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HomeMy WebLinkAbout151-01 RESOLUTION1 • • 1 RESOLUTION NO. 151-01 A RESOLUTION TO APPROVE AN OFFER AND ACCEPTANCE CONTRACT FOR THE CITY'S PURCHASE OF APPROXIMATELY 6.58 ACRES FROM THE ARKANSAS AND MISSOURI RAILROAD COMPANY TO ASSIST IN THE EXPANSION OF GREGG AVENUE INTO A FOUR LAND AVENUE FROM TOWNSHIP TO VAN ASCHE l.dtf • WHEREAS, the City Council has determined it is vital to enlarge Gregg Avenue from Township north to the new Washington Regional Medical Center and the businesses on Millsap and toward the Northwest Arkansas Mall, and; WHEREAS, the City of Fayetteville needs to obtain right of way to move utilities and allow expansion of Gregg Avenue in partnership with the Arkansas Highway Commission's plan to enlarge Gregg Avenue from Township Avenue north toward the 1[- 540 Bypass; and WHEREAS, it will save the City substantial funds to obtain most of the right of way through the purchase of this right of way on the West side of Gregg Avenue from the Arkansas and Missouri railroad. 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 the Offer and Acceptance Contract to purchase approximately 6 58 acres from the Arkansas and Missouri Railroad Company for $263,200.00 and authorizes the Mayor to execute said contract and any additional documents necessary to fulfill this purchase. jASSED and APPROVED this the 6th day of November, 2001. r `0' By://a4 //�'� �^Z Bather Woodruff, City Cl APPROVED: By: • • NAME OF FILE: CROSS REFERENCE: Resolution No. 151-01 • 11/06/01 Resolution No. 151-01 10/03/01 Offer and Acceptance Contract 10/04/01 Addendum to the terms and conditions of the Offer and Acceptance Contract Exhibit "A" Property Description (Gregg Avenue Proposed Right of Way Acquisition) of the Offer and Acceptance Contract 11/03/01 Acknowledgment of the Offer and Acceptance Contract 25 Ft Railroad ROW Proposed Acquisition Appraisal Report 10/19/01 Memo to Mayor Coody and City Council thru Ted Webber, Admin. Services Director, from Stephen Davis, Budget Manager, regarding Gregg Street Right -of -Way (ROW) Purchase - Options 10/04/01 Memo to Fay. City Council thru Mayor Coody, Greg Boettcher, PW Director, Jim Beavers, City Engineer, from Ed Connell, regarding Purchase of Railroad ROW for Gregg Ave. Expansion 09/28/01 Memo to Jim Beavers, City Engineer, from Greg Boettcher, PW Director, regarding Gregg Avenue Widening and Improvement Preliminary Schedule/R.O.W. Acquisition 09/19/01 Letter to Mayor Coody from Robert L. Walters, Chief Engineer, AHTD 10/16/01 Staff Review Form 11.09/01 Memo to Ed Connell, Engineering Division, from Heather Woodruff, City Clerk NOTES: Form No. 1402.92 (10/17/92) ALTA Owner's Policy First American Title Insurance Company SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule Al sustained or incurred by the insured by reason of: Title to the estate or interest described in Schedule A being vested other than as stated therein; Any defect in or lien or encumbrance on the title; Unmarketability of the title; Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. .`' Bronson Abstract Company, Inc. 3810 Front Street, Suite #5 Fayetteville, AR 72703 (479) 442-2700 Fax: (479) 442-8475 A Policy -Issuing Agent of First American Title Insurance Company First American Title Insurance Company • • Policy No.J800488 SCHEDULE A File No.2001-12701 Amount of insurance: $263,200.00 Premium: SPECIAL Date of Policy: DECEMBER 31, 2001 at 3:48 P.M. 1. Name of Insured: THE CITY OF FAYETTEVILLE, ARKANSAS, a municipal corporation 2. The estate or interest in the land described herein and which is covered by this policy is FEE SIMPLE and is at Date of Policy vested in: 3. is as THE INSURED The land referred to in this policy is described in the said instrument, situated in the County of WASHINGTON, State of ARKANSAS, and is identified follows: A part of the East Twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main line 100 foot wide right of way upon, over and across a portion of the W 1/2 NE 1/4 of Section 27 in Township 17 North, Range 30 West, being more particularly described as follows: Beginning at a point 1529.2 feet North of the South line of the NE 1/4 of Section 27, Township 17 North, Range 30 West and on the East right of way line of the Railway Company's 100 foot right of way line; thence running South along the East line of said Railroad Company's 100 foot right of way 1529.2 feet to the South line of said NE 1/4, also known as the centerline of Van Asche Drive; thence West perpendicular to the centerline of said railroad, a distance of 25 feet, thence in a Northeasterly direction 1529.40 feet, more or less, to the point of beginning, containing 19,115 square feet (0.439 acre), more or less, subject to easements, leases and rights of way of record. ALSO COUNTERSIGNED BY: bit STATE LICENSE NO. IA14U AGENT LICENSE NO. SA140-01 /31•41.1441L-• BRONSON ABSTRACT COMPANY, INC 3810 FRONT STREET, SUITE 5 FAYETTEVILLE, AR 72703 ********************************* FIRST AMERICAN TITLE INSURANCE COMPANY ********************************* • • Policy No.J800488 The East twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main Line 100 foot wide right of way upon, over and across the W 1/2 of the SE 1/4 of Section 27, the E 1/2 of Section 34, all in Township 17 North, Range 30 West, and the North 3,636.7 feet, to an end point, in the E 1/2 of Fractional Section 4, Township 16 North, Range 30 West, as measured by the East right of way line of the Railroad Company's Main Line, said end point also known as the centerline of Poplar Street, covering 10,707.3 feet in length and 267,682.5 square feet (6.145 acres), subject to easements, leases and rights of way of record. COUNTERSIGNED BY: STATE LICENSE NO. IA140 BRONSON ABSTRACT COMPANY, INC 3810 FRONT STREET, SUITE 5 FAYETTEVILLE, AR 72703 AGENT LICENSE NO. SA140-01 ********************************* FIRST AMERICAN TITLE INSURANCE COMPANY ********************************* • • Policy No.J800488 SCHEDULE B File No.2001-12701 This policy does not insure against loss or damage by reason of the following: 1 General taxes for the year 2000 and subsequent years not yet due and payable. 2 Subject to reservations, easements, licenses, agreements, covenants, conditions, rights of entry, and leases as shown heretofore reserved or conveyed. 3 Rights or claims of parties in possession, boundary line disputes, overlaps, encroachments, and any other matters not shown by the public records which would be disclosed by an accurate survey and inspection of the land described in Schedule A. BRONSON ABSTRACT COMPANY, INC 3810 FRONT STREET, SUITE 5 FAYETTEVILLE, AR 72703 ********************************* FIRST AMERICAN TITLE INSURANCE COMPANY ********************************* 015 04 Document Reference RES Date 11/06/2001 Cyof Fayetteville Maintenance/Inquiry Item Action Ref. Taken Brief Description 151 • 8/25/2004 10:04:32 PURCHASE ACRES/ARK. & MISSOURI RR Keywords • File Reference # • Security Class Expiration Date Date for Cont/Referred: Name Referred to Cmdl-Return Cmd2-Check Cmd5-Abstract Yes No RES. 151 CONTRACT 6.58 ACRES ARKANSAS AND MISSOURI RAILROAD EXPANSION GREGG AVENUE FOUR LANE TOWNSHIP VAN ASCHE MICROFILM Retention Type: **** Active **** Press Cmd 6 to Update Out Cmd8-Retention Cmd3-End Press 'ENTER' to Continue (c) 1986-1992 Munimetrix Systems Corp. Mlica3 uIM ED • OFFER AND ACCEPTANCE CONTRACT Es. /6/-D/ //-0&-DI 1. The City of Fayetteville, Arkansas, a municipal corporation, hereinafter referred to as the Buyer, offers to buy, subject to the terms and conditions set forth herein, the following described property: SEE ATTACHED EXHIBIT "A" FOR PROPERTY DESCRIPTION 2 Purchase Price: Subject to the following conditions, the Buyer shall pay for the property at closing, the total and cash payment of $263,200.00. 3. Contingent Earnest Money Deposit: The Buyer herewith tenders a check for $ 4,000.00 to Arkansas and Missouri Railroad Company, a Virginia corporation, hereinafter referred to as the Seller, as earnest money, which shall apply on the purchase price. This offer of purchase is contingent upon approval of the City Council of the City of Fayetteville, Arkansas, and, if they do not so approve, the earnest money deposit will be returned to the Buyer by the Seller. If title requirements are not fulfilled or the Seller fails to fulfill any obligations under this contract, the earnest money shall be promptly refunded to the Buyer. If the Buyer fads to fulfill his obligations under this contract or after all conditions have been met, the Buyer fails to close this transaction, the earnest money may, at the option of the Seller, become liquidated damages to the Seller. Alternatively, the Seller may assert legal or equitable rights which it may have because of breach of this contract. 4. Conveyance will be made to the Buyer by Quit Claim Deed, therein conveying any and all rights of the Seller on an as -is basis, except it shall be subject to recorded instruments, easements, leases and rights of way, if any, which do not materially affect the value of the property. Such conveyance shall include mineral rights owned by the Seller 5. The Seller shall furnish a policy of title insurance in the amount of the purchase price from a title insurance company as selected by the Buyer. Buyer and Seller shall share equally in the cost of such title insurance. 6. Seller agrees to allow Buyer, if Buyer so desires, at Buyer's expense, to survey the property Seller agrees to cure any title problems which may result from any differences between the recorded legal descriptions of the property and the survey description. Said title problems, if any, must be solved prior to closing to the satisfaction of the Buyer 7. Taxes and special assessments due on or before closing shall be paid by the Seller. Insurance, general taxes, ad valorem taxes, special assessments and rental payments shall be prorated as of the closing date. Off Acc Col • • OFFER AND ACCEPTANCE CONTRACT Page2of5 8. The closing date is designated to be within Thirty (30) days after approval of this Contract by the Fayetteville City Council. This Contract will submitted to the Fayetteville City Council for approval within three weeks of the date of Seller signature. 9. Possession of the property shall be delivered to the Buyer on the date of closing. 10. Seller hereby grants permission for the Buyer or its employees or designates to enter the above described property for the purpose of inspection and/or surveying. 11. All fixtures, improvements and attached equipment are included in the purchase price. 12. Risk of Toss or damage to the property by fire or other casualty occurring up to the time of closing is assumed by the Seller. 13. Seller shall disclose to Buyer any and all environmental hazards of which Seller has actual knowledge. Buyer shall accept property described in Exhibit "A" on an "as -is" basis. 14. This agreement shall be governed by the laws of the State of Arkansas. 15. This agreement, when executed by both the Buyer and the Seller shall contain the entire understanding and agreement of the parties with respect to the matters referred to herein and shall supersede all price or contemporaneous agreements, representations and understanding with respect to such matters, and no oral representations or statements shall be considered a part hereof. 16. This contract expires, if not accepted on or before the llth day of October, 2001. 17. NOTICE: BUYER ASSERTS AND SELLER HEREBY ACKNOWLEDGES THAT THIS OFFER IS EXPRESSLY CONTINGENT UPON THE APPROVAL OF THIS OFFER OF PURCHASE BY THE CITY COUNCIL OF FAYETTEVILLE AND THAT THE FAILURE OF THE COUNCIL TO SO APPROVE WILL MAKE ALL PORTIONS OF THIS OFFER NULL AND VOID, INCLUDING, BUT NOT LIMITED TO, THE RETURN TO BUYER OF THE $4,000 00 EARNEST MONEY DEPOSIT. • • OFFER AND ACCEPTANCE CONTRACT Page 3 of 5 SELLER: Arkansas and Missouri Railroad Company BY: 47- a Lawrence P. Bouchet, President WITNESS: c. G. Brent McC eady, Senior vicefesident BUYER: City of Fayetteville, Arkansas, a municipal corporation Dan Goody, Mayor Date: /0'V-&/ Date: I d — y— 01 Date: f04 3/0/ te Date: /04// Bather Woodruff, City Cle • • OFFER AND ACCEPTANCE CONTRACT Page 3a ADDENDUM TO THE TERMS AND CONDITIONS OF THIS CONTRACT Addendum No. 1 Seller asserts and Buyer hereby acknowledges that this offer is also expressly contingent upon the assurance by Buyer that, after conveyance of the property, said property will not be altered in any manner which would affect or otherwise compromise the operation of the Seller's railroad upon the existing rail line, resulting from, but not limited to, changes in drainage, alignment of the existing rail line, or otherwise, and further, that if any such changes or alterations be made by Buyer after conveyance of the property which does so affect or otherwise compromise the operation of the Seller's railroad, then Buyer shall be responsible for any and all costs associated with correcting said alterations so that the operation of Seller's railroad may be conducted in such a manner as existed prior to the sale of the property described herein. r • • OFFER AND ACCEPTANCE CONTRACT Page 4 of 5 EXHIBIT "A" PROPERTY DESCRIPTION Gregg Avenue Proposed Right of Way Acquisition A part of the East Twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main line 100 foot wide right of way upon, over and across a portion of the W% -NE'% of Section 27 in Townshipl7 North, Range 30 West, being more particularly described as follows: Beginning at a point 1529.2 feet North of the South line of the NE% of Section 27, Township 17 North, Range 30 West and on the East right of way line of the Railway Company's 100 feet right of way line; thence running South along the East line of said Railroad Company's 100 foot right of way 1529.2 feet to the South line of said NE%, also known as the centerline of Van Asche Drive; thence West, perpendicular to the centerline of said railroad, a distance of 25 feet; thence in a Northeasterly direction 1529.40 feet, more or less, to the Point of Beginning, containing 19,115 ft2 (0.439 Acre), more or less, subject to easements, leases and rights of way of record, Also, The East twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main Line 100 foot wide right of way upon, over and across the W'/ of the SE'/. of Section 27, the E'% of Section 34, all in Township 17 North, Range 30 West, and the North 3,636.7 feet, to an end point, in the E'/ of Fractional Section 4, Township 16 North, Range 30 West, as measured by the East right of way line of the Railroad Company's Main Line, said end point also known as the centerline of Poplar Street, covering 10,707.3 feet in length and 267,682.5 ft2 (6.145 acres), subject to easements, leases and rights of way of record. SIGNED FOR IDENTIFICATION: SELLER: Arkansas and Missouri Railroad Company BY: r iF Lawrence P. Bouchet, President BUYER: The City of Fayetteville, Arkansas, a municipal corporation BY: 421Z an Goody, Mayor 6 • • OFFER AND ACCEPTANCE CONTRACT Page 5 of 5 ACKNOWLEDGMENT STATE OF ARKANSAS ) ss. COUNTY OF WASHINGTON ) BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Dan Coody and Heather Woodruff, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the Mayor and City Clerk of the City of Fayetteville, Arkansas, a municipal corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municipal corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and seal on this CII day of,1"F, 7;40ex-- 2001. MY COMMISSION EXPIR &r --O/- 2010 Nota Public ACKNOWLEDGMENT STATE OF ARKANSAS ) ss. COUNTY OF WASHINGTON ) BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Lawrence P. Bouchet and G. Brent McCready, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the President and Senior Vice -President and are duly authorized to execute the foregoing instrument for and in the name and behalf of the Arkansas and Missouri Railroad Company, a Virginia corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and seal on this 46 day of a;a,C.-- 2001. MY COMMISSION EXPIRES' O.S—D/—EOM efbArege Notary Public ; 2 Iwtve EDWARD D. CONNELL II Washington County Ff My Commission Expires May 1,2010 4 ,own „»T`•` EDWARD D. CONNELL Washington County My Commission Expires May 1,2010 Nota Public ACKNOWLEDGMENT STATE OF ARKANSAS ) ss. COUNTY OF WASHINGTON ) BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Lawrence P. Bouchet and G. Brent McCready, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the President and Senior Vice -President and are duly authorized to execute the foregoing instrument for and in the name and behalf of the Arkansas and Missouri Railroad Company, a Virginia corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and seal on this 46 day of a;a,C.-- 2001. MY COMMISSION EXPIRES' O.S—D/—EOM efbArege Notary Public ; 2 Iwtve EDWARD D. CONNELL II Washington County Ff My Commission Expires May 1,2010 .• 1 a 0 Ii In 901AIn r. 1-6I�p Pc•1 r: OWN 1.D tC' fes. m6oQo rl.r� N fl r0)A Iri OI mNrN Ct,I N N N r J rN f7It ill CO F- 0 • 1 024.1 afa • • motto q,oW 0'29.zs' 19115-,C • i •••••m' -- • • •N• Pop4a S 1 • • r•• 1°17o7.3 "4• lei, 644 RRnnoa 24; IJZ,5 • Juniata DOS T0WAISMe S, • • • OFFER AND ACCEPTANCE CONTRACT 1. The City of Fayetteville, Arkansas, a municipal corporation, hereinafter referred to as the Buyer, offers to buy, subject to the terms and conditions set forth herein, the following described property: SEE ATTACHED EXHIBIT "A' FOR PROPERTY DESCRIPTION 2 Purchase Price: Subject to the following conditions, the Buyer shall pay for the property at closing, the total and cash payment of $263,200.00. 3. Contingent Earnest Money Deposit: The Buyer herewith tenders a check for $ 4,000.00 to Arkansas and Missouri Railroad Company, a Virginia corporation, hereinafter referred to as the Seller, as earnest money, which shall apply on the purchase price. This offer of purchase is contingent upon approval of the City Council of the City of Fayetteville, Arkansas, and, if they do not so approve, the earnest money deposit will be returned to the Buyer by the Seller. If title requirements are not fulfilled or the Seller fails to fulfill any obligations under this contract, the earnest money shall be promptly refunded to the Buyer. If the Buyer fails to fulfill his obligations under this contract or after all conditions have been met, the Buyer fads to close this transaction, the eamest money may, at the option of the Seller, become liquidated damages to the Seller. Alternatively, the Seller may assert legal or equitable rights which it may have because of breach of this contract. 4. Conveyance will be made to the Buyer by Quit Claim Deed, therein conveying any and all rights of the Seller on an as -is basis, except it shall be subject to recorded instruments, easements, leases and rights of way, if any, which do not materially affect the value of the property. Such conveyance shall include mineral rights owned by the Seller 5. The Seller shall furnish a policy of title insurance in the amount of the purchase price from a title insurance company as selected by the Buyer. Buyer and Seller shall share equally in the cost of such title insurance. 6. Seller agrees to allow Buyer, if Buyer so desires, at Buyer's expense, to survey the property Seller agrees to cure any title problems which may result from any differences between the recorded legal descriptions of the property and the survey description. Said title problems, if any, must be solved prior to closing to the satisfaction of the Buyer 7. Taxes and special assessments due on or before closing shall be paid by the Seller. Insurance, general taxes, ad valorem taxes, special assessments and rental payments shall be prorated as of the closing date. • • OFFER AND ACCEPTANCE CONTRACT Page 2 of 5 8. The closing date is designated to be within Thirty (30) days after approval of this Contract by the Fayetteville City Council. This Contract will submitted to the Fayetteville City Council for approval within three weeks of the date of Seller signature. 9. Possession of the property shall be delivered to the Buyer on the date of closing. • 10. Seller hereby grants permission for the Buyer or its employees or designates to enter the above described property for the purpose of inspection and/or surveying. 11. All fixtures, improvements and attached equipment are included in the purchase price 12. Risk of Toss or damage to the property by fire or other casualty occurring up to the time of closing is assumed by the Seller. 13. Seller shall disclose to Buyer any and all environmental hazards of which Seller has actual knowledge. Buyer shall accept property described in Exhibit "A" on an "as -is" basis. 14. This agreement shall be govemed by the laws of the State of Arkansas. 15. This agreement, when executed by both the Buyer and the Seller shall contain the entire understanding and agreement of the parties with respect to the matters referred to herein and shall supersede all price or contemporaneous agreements, representations and understanding with respect to such matters, and no oral representations or statements shall be considered a part hereof. 16. This contract expires, if not accepted on or before the 11th day of October, 2001. 17. NOTICE: BUYER ASSERTS AND SELLER HEREBY ACKNOWLEDGES THAT THIS OFFER IS EXPRESSLY CONTINGENT UPON THE APPROVAL OF THIS OFFER OF PURCHASE BY THE CITY COUNCIL OF FAYETTEVILLE AND THAT THE FAILURE OF THE COUNCIL TO SO APPROVE WILL MAKE ALL PORTIONS OF THIS OFFER NULL AND VOID, INCLUDING, BUT NOT LIMITED TO, THE RETURN TO BUYER OF THE $4,000 00 EARNEST MONEY DEPOSIT. • OFFER AND ACCEPTANCE CONTRACT Page 3 of 5 SELLER: Arkansas and Missouri Railroad Company BY: %az— 4%itetei Lawrence P. Bouchet, President WITNESS: %\t"^\seG. Brent Mady, Senior viceitesident BUYER: City of Fayetteville, Arkansas, a municipal corporation Dan Coody, Mayor either Woodruff, City Cle • r Date: /0 ' y d/ Date: Ea - }- 01 Date: RIO 34/ Date: /O4%/ • • OFFER AND ACCEPTANCE CONTRACT Page 3a ADDENDUM TO THE TERMS AND CONDITIONS OF THIS CONTRACT Addendum No. 1 Seller asserts and Buyer hereby acknowledges that this offer is also expressly contingent upon the assurance by Buyer that, after conveyance of the property, said property will not be altered in any manner which would affect or otherwise compromise the operation of the Seller's railroad upon 'the existing rad line, resulting from, but not limited to, changes in drainage, alignment of the existing rail line, or otherwise, and further, that if any such changes or alterations be made by Buyer after conveyance of the property which does so affect or otherwise compromise the operation of the Seller's railroad, then Buyer shall be responsible for any and all costs associated with correcting said alterations so that the operation of Seller's railroad may be conducted in such a manner as existed pnor to the sale of the property described herein. eil iyg /6- A OFFER AND ACCEPTANCE CONTRACT Page 4 of 5 EXHIBIT "A" PROPERTY DESCRIPTION Gregg Avenue Proposed Right of Way Acquisition A part of the East Twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main line 100 foot wide right of way upon, over and across a portion of the W:4 -NE'/. of Section 27 in Townshipl7 North, Range 30 West, being more particularly described as follows: Beginning at a point 1529.2 feet North of the South line of the NE% of Section 27, Township 17 North, Range 30 West and on the East right of way line of the Railway Company's 100 feet right of way line; thence running South along the East line of said Railroad Company's 100 foot right of way 1529.2 feet to the South line of said NE'., also known as the centerline of Van Asche Drive; thence West, perpendicular to the centerline of said railroad, a distance of 25 feet; thence in a Northeasterly direction 1529.40 feet, more or less, to the Point of Beginning, containing 19,115 ft2 (0.439 Acre), more or less, subject to easements, leases and rights of way of record, Also, The East twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main Line 100 foot wide right of way upon, over and across the W% of the SE% of Section 27, the E'r4 of Section 34, all in Township 17 North, Range 30 West, and the North 3,638.7 feet, to an end point, in the E% of Fractional Section 4, Township 16 North, Range 30 West, as measured by the East right of way line of the Railroad Company's Main Line said end point also known as the centerline of Poplar Street, covering 10,707.3 feet in length and 267,682.5 ft2 (6.145 acres), subject to easements, leases and rights of way of record. SIGNED FOR IDENTIFICATION: SELLER: Arkansas and Missoun Railroad Company BY: Lawrence P. Bouchet, President BUYER: The City of Fayetteville, Arkansas, a municipal corporation BY: an Coody, Mayor Er Pr DI k i SLED FOR RECO/• '01 DEC 31 P11 3 41 WASHINhiuN CO AR B STAMPS 44b t (f. 19-01 rs'Cr? ' 'T /pro rtify under penalty of false swearing that Aiu1i�-dst1 s.u,;•��I�j�.; d , least the legally correct amount of documentary stamps have been placed on this instrument. Cxti--% 4:2P Grantee voy��y`y,¢ Via-- Address 0.Address \\a.> t� Vasco. ..... yi QUITCLAIM DEED (Corporation) KNOW ALL MEN BY THESE PRESENTS: That the Arkansas and Missouri Railroad Company, Inc., a corporation organized under and by virtue of the laws of the State of Virginia, with its principal office located in Springdale, Washington County, Arkansas, by its President and Senior Vice -President, for the consideration of One Dollar and other valuable consideration, to it in hand paid by The City of Fayetteville, Arkansas, a municipal corporation, the receipt of which is hereby acknowledged, does grant, sell and quitclaim unto the said Grantee, its successors and assigns, the following described land situate in Washington County, State of Arkansas, to -wit: A part of the East Twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main line 100 foot wide right of way upon, over and across a portion of the W Y2 -NE'/ of Section 27 in Township 17 North, Range 30 West, being more particularly described as follows: Beginning at a point 1529.2 feet North of the South line of the NE' of Section 27, Township 17 North, Range 30 West and on the East right of way line of the Railway Company's 100 feet right of way line; thence running South along the East line of said Railroad Company's 100 foot right of way 1529.2 feet to the South line of said NE%, also known as the centerline of Van Asche Drive; thence West, perpendicular to the centerline of said railroad, a distance of 25 feet; thence in a Northeasterly direction 1529.40 feet, more or less, to the Point of Beginning, containing 19,115 ft2 (0.439 Acre), more or less. Also, The East twenty-five (25) feet of that portion of the Arkansas and Missouri Railroad Company Main Line 100 foot wide right of way upon, over and across the W1/2 of the SEY of Section 27, the E1/2 of Section 34, all in Township 17 North, Range 30 West, and the North 3,636.7 feet, to an end point, in the E1/2 of Fractional Section 4 Township 16 North, Range 30 West, as measured by the East right of way line of the Railroad Company's Main Line, said end point also known as the centerline of Poplar Street, covering 10,707.3 feet in length and 267,682.5 ft2 (6,145 acres), more or less. Subject to easements, rights-of-way and restrictive covenants of record, if any. TO HAVE AND TO HOLD unto the said Grantee and unto its successors and assigns, forever, with all appurtenances thereunto belonging. IN TESTIMONY WHEREOF, The name of the grantor is hereunto affixed by its President and Senior Vice -President this 31st day of December, 2001. S FATE OF ARKANSAS Lawrence P. Bouchet, President, Arkansas and Missouri Railroad Company, Inc. G. Brent McCrea ly, S'nior Vice -Pr 'dent, Arkansas and Missouri Railroad Comp Inc. ACKNOWLEDGMENT ) ss. COUNTY OF WASHINGTON ) 200117218B P BE IT REMEMBERED, That on this day came before the undersigned, a Notary Public within and for the County aforesaid, duly commissioned and acting, appeared in person the within named Lawrence P. Bouchet and G. Brent McCready, and to me personally known, who stated that they are the President and the Senior Vice -President, respectively, of the Arkansas and Missouri Railroad Company, Inc., a Virginia corporation, and are duly authorized in their capacity to execute the foregoing instrument for and in the name and behalf of said corporation, and further stated and acknowledged that they have so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. Witness my hand and seal as such Notary Public this 31st day of December, 2001. My commission expires Notary Publi ROBERT JEFFREY REYNERSO Notary Public Washington County, State of Arkansas Commission Expires: July 14, 2009 This deed prepared by R. Jeffrey Reynerson ,Attorney at Law, P.O. Box 1400, Springdale, AR 72765-1400. All tax information shall be sent to the Grantee at the address first stated above. 2001 172189 015 04 Cit of Fayetteville Maintenance/Inquiry • Document Item Action Reference Date Ref. Taken Brief Description WD 12/31/2001 DEED QUITCLAIM DEED/ARK, - - - - - - - - - - - - - - - - - - - - - - Keywords ............ .: RES. 151-01 QUITCLAIM DEED ARKANSAS AND MISSOURI RAILROAD 6.58 ACRES GREGG TOWNSHIP VAN ASCHE File Reference #......: MICROFILM Security Class........: Retention Type: Expiration Date .......: **** Active **** Date for Cont/Referred: Name Referred to......: Press Cmd 6 to Update Cmdl-Return Cmd2-Check Out Cmd8-Retention Cmd3-End Press 'ENTER' to Continue Cmd5-Abstract Yes No (c) 1986-1992 Munimetrix Systems Corp. 1/14/2002 17:00:42 MO. RAILROAD CO - - - OFFER AND ACCEPTANCE CONTRACT Page 5 of 5 ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Dan Coody and Heather Woodruff, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the Mayor and City Clerk of the City of Fayetteville, Arkansas, a municipal corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municipal corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and seal on this 3rd day of 2001. MY COMMISSION EXPIR ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON Notary Public BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Lawrence P. Bouchet and G. Brent McCready, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the President and Senior Vice -President and are duly authorized to execute the foregoing instrument for and in the name and behalf of the Arkansas and Missouri Railroad Company, a Virginia corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and seal on this day of , 2001. Notary Public MY COMMISSION EXPIRES: ezf-o/ - Zo /o EDWARD D. CONNELL Washington County r {,s My Commission Expires �"•�. "",;,^ May 1, 2010 • isa esri'y ,z•bsi h;y'St asar 0 APPRAISAL REPORT CITY OF FAYETTEVILLE Complete Summary Appraisal Report PROJECT Cmgg Ave. Impovmeot — Sycamore to Mud Creek Bridge COUNTY Washington PARCEL# Railroad Right of Way A LOCATION West Side of Gregg Ave. between Sy s SL and the Mud Creek Bridge FEE OWNER Aricao®s Missouri Railroad Co. ADDRESS 107 N.Commacial St., Spiogdgoq AR 72764 ESTATE APPRAISED Fee Simple AREA OF SUBJECT PROPERTY 6.58 saes ESTIMATED FAIR MARKET VALUE OF THE PROPERTY: Land $286,000 Impm'emmts s 0 Total $286,000 FAIR MARKET VALUE OF SUBJECT PROPERTY $286.000 As otthe 29`ofAugug 2001 ALLOCATION OF FAIR MARKET VALUE OF SUBJECT PROPERTY Fee Simple 6.58 Acres ® $43,500/Aae = $ 286,230 Say $286,000 Trees Inducted in Fee Simple Land Value $ 0 Improvements: Nom $ 0 Total Iand, Trees, & Impovemeots s a . Total Value $286,000 Say $286,000 r ,$'7 51:..:: 'i• l k FAYETTEVLLLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE TO: Mayor Coody and City Council THRU: Ted Webber, Administrative Services Directdr FROM: Stephen Davis, Budget Managef� DATE: October 19, 2001 SUBJECT: Gregg Street Right -Of -Way (ROW) Purchase - Options Staff has reviewed the existing project listings and remaining funds for capital improvements budgeted for 2001 in the Street Improvements and Water & Sewer Improvements project areas. The purpose was to find funds that could be used to purchase the Gregg Street ROW. The funding needed to purchase the ROW for Gregg Street is approximately $270,000. Below is a listing of projects that are either completed or have been delayed. The information below lists the project number, project name, project status and if the project is complete, where the remaining funds were planned to be applied. Pri # Project Name 95071 HWY. 16 West Widening 97023 Poplar St. Improvements 97025 Intersection Improvements 97029 Sunbridge Ext. -Villa to College Completed Projects Remaining Funding 1,640 97030 Sycamore St. - Leverett to Garland Project Status Project is complete. 66,266 Project is complete and remaining funds were programed for the Dickson St. Project. 19,406 Project is complete and remaining funds were programed for the Dickson St. Project. 19,643 Project is complete and remaining funds were programed for the Dickson St. Project. 60,401 Project is complete and remaining funds were programed for the Dickson St. Project. H:\BUDGET\PROJECrS\Bud_Adj\BA_2001\gregg street ROW funding options.wpd 98031 Plainview Avenue Improvements 8,266 Project is complete a n d remaining funds were programed for the Dickson St. Project. 98032 Rupple Road Area Street Imp. 128,376 Project is complete a n d remaining funds were programed for the Dickson St. Project. 97027 Old Missouri Road/Zion Intersect. 23,811 Project is complete a n d remaining funds were programed for the Fayetteville Multi -Use Trails Project. 99060 Arkansas Avenue Improvements 6,582 Project is complete a n d remaining funds were programed for the Fayetteville Multi -Use Trails Project. 99083 Cleveland Street Sidewalk Imp. 41,302 Project is complete and remaining funds were programed for the Fayetteville Multi -Use Trails Project. Projects Delayed Pending Project Scope Revision Pri # Project Name Remaining Funding 01011 Cleveland Street 796,800 01023 Mt. Sequoyah W/S System Upgrade 405,000 Project Status Project is funded in the Sales Tax Capital Improvement Fund and is awaiting the start of the Garland Project by AHTD. Project is funded in the Water& Sewer Fund and is currently being evaluated for in-house design. 00050 Old Missouri Road Improvements 1,234,710 Project is funded in the Sales Tax Capital Improvement Fund and is awaiting a committee decision on design. 00026 HWY. 62 West - WL Replacement 825,000 H:\BUDGETPROJECTS\Bud_Adj\BA_2001\gregg street ROW funding options.wpd Project is funded in the Water & Sewer Fund and is being evaluated to determine if it is a needed project. A budget adjustment authorizing the transfer of funds between projects or funds will be necessary. Staff proposes to either reduce an existing listed street project by $270,000 and partially replenish the funds from the 2002 capital budget or to move the Garland Street Water & Sewer Relocation project from the 2001 Sales Tax Capital Improvements Fund to the Water & Sewer Fund. This reduction in water & sewer projects in the 2001 Sales Tax Capital Improvement Fund will provide the funding needed to purchase the Gregg Street ROW. The water & sewer project selected would be reduced by $270,000. An additional option is available to City Council. City Council could authorize the sale of the property on Highway 45 East from the Water & Sewer Fund to the Parks Development Fund for the offer price of $305,001.01. The funding for the purchase could come from project number 96091, Park Land Acquisitions. The project has $59,533 remaining of the 2001 budget and an additional $250,000 proposed for 2002. H:\BUDGET\PROJECTS\Bud_Adj\BA_2001\gregg street ROW funding options.wpd FAYETTEVILLE THE CITY OF FAYETTEVILLE. ARKANSAS DEPARTMENTAL CORRESPONDENCE DATE: October 4, 2001 TO: Fayetteville City Council Thru: Dan Coody, Mayor Greg Boettcher, Public Work Director Jim Beavers, City Engineer; FROM: Ed Connell, Land Agent RE: Purchase of Railroad ROW for Gregg Ave. Expansion In the very near future, the City is faced with a roadway expansion along Gregg Avenue, from Township Road north to the current four lane just south of Mud Creek bridge, a distance of almost 2 miles. At this time, the City has an opportunity to acquire 25 foot of railroad right of way from Arkansas and Missouri Railroad Company, all along Gregg Avenue from Poplar Street to the area just south of the new Mud Creek bridge. Gregg Avenue, from Township Road to the by-pass (Hwy 71) is State highway and the AHTD will be doing the design work on this section, however, the City is required to furnish the additional right of way. Gregg Avenue, north of the By-pass (Hwy 71), is a City street. This section is currently being surveyed by the AHTD and will be designed by them for the City of Fayetteville. In both of these sections, getting additional right of way from the railroad is simpler and much less expensive than getting the additional 25-35 feet, all from the East side where it would interfere with major fence work, house trailers and houses. The railroad wanted to sell the 25' ROW to the City down to Poplar Street and we would like to obtain that portion as well, primarily for utility purposes, thus it is included in this proposed acquisition. Included herewith is a copy of fully executed Offer and Acceptance Contract between the City and the Arkansas and Missouri Railroad Co. for the purchase of 6.58 acres of 25' ROW for a price of $263,200.00. This represents $40,000 per acre. Included also is a copy of the Summary page of a recent independent appraisal based on this acquisition. The value of the acquisition was appraised at $43,500 per acre. An appraisal of this nature is very subjective since the land, being next to a roadway, cannot be used for anything except for railroad purposes, utilities or road expansion. Prices of land in the general area are considerably more expensive and the cost to the City, if all of the right of way for the road expansion had to come from the East side of Gregg Street, would be considerably more than the amount considered here. The City is appreciative of the Arkansas and Missouri Railroad for giving consideration to our proposal in an effort to minimize the affect on properties and people on the East side of Gregg. While this will not eliminate the need for some additional right of way off of the East side, it does reduce the major affect. Staff encourages Council members to approve this contract and the purchase of said right of way from Arkansas and Missouri Railroad. This is a good deal for the City and the citizens of Fayetteville"and will d f 5 let the City and Highway Dept. get onto this project as soon as possible. information from Mr. Boettcher concerning scheduling, among other items, for these projects. FAYETTEVILLE THE CITY OF FAYE7TEVIII E, ARKANSAS DEPARTMENTAL CORRESPONDENCE TO: Jim Beavers, City Engineer Copy: Members of Street Committee Mayor Dan Coody Ed Connell, Land Agent Kit Williams, City Attorney Perry Franklin, Traffic Superintendent Randy Allen, Street Maintenance Superinte dent FROM: Greg Boettcher, P.E. Public Works Director DATE: September 28, 2001 SUBJECT: Gregg Avenue Widening and Improvement Preliminary Schedule/R.O.W. Acquisition Attached please find a copy of a letter dated September 19, 2001 from the Arkansas Highway and Transportation Department. It appears that the design of the Gregg Avenue Improvements (by AHTD) shall not commence before 2004, therefore construction may not occur until 2005/2006. The City of Fayetteville shall need to proceed with the interim traffic control measures along Gregg Avenue on the basis of these measures being utilized for several years. While it may be several years before the actual widening and improvement construction occurs, it is recommended that the Street Committee/City Council consider the acquisition of 25 feet of right-of-way from the Arkansas -Missouri Railroad (along the south side of Gregg Avenue). Such acquisition Pbt represents a sizable expenditure (approximately $265,000.00), however the costs of securing a ti comparable right -of --way width on th no side of Gregg Avenue will be much more costly and will significantly impact properties on thiort8 side of this highway. It is to be clearly noted that the 25 foot right -of --way from the Arkansas -Missouri Railroad shall not eliminate the need for right-of-way from the o side, but rather shall reduce the extent of additional land needed and shall minimize tiThdverse impactsthS properties. Actual right -of --way needs shall not be known until the AHTD omp etes preliminary designs. Since the management of Arkansas -Missouri Railroad is currently receptive to the sale of right-of-way, such action should be considered by the Street Committee/City Council. The City's land agent is currently developing the necessary documents to effect this land transaction, which materials may be presented for consideration in the not too distant future. Should there be any questions on this matter, please feel free to contact either Mr. Ed Connell or myself. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT SEP 24 2001 Dan Flowers Director Telephone (501) 569-2000 September 19, 2001 The Honorable Dan Coody Mayor of Fayetteville 113 West Mountain Fayetteville, AR 72701 Dear Mayor Coody: P.O. Box 2261 Little Rock, Arkansas 72203-2261 Telefax (501) 569-2400 Reference is made to your recent letter concerning the improvement of Gregg Avenue in Fayetteville. The City's offer to handle right of way and utility costs associated with the Gregg Avenue improvement and to accept the road into the City Street system after improvement is both noted and appreciated. I would like to address two issues related to this matter. First, from the Department's perspective, transfer of the State Highway section of Gregg Avenue (Highway 180) to the City should include that portion of Township Road (Highway 180) which currently connects Gregg Avenue to College Avenue (Highway7IB). The second issue is that of scheduling. While improvement of Gregg Avenue may be included in the regional 2025 plan for Northwest Arkansas, this work is not currently in the Department's work program. Department funds are committed through 2003 to the work set out in the 2001-2003 Statewide Transportation Improvement Plan. Improvement of Gregg Avenue could not be scheduled before 2004 at the earliest. Our staff will contact you in the near future to further discuss this work with you. Thank you for your early coordination. 1ej Y, k2%� be Robert L. Walters Chief Engineer cc: Commissioner Jonathan Barnett Director • STAFF REVIEW FORM • X AGENDA REQUEST CONTRACT REVIEW GRANT REVIEW For the Fayetteville City Council meeting of October 16.2001 FROM: ACTION REQUIRED: The passage of a resolution approving the Offer and Acceptance Contract between the City of Fayetteville and The Arkansas and Missouri Railroad Company, dated October 4, 2001, for the purchase of 6.58 acres of railroad right of way (25 ft. wide) along the East side of Gregg Avenue, from Poplar Street to the four lane South of the new bridge on Mud Creek, for a price of $263,200. Approval includes purchase price plus associated closing costs. COST TO CITY: 263 200 Cost o this Request s $ 270,000 Category/Project Bu Budget Gre Ave. !mixovemeni—Township to Mud Creek Category/Project Name 4470-9470-5805.00 $_-0- Account Number Funds Used i Date Program Name 01057-30 Project Number $ -0- RemalntngBaalance Fund BUD ET REVIEW: _ Budgeted Item Budget Adjustment Attached get oor matorAdministrative Services Director CONTRACT/C RANT/LEASE REVIEW: 'O/s ate o/ ate ID 5 b ate GRANTING AQENCY: nt aAuditor ADA Coordinator (O10501 Date Date STAFF RECOMMENDATION: Staff recommends approval of this contract and the purchase of said right of way for the forthcoming expansion of Gregg Avenue to four lanes with signals, from Township to the bridge at Mud Creek. This acquisition will reduce the amount of right of way required from the East side of Gregg Ave. and will result in a considerable cost savings if all the ROW was req'd. from the East side. Funds for this acquisition will be made available, indirectly, from the sale of property on Hwy 45 ($305,000). 1jy�ilaa /0. y -DI D ision ea mate Cross Reference id —q —of New Item: Yes No Date _________ � Prev Ord/Res #: a Orig Contract Date: ate • • Page 2 STAFF REVIEW FORM Description Purchase of 6.58 acres Railroad ROW along Gregg Ave. Meeting Date October 16, 2001 Comments: Reference Comments: Budget Coordinator Accounting Manager City Attorney Purchasing Officer ADA Coordinator Internal Auditor FAYETTEVItLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Ed Connell, Engineering From: Heather Woodruff, City Clerk Date: November 9, 2001 Attached is a copy of Resolution No. 151-01 approving the offer and acceptance contract for the purchase from the Arkansas and Missouri Railroad Company. The original will be microfilmed and filed with the City Clerk. cc: Nancy Smith, Internal Audit 010 03 Update Document Reference Date RES 11062001 23ty of Fayetteville Index Maintenance , It Action 11/20/2001 7:28:46 Ref. Taken Brief Description 151 PURCHASE ACRES/ARK. & MISSOURI RR Enter Keywords ........: RES. 151 CONTRACT 6.58 ACRES EXPANSION GREGG AVENUE ARKANSAS AND MISSOURI RAILROAD LANE TOWNSHIP File Reference #......• Security Class........: Expiration Date.......: Date for Cont/Referred: Name Referred to......: Retention Type: **** Active Cmdl-Return Cmd8-Retention Cmd4-Delete Cmd3-End Press 'ENTER' to Continue Cmd5-Abstract Yes No (c) 1986-1992 Munimetrix Systems Corp. EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; Qii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim, which arises out of the transaction vesting in the Insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. CONDITIONS AND STIPULATIONS DEFINITION OF TERMS. The following terms when used in this policy mean: (a) "insured": the insured named in Schedule A, and, subject to any lights or defenses the Company would have had against the named insured, those who succeed to the interest of the named insured by operation of law as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representa- tives, next of kin, or corporate or fiduciary successors. (b) "insured claimant": an insured claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart constructive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule (A), and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule (A), nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (f) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall also incude environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "unmarketability of the fide": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this policy shall continue in force of Date of Policy in favor of an insured only so long as insured retains an estate or interest in the land, or holds arr indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in farce favor of any purchaser from the insured of either (i) an es or interest in the land, or (ii) an indebtedness secured b purchase money mortgage given to the insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT. The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the fide to the estate or interest, as insured, and which might cause loss or damage for which the company may be liable by virtue of this policy, or (iii) if title to the estate or interest, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE. (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or en- cumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Companys expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized rep- resentative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and mem- oranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary informa- tion from third parties as required in this paragraph, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY. In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. Upon the exerciseeby the Company of this option liability and obligations td the insured under this policy, a than to make the payment required, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the insured Claimant. (i) to pay or otherwise settle with other parties or in the name of an insured claimant any claim insured against under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Com- pany's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A; or (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the full consideration paid for the land, whichever is less, or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A, then this Policy is subject to the following: (i) where no subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that the Amount of Insurance at Date of Policy bears to the total value of the insured estate or interest at Date of Policy; or (ii) where a subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement. The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses for which the Company is liable under this policy, and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A. (c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these conditions and Stipulations. 8. APPORTIONMENT. If the land described in Schedule (A) (C) consists of two or more parcels which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a pro rata basis as if the Amount of Insurance under this policy was divided pro rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made sub- sequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Companys consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY. All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto. 11. LIABILITY NONCUMULATIVE. It is expressly understood that the Amount of In- surance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. 12. PAYMENT OF LOSS. (a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT. (a) The Companys Right of Subrogation. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all lights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The insured claimant shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies in the proportion which the Company's payment bears to the whole amount of the loss. If loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, it any, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. (b) The Company's Rights Against non -Insured Obligors. The Company's right of subrogation against non- insured obligors shall exist and shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subrogation rights by reason of this policy. 14. ARBITRATION. Unless prohibited by applicable law, either the Com- pany or the insured may demand arbitration pursuant to the Tide Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of Insurance is $1,000,000 or less shall be arbitrated at the option of either the Company or the insured. All arbitrable matters when the Amount of Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the insured. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT. (a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Company. In interpret- ing any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 16. SEVERABILITY. In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against 9. LIMITATION OF LIABILITY. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the comple- tion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable 17. NOTICES, WHERE SENT. N notices required to be given the Company and any statement in writing required to be furnished the Company shag indude the number ol this policy and shat be addressed to the Company at t First American Way. Santa Ma, Calilomia 92707, w to the office which issued this policy.