendar year 2005. BGSO will develop a three to five year plan of action with stated goals and objectives. BGSO will continue to review, refine and renew these actions plans during the course of this lease. BGSO will prepare, publish and present an annual operations report to be submitted to the Fayetteville City Council. MOTION: Hill moved to approve a land lease agreement with the Botanical Garden Society as presented. Colwell seconded the motion. Upon roll call, the motion was approved 7-0-0. August 4, 2003 / 1 TO: FROM: ' BOTANICAL GARDEN SOCIETY OF THE OZARt 5; INC. P.O. Box 3079 • Fayetteville, Arkansas 72702-3079 • 479-443-6638 • info@bgso,org Mayor Dan Coody and the Fayetteville City Council Botanical Garden Society of the Ozarks ' DATE: August 6, 2003 , . SUBJECT:. Phase IA of the Master Plan for the Botanical Garden Society of the Ozarks The Botanical Garden of the Ozarks would like to request approval of the Revised Land Lease Agreement between the City of Fayetteville and the Botanical Garden Society of the Ozarks, Inc. The extension of the Iand lease duration, three 25 year renewals will give 11680 donors an assurance of the long tenn future of the botanical garden. We believe these changes offer fair consideration for both parties. Your support will be greatly appreciated as we move forward , with this magnificent project. . , Sincere] it(t 4114 Blair Joh President, BGSO, Inc. LAND LEASE AGREEMENT THIS AGREEMENT made this 02A4 day of "- 3aims cue between the City of Fayetteville, a Municipal Corporation of the State of Arkansas, hereinafter referred to as "the City", and the Botanical Garden Society of the Ozarks, Inc., an Arkansas Non -Profit Corporation, hereinafter referred to as "BGSO". WITNESSETH: WHEREAS, the parties desire to enter into an agreement regarding the operation and functioning of the Botanical Garden Society of the Ozarks which will serve the Northwest Arkansas community, and which will be built on land owned by the City of Fayetteville. WHEREAS, the BGSO's purpose is the establishment and operation of a botanical garden where diverse collections of plants will be displayed, utilized, and preserved for educational, environmental, recreational and scientific purposes, thereby promoting public awareness of the vital and unlimited roles that plants perform. NOW, THEREFORE, in consideration of the mutual covenants of the parties hereto the parties covenant and agree as follows: The City hereby designates for the establishment, construction, maintenance, and operation thereon of a botanical garden as aforesaid for the collection and display of plant materials and for such other purposes as are incident to the development and maintenance of a botanical garden and for no other purpose whatsoever, contiguous tracts of land in the City, described as follows: A part of the Northwest Quarter (NWI/4) of the Northeast Quarter (NEI/4), a part of the Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4), a part of the Southeast Quarter (SE 1/4) of the Northwest Quarter (NW 1/4), all in Section 24, Township 17 North, Range 30 West, Washington County, Arkansas, being all of that portion in said Section 24 as described in a Warranty Deed Recorded in Book 402 at Page 313 of the records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas, Less and except that portion of said parcel lying North of Lake Fayetteville waters and within the waters of Lake Fayetteville, said waters being more particularly described as that portion of said parcel lying below an elevation of 1238 feet above mean sea level, said elevation being the top of the Lake Fayetteville spillway. The Northeast Quarter (NE 1/4) of the Northeast Quarter (NE 1/4) of Section 24, Township 17 North, Range 30 West, as described in a Warranty Deed Recorded in Book 400 at Page 328 of the records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas and a part of the fractional Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 19, Township 17 North, Range 29 West, Washington County, Arkansas, being particularly described as follows: Beginning at a point which is North 88° 22' 40" West 108.90 feet from the Southeast confer of NW 1/4 of the NW 1/4 of said Section 19, thence North 02° 21'13" East 1048.50 feet; thence 88°22'40" West 1242.78 feet; thence South 02°31'34" West 1048.55 feet to the South line of said 40 acre tract; thence along said South line South 88° 22' 40' East 1242.78 feet to the Point of Beginning, less and except that portion of said parcel lying North of Lake Fayetteville waters and within the waters of Lake Fayetteville, said waters being more particularly described as that portion of said parcel lying below an elevation of 1238 feet above mean sea level, said elevation being the top of the Lake Fayetteville spillway. 1.0. MAINTENANCE, PROMOTION, AND OPERATION OF THE GARDEN. The parties agree that the Society shall operate, maintain, and promote the Botanical Garden of the Ozarks for and on behalf of the City on the property wholly owned by the City and identified above and incorporated by reference herein as set forth in this agreement. 2.0. LEASE TERM. The lease term shall commence on the date of this agreement and shall expire at midnight local time in the City of Fayetteville, Arkansas, on the date which is 25 years from and after the date of this agreement, subject to such being sooner terminated as provided in this agreement. This lease term shall be renewed for three (3) additional 25 year renewal terms upon the mutual agreement of the parties. This lease term may be renewed upon approval of the City of Fayetteville, Arkansas. Each renewal term will not be unreasonably denied by the City as long as the BGSO continues to operate a botanical garden on the City property identified with this lease. 2.1. REVIEW AND EVALUATION. The parties acknowledge that the Botanical Garden of the Ozarks is in its formative stages and that its development will be ongoing and changeable. IT IS FURTHER recognized that the roles, functions, and responsibilities of the respective parties will develop, grow, and/or change as well. For these reasons, the parties shall review and evaluate this agreement on a yearly basis to insure its appropriateness and applicability. The B050 shall present an annual progress review to the Parks and Recreation Staff, Advisory Board and the City Council. 2.2. The Mayor or his designated representative and the 13050 shall meet as requested by any party to review the terms of this lease, to suggest and negotiate changes which may be appropriate. 3.0. TITLE TO BUILDINGS AND GROUNDS. The 8050 acknowledges without reservation that the City owns and shall hold title to the grounds and any future buildings constructed on the premises. 4.0. OPERATING POLICIES .AND RESPONSIBILITIES. The 8050 shall provide to the Mayor or his designated representative its general operating policies for the Garden in written form. These operating policies shall ensure nondiscriminatory opportunities for all citizens. The Society agrees that its policies and operations shall be designed to preserve and maintain the integrity of all buildings, grounds and improvements existing on the premises, and shall consider the policies of Parks and Recreation regarding cultural and recreational facilities. 5.0. RULES AND REGULATORS OF BGSO. The BGSO may establish and enforce any reasonable rules and regulations regarding behavior of visitors to assure the well being of the plants and gardens, as well as the safety, comfort and quality of experience for visitors to the premises and shall provide copies of these rules and regulations to the Mayor or his designated representative. To the extent permitted by law, either the City or the 8050 may exclude objectionable uses, or abusive or offensive person(s) from all premises subject to this agreement. 6.0. OPERATION AND SUPERVISION OF THE BOTANICAL GARDENS OF THE OZARKS. The 1305O shall exercise sole operational and supervisory authority over all grounds, buildings and personnel of the Garden and over all such matters, including but not limited to, safety, insurance, planning, plant acquisitions, displays and gardens, and the purchase, exchange, or acquisition of additional items to be added to the collections, except as otherwise provided in this agreement. The 8050 at its expense will be responsible for all maintenance and security associated with the operation of the Botanical Garden, including equipment, parking lots, and other improvements. The BGSO may not sublet any portion of the property without the express written consent of the City Council. 7.0 TRAILS: The BGSO specifically acknowledges the right of the public to access trails in the non -fee area without charge. BGSO must obtain the approval of the Parks and Recreation Staff on the routing and design of all public trails through this land lease area. Wtyjile February 21, 2013 Botanical Garden Society of the Ozarks Ron Cox, Executive Director Walt Eilers, Board Presidents BGSO Executive Board PO Box 10407 Fayetteville, AR 72703 Dear Mr. Ron Cox, Mr. Walt Eilers and All BGSO Executive Committee Board Members: My Chief of Staff, Don Marr, provided me the letter presented to him on Tuesday, Februaryl9th, 2013 regarding your request to expedite the conflict resolution process regarding the construction of Lake Fayetteville soft trail through the Non -Fee area of the Botanical Garden leased property. I am writing to confirm with you that I have received this request and I am working to begin this process. I have reviewed your letter with our City Attorney's office, and reviewed each of the points outlined within your letter. Per the lease agreement (item 13), it states "In the event of disagreement regarding operations procedures or scheduling, a committee consisting of four (4) members, one (1) appointed by the City, one (1) appointed by the City Parks & Recreation Advisory Board, and two (2) by the BGSO will be constituted to resolve the differences. If no resolution is reached within a reasonable period, then this committee shall refer the matter to the City Council, whose decision shall be binding to both parties." I have noted your appointments outlined in your letter to me. I have also requested Connie Edmonston the Senior Director of Parks & Recreation and the staff member assigned to the Parks & Recreation Advisory Board to immediately begin a dialogue with the Parks & Recreation Advisory Board requesting they appoint one individual to the conflict resolution team. l 13 West Mountain 72701 (479) 575-8323 accessfayetteville.org TDD (Telecommunications Device for the Deaf) (479)-521-1316 The Parks Advisory Board meets on the first Monday of each month. Their next regularly scheduled Parks Board meeting is scheduled or Monday March 4th. I have asked that they add to their agenda the appointment of one person to serve on this conflict resolution team. Once the Park Board has made their appointment I will make the appointment to represent the City, and have the first meeting hopefully scheduled for later the week of March 4th. In meeting with various individuals upon receiving your letter, I believe there is a difference of opinion between individuals that attended the very same meetings about permissions and communications relating to the soft bike trails currently being repaired and maintained. City Parks & Recreation Director Connie Edmonston, Byron Humphrey's —Parks Maintenance Supervisor, both believed that permission was granted by the BGSO Executive Director (Ron Cox) in a meeting that took place January 14, 2013. However, in Ron's visit with my Chief of Staff yesterday, Mr. Cox communicated that he did not believe that he had given that permission. The request to cease and desist in any further construction on the soft bicycle trails in the Non -Fee leased area can not be granted at this time. The work being performed by Ozark Off Road Cyclist and Progressive Trail Design would result in a project being incomplete, and an added cost to the Citizens of Fayetteville since this work is being performed voluntarily for the citizens as an in-kind donation. The repair and maintenance of these trails does not encroach on any current BGSO operations areas, nor does it encroach on any future fee based plans. The discussion within the Fee Based areas is separate and apart from the current work being performed. As for construction methods of the trail repair work currently being conducted and referenced in your letter, I want to communicate to you that I believe that City Staff is following construction requirements as outlined by City Code. The City Parks and Recreation Maintenance Supervisor and Sarah Wrede — a City Engineer responsible for storm water management, erosion controls, etc. reviewed the work site. Sarah Wrede's findings determined that this repair project is not a project that would require a grading permit from Engineering. It was also determined that this project (work areas) is under an acre in total size and would not require an ADEQ construction permit. It was also determined that the construction methods have utilized best management practices by minimizing the construction foot print and minimizing channeling of runoff. Some hay bale check dam locations were recommended as additional protection above and beyond any regulatory requirements. Stopping the soft trail work immediately, as you suggest would cause increased erosion problems. City Staff continues working with the crews to ensure that all requirements are being met as required by City Code. 113 West Mountain 72701 (479) 575-8323 accessfayetteville.org TDD (Telecommunications Device for the Deaf) (479)-521-1316 The discussion on your complaint, and additionally the desired lease changes, usage of land within the fee based boundaries„ boundary changes and any other lease grievances from either party will be presented to the assigned committee. While there are several areas of concern from BGSO, there are some lease agreement conditions that are also of concern to the City's Parks & Recreation Management that will be brought forward to the conflict resolution process since this request has now been made. As soon as the Advisory Board makes an appointment, I will get you names and contact information for all representatives assigned to this resolution team, as well as getting a first meeting set. It is my expectations as Mayor that a "reasonable time" as defined within the lease should take no longer than a two (2) week period. If differences can not be resolved within that time period, then we will forward this issue (and any others identified in the conflict resolution process) to the City Council for final determination. I am confident that this can be worked out, and we can come to a reasonable resolution where all parties involved are satisfied. Very my youp Mayor Liobe$8 Jordan, City of Fayetteville AR Cc: Connie Edmonston, Senior Director of Parks & Recreation Department Don Marr, Chief of Staff Kit Williams, City Attorney 113 West Mountain 72701 (479) 575-8323 accessfayetteville.org TDD (Telecommunications Device for the Deaf) (479)-521-1316 STACY LEVY Stacy Levy/Sere Ltd. 576 Upper Georges Valley Road Spring Mills, PA 16875 phone: 814-360-4346 e-mail: stacy@stacylevy.com APPROXIMATE TOTAL AREA 1,176 SQ. FT. 4' x 8' Units : 4' x 4' Units : 3' x 2' Units : Custom Units : 256 SQ. 304 SQ. 210 SQ. 406 SQ. APPROXIMATE TOTAL PERIMETER 1,046 FT. Shore Line ►♦ ♦♦ 4'x8': 8 Units 4'x4': 19 Units 3'x2': 35 Units Custom Size: 5 Units Plan: Not to Scale 58 FT 310 LINEA FT 292 LINEAR FT P = PERIMETER A = AREA P: 40' A: 41 ft2 P: 33' A: 67 ft2 CUSTOM UNITS P: 55' A: 187 ft2 P: 29' A: 53 ft2 P: 42' A: 58 ft2 CUSTOM UNIT DIMENSIONS 8„ • 66' - 6"