HomeMy WebLinkAbout108-07 RESOLUTIONRESOLUTION NO. 108-07
A RESOLUTION TO APPROVE THE PURCHASE OF ABOUT
13.75 ACRES FOR A CITY PARK TO BE NAMED THE
BROOKS-HUMMEL NATURE PRESERVE IN THE AMOUNT
OF $495,000.00 AND TO SELL THE FAYETTEVILLE
NATURAL HERITAGE ASSOCIATION A CONSERVATION
EASEMENT ON THIS PROPERTY FOR $179,500.00; AND
APPROVE A BUDGET ADJUSTMENT IN THE AMOUNT OF
$495,000.00.
WHEREAS, the Fayetteville City Council passed Resolution No. 52-07 on March 20,
2007, authorizing the Mayor to negotiate for the purchase of about 13.75 acres from the Forrest
F. Brooks Revocable Trust for up to $495,000.00 if the neighbors and the Fayetteville Natural
Heritage Association would purchase a conservation easement from the city for this land for
$179,500.00; and
WHEREAS, the Fayetteville Natural Heritage Association and adjoining neighbors have
already raised $167,000.00 which can be used as the down payment for this property; and
WHEREAS, Amendment 78 of the Arkansas Constitution allows a city to finance short
term (five years or less) debt and the seller has agreed to carry the note and mortgage at 6% per
annum for five years, compounded annually (with five equal annual payments); and
WHEREAS, the seller has agreed to further convey a twelve (12) foot wide access
easement from Hillcrest Avenue to this property along the north side of the Brooks' residential
lot at 1602 Hillcrest Avenue.
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 Real Estate Contract attached as Exhibit "A" to this Resolution and agrees to purchase the
Forrest F. Brooks Revocable Trust's approximately 13.75 acres for $495,000.00 as set forth in
that contract. The City Council further explicitly agrees to sell a conservation easement to the
Fayetteville Natural Heritage Association on this property for $179,500.00 and to name the
property the "Brooks -Hummel Nature Preserve".
Page 2
Res. 108-07
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
Mayor Coody to sign all documents: contracts, deeds, mortgages, notes, etc. necessary to fulfill
the terms of the Real Estate Contract.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby approves
the attached budget adjustment in the amount of $495,000.00. �```RtitITR"'''�,,
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PASSED and APPROVED this 5th day of June, 2007.
APPROVED:
By:
ATTEST:
D N COODY, Mayor
By:
SONDRA E. SMITH, City Clerk/Treasurer
City of Fayetteville, Arkansas
Budget Adjustment Form
Budget Year
2007
Department: Sales Tax Capital Improvements
Division:
Program:
Date Requested
6/5/2007
C. 6
Brooks -Hummel Nature Preserve
C10
Adjustment Number
Project or Item Added/Increased:
$495,000 is being requested in the Land Acquistion
account for the Brooks -Hummel Land Purchase.
Project or Item Deleted/Reduced:
To recognize $167,000 from a donation from the
Fayetteville Natural Heritage Association.
To recognize $328,000 in Installment Sale Proceeds
related to the five annual installments of the purchase.
Justification of -this Increase:
The $495,000 is for the purchase of 13.75 acres from the
Forrest F. Brooks Recocable Trust
Justification of this Decrease:
Increase Expense Budget (Decrek\
ti
Account Name Account NumbA
60 -
Project Number
Land acquisition 4470 9470. 580. d" $��'. �. 07027 1
Account Name
Decrease Expense Budget (Increase Revenue Budget)
Account Number Amount
installment Sale Proceeds
Donations
Project Number
4470 0947. 6884 04 328,000 07027 1
4470 0947 4809 00 167,000 07027. 1 ,
Approval Signatures
4bui
Department Director
Date
Date
Finance & Internal Services Director
Mayor
Date
Date
Budget Office Use Only
Type: A B C E
Posted to General Ledger
Posted to Project Accounting
Entered in Category Log •
Initial Date
Initial Date
Initial Date
REAL ESTATE SALES CONTRACT
1. The City of Fayetteville, Arkansas, offers to buy, and the undersigned Trustee of the
Forrest F. Brooks Revocable Trust Under Agreement Dated March 26, 2004,
hereinafter also referred to as "Seller," offers to sell, subject to the terms and conditions set
forth in this contract, approximately 13.75 acres, more particularly described in Exhibit "A"
attached hereto and made a part hereof, hereinafter also referred to as the "Property."
SEE ATTACHED EXHIBIT "A" FOR PROPERTY DESCRIPTION
2. Purchase Price: The full purchase price for the Property is Four Hundred Ninety -Five
Thousand Dollars ($495,000.00). Subject to the following conditions and the approval of the
Fayetteville City Council, the City of Fayetteville shall pay for the Property at closing the
total cash payment of One Hundred Sixty -Seven Thousand Dollars ($167,000.00) and
execute a promissory note, in the form set forth on Exhibit "B" attached hereto, to pay the
remaining Three Hundred Twenty -Eight Thousand Dollars ($328,000.00) with interest at Six
Percent (6.00%) per annum, in five equal payments payable annually on the first day of
July, with the first installment due and payable on July 1, 2008, and the last installment
becoming due and payable on July 1, 2012.
3. Conveyance will be made to the City of Fayetteville by Trustee's Warranty Deed, reflecting
on its face a vendor's lien, in the form set forth on Exhibit "C" attached hereto, except it shall
be subject to recorded instruments and easements, if any, which do not materially affect the
value of the Property. Such conveyance shall include mineral rights owned by Seller.
4. Seller shall furnish a policy of title insurance in the amount of the purchase price from a title
insurance company selected by the City of Fayetteville, the cost of which shall be divided
equally between Seller and the City of Fayetteville.
5. Seller will provide any survey it currently has to the City of Fayetteville. However, Seller
shall not be required to have a survey performed for the City of Fayetteville. Seller agrees to
allow the City of Fayetteville, if the City of Fayetteville so desires, at the City's expense, to
survey the Property. Seller may cure any title problems which result from any differences
between the recorded legal descriptions of the Property and the survey description. Said title
problems, if any, must be resolved prior to closing to the satisfaction of the City of
Fayetteville; provided, however, Seller may unilaterally rescind this contract if, in Seller's
sole discretion, the title problems are too expensive to resolve.
6. Taxes and special assessments due on or before closing shall be paid by Seller. General
taxes, ad valorem taxes, and special assessments shall be prorated as of closing.
1
7. The closing of the transaction contemplated by the undersigned parties to this contract shall
occur on or before June 29, 2007, unless both parties agree in writing to extend the closing
date or the contract is rescinded by either party hereto.
8. Possession of the Property shall be delivered to the City of Fayetteville on the date of closing.
9. Seller hereby grants permission for the City of Fayetteville or its designates to enter the
Property and improvements for the purpose of inspection and/or surveying.
10. Risk of loss or damage to the Property by fire or other casualty occurring up to the time of
closing is assumed by Seller; provided, however, if Seller sustains any material damage to the
Property which adversely affects the value of the Property, either party may unilaterally
rescind this contract.
11. To the best of Seller's knowledge, there are currently no environmental hazards on the
Property which materially affect the value of the Property. Seller shall sell and convey the
Property "AS IS" to the City of Fayetteville. At any time before Closing, the City of
Fayetteville or its agents may enter the Property in order to conduct one or more
environmental surveys of the Property. If any environmental hazard is discovered, Seller may
either cure such environmental hazard at Seller's expense or either party may unilaterally
rescind this contract.
12. The City of Fayetteville agrees to name the Property the "Brooks -Hummel Nature
Reserve."
13. The City of Fayetteville agrees to convey a conservation easement on the Property to the
Fayetteville Natural Heritage Association, Inc. for $179,500.00. This conservation easement
shall be substantially in the same form as the one proposed for Mount Sequoyah Woods.
14. The City of Fayetteville shall receive full credit against the cash due at closing ($167,000.00)
and final purchase price ($495,000.00) of the $8,000.00 paid by the neighbors or Fayetteville
Natural Heritage Association as earnest money or for an option to purchase.
15. Seller agrees to convey a permanent access easement twelve (12) feet in width connecting
this Property to Hillcrest Avenue along the north side of Seller's residential lot situated at
1602 Hillcrest Avenue, Fayetteville, Arkansas.
16. This agreement shall be governed by the laws of the State of Arkansas..
17. This agreement, when executed by both Seller and the City of Fayetteville 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.
CITY OF FAYETTEVILLE
A Municipal Corporation
By:
AN COODY
Mayor
Date: (Vhie
Date:
4/7/87
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FAYETTEVILLE;
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FORREST F. BROOKS REVOCABLE
TRUST UNDER AGREEMENT DATED
MARCH 26, 2004
By:
Date:
Betty Hu el, Trustee
Agent or Witness:
3
Date:
State of Arkansas
)ss.
County of Washington
ACKNOWLEDGMENT
Before me, a duly commissioned and acting Notary Public in and for said State and
County, on this date personally appeared Betty Hummel, who stated that she is the sole Trustee
of the Forrest F. Brooks Revocable Trust Under Agreement Dated March 26, 2004, and was
duly authorized in that capacity to so execute and seal the foregoing Real Estate Contract for and
in the name and on behalf of said Trust for the consideration and purposes therein mentioned and
set forth. In witness thereof, I have hereunto set my hand and seal this June 2007.
My Commission Expires:
ARY PUBLIC
ACKNOWLEDGMENT
STATE OF ARKANSAS
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
to me well known as the person who executed the foregoing
document, and who stated and acknowledged that they are the Agent or Witness of Seller and are
duly authorized in their respective capacities to execute the foregoing instrument for and in the name
and behalf of said trust, 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 June, 2007.
Notary Public
My Commission Expires:
ACKNOWLEDGMENT
STATE OF ARKANSAS
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
Sondra Smith, 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
My Commisslon Expires:
day of June, 2007.
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
A PART OF THE NE14 OF THE NW14 OF SECTION 10, TOWNSHIP 16 NORTH, RANGE
30 WEST, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT
THE SOUTHWEST CORNER OF SAID FORTY ACRE TRACT FOR THE POINT OF
BEGINNING AND RUN THENCE N0°32' 15"W ALONG THE WEST LINE OF SAID
FORTY 851.78 FEET; THENCE N89°0' 19"E 483.79 FEET TO A FOUND STONE; THENCE
N0°24'15"W 139.45 FEET TO A FOUND IRON PIN; THENCE N89°30'24"E 263.98 FEET
TO A FOUND IRON PIN; THENCE S0°55'55"E 376.00 FEET; THENCE S0°22'51"E 609.85
FEET TO THE SOUTH LINE OF SAID FORTY; THENCE S88°37'27"W ALONG SAID
SOUTH LINE 626.45 FEET TO THE POINT OF BEGINNING AND CONTAINING 13.75
ACRES, MORE OR LESS, WASHINGTON COUNTY, ARKANSAS.
SUBJECT TO A SEWER LINE EASEMENT TO THE CITY OF FAYETTEVILLE WATER
AND SEWER DEPT. AND ANY OTHER RIGHT OF WAYS AND\OR EASEMENTS OF
RECORD.
(This is not scrivener's legal description)
6
111111111111111111111111111111
111111111 llll llll
Doc ID: 011305240003 Type REL
Recorded: 06/29/2007 at 11:57:07 AM
Fee Amt: $14.00 Paae 1 of 3
Washington County. AR
Bette Stamps Circuit Clerk
Fi1e2007-00024964
TRUSTEE'S DEED WITH VENDOR'S LIEN
KNOW ALL MEN BY THESE PRESENTS: That I, Betty Hummel as Successor
Trustee of the Forrest F. Brooks Revocable Trust Under Agreement Dated March 26,
2004, hereinafter referred to as "Grantor," in exchange for the sum of One Dollar ($1.00)
and other good and valuable consideration in hand paid by the City of Fayetteville,
Arkansas, hereinafter called "Grantee," of which amount the balance of Three Hundred
Twenty -Eight Thousand Dollars ($328,000.00) shall be paid by Grantee as set forth below,
and a Vendor's Lien to secure the same is hereby expressly retained on the real property
hereinafter described, do hereby GRANT, BARGAIN, SELL and CONVEY unto said
-3 Grantee, and said Grantee's successors and assigns, the following described real property
Ss situate in the Washington County, Arkansas, to -wit:
LEGAL DESCRIPTION FOR THIS INSTRUMENT IS AS SET FORTH WORD FOR WORD
ON EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE
(This is not scrivener's legal description)
3 To have and to hold the said land and appurtenances thereunto belonging unto the said
Grantee, and Grantee's successors and assigns, forever, subject to the Vendor's Lien
expressly retained herein to secure payment of the balance of the purchase price. And I,
said Grantor, hereby covenant with Grantee that I am lawfully seized of said land, that
the same is unencumbered except for the Vendor's Lien reserved herein and other
easements and encumbrances of record, and warrant that I will forever defend the title to
the said land against any and all legal claims whatsoever.
As stated hereinabove, the conveyance of the above-described real property is
expressly subject to a Vendor's Lien in favor of Grantor, and Grantor's successors and
assigns, which Grantee is bound and obligated to satisfy in full before said lien will be
released. The Vendor's Lien shall secure payment to Grantor, and Grantor's successors
and assigns, pursuant to one purchase money promissory note executed on even date
herewith, the terms of which are as follows: Grantee shall pay Grantor -the sum of Three
Hundred Twenty -Eight Thousand Dollars ($328,000.00) plus interest accruing at the rate of
Six Percent (6.00%) per annum, in five equal annual payments, on the first day of July, the
first becoming due and payable on July 1, 2008, and the last payment becoming due and
payable on July 1, 2012. If Grantee breaches any obligation under the said purchase
money promissory note, Grantor shall have the right to declare the entire unpaid principal
balance, plus all interest accrued thereon, due and payable at once and to enforce the
payment thereof. The conveyance of the above-described real property shall not become
absolute until the purchase money promissory note and all interest accrued thereon, and
any and all other amounts due to Grantor or to the legal holder of the note as herein
provided, shall have been fully paid off and discharged. It is further understood and
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agreed that all rights and privileges hereby granted to, or reserved by, Grantor shall inure
to the benefit of, and may be exercised by, Grantor's heirs, successors and assigns, or by
any legal holder of the purchase money promissory note.
WITNESS my hand and seal on this June? , 2007.
This instrument prepared by:
LUSHBAUGH LAW FIRM, LTD.
418 W. Meadow Street
Fayetteville, AR 72702 479-521-2323
ACKNOWLEDGMENT
State of Arkansas )
)ss.
County of Washington }
Before me, a duly commissioned and acting Notary Public in and for said State
and County, on this date personally appeared Betty Hummel, who stated that she is the
sole Trustee of the Forrest F. Brooks Revocable Trust Under Agreement Dated
March 26, 2004, and was duly authorized in that capacity to so execute and seal the
foregoing instrument for and in the name and on behalf of said Trust for the consideration
and purposes therein mentioned and set forth. In witness thereof, I have hereunto set my
hand and seal this Juneo?q. 2007.
My Commission Expires:
7/0W/A
OFFICIAL SEAL
ELEP ;':'-OR E. PARIZEK
NOTARY I LIBLIC . ARKANSAS
WASH:. :3'TON COUNTY
EXHIBIT "A"
LEGAL DESCRIPTION
A PART OF THE NE 1/4 OF THE NW 1/4 OF SECTION 10, TOWNSHIP 16 NORTH,
RANGE 30 WEST, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHWEST CORNER OF SAID FORTY ACRE TRACT FOR THE
POINT OF BEGINNING AND RUN THENCE N 0°32'15" W ALONG THE WEST LINE OF
SAID FORTY 851.78 FEET; THENCE N 89°0'19" E 483.79 FEET TO A FOUND STONE;
THENCE N 0°24'15" W 139.45 FEET TO A FOUND IRON PIN; THENCE N 89°3024" E
263.98 FEET TO A FOUND IRON PIN; THENCE S 0°55'55" E 376.00 FEET; THENCE S
89°32'32" W 122.64 FEET; THENCE 5 0°22'51" E 609.85 FEET TO THE SOUTH LINE OF
SAID FORTY; THENCE S 88°3727" W ALONG SAID SOUTH LINE 626.45 FEET TO THE
POINT OF BEGINNING AND CONTAINING 13.75 ACRES, MORE OR LESS,
WASHINGTON COUNTY, ARKANSAS.
SUBJECT TO A SEWER LINE EASEMENT TO THE CITY OF FAYETTEVILLE WATER
AND SEWER DEPT. AND ANY OTHER RIGHT OF WAYS AND\OR EASEMENTS OF
RECORD.
AND ALSO
A TWELVE (12) FEET WIDE EASEMENT, FOR THE PURPOSES OF INGRESS AND
EGRESS FOR THE ABOVE-DESCRIBED REAL PROPERTY, ALONG THE NORTH
BOUNDARY LINE OF THE FOLLOWING DESCRIBED REAL PROPERTY: A PART OF
THE NW14 OF THE NW14 OF SECTION 10, TOWNSHIP 16 NORTH, RANGE 30 WEST,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE
NORTHEAST CORNER OF SAID FORTY ACRE TRACT; THENCE 50232'15"E 470.25
FEET TO THE POINT OF BEGINNING AND RUN THENCE S0232'15"E 189.75 FEET;
THENCE S89210'39"W 154.47 FEET; THENCE N0232'15"W 189.75 FEET; THENCE
N89210'39"E 154.47 FEET TO THE POINT OF BEGINNING AND CONTAINING 0.67
ACRES, MORE OR LESS, WASHINGTON COUNTY, ARKANSAS. SUBJECT TO THE
RIGHT OF WAY OF HILLCREST AVENUE ALONG THE WEST SIDE AND ANY OTHER
RIGHT OF WAYS ANDIOR EASEMENTS OF RECORD.
(This is not scrivener's Legal description)
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OWNER'S POLICY OF TITLE INSURANCE
Issued by Lawyers Title Insurance Corporation
awyers Title
Lawyers Title Insurance Corporation is a member of the
LandAmerica family of title insurance underwriters.
POLICY NUMBER
A75 -Z117716
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE
CONDITIONS AND STIPULATIONS, LAWYERS TITLE INSURANCE COPORATION, a Virginia 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 A,
sustained or incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance an the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company will also pay the costs, attorneys' fees and expense's incurred in defense of the title, as insured, but only to the extent
provided in the Conditions and Stipulations.
IN WITNESS WHEREOF, LAWYERS TITLE INSURANCE CORPORATION has caused its corporate name and seal to be hereunto affixed
by its duly authorized officers, the Policy to become valid when countersigned by an authorized officer or agent of the Company.
Attest:
Secretary
LAWYERS TITLE INSURANCE CORPORATION
By:
eA
EXCLUSIONS FROM COVERAGE
President
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; (iii) 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:
(a) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer;
or
(b) 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:
(i) to timely record the instrument of transfer; or
(ii) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor.
NM 1 PA 10
ALTA Owner's Policy (10/17/92)
Form 1190-74Z
ORIGINAL
Valid only if Schedules A and B are attached.
AGENT CASE NO. - 07-028994-500
DATE OF POLICY - JUNE 29, 2007, AT 11:57AM
AMOUNT OF INSURANCE - $495,000.00
SCHEDULE A
1. Name of Insured:
City of Fayetteville, Arkansas
2. The estate or interest in the land described herein and which is covered by this policy is:
OWNER'S POLICY
POLICY NO. - A75 -Z117716
Fee Simple
3. The estate or interest referred to herein is at Date of Policy of record in the insured:
City of Fayetteville, Arkansas
4. The land referred to in the policy is situated in the County of Washington„ State of Arkansas and described as follows:
A part of the NE 1/4 of the NW 1/4 of Section 10, Township 16 North, Range 30 West, being more particularly
described as follows: Commence at the Southwest corner of said Forty acre tract for the point of beginning and run
thence N 0°32'15" W along the West line of said Forty 851.78 feet; thence N 89°0'19" E 483.79 feet to a found stone;
thence N 0°24'15" W 139.45 feet to a found iron pin; thence N 89°30'24" E 263.98 feet to a found iron pin; thence S
0°55'55" E 376.00 feet; thence S 89°32'32" W 122.64 feet; thence S 0°22'51" E 609.85 feet to the South line of said
Forty; thence S 88°37'27" W along said South line 626.45 feet to the point of beginning and containing 13.75 acres,
more or Tess, Washington County, Arkansas.
Subject to a sewer line easement to the City of Fayetteville Water and Sewer Dept. and any other rights-of-way and/or
easements of record.
LAWYERS TITLE INSURANCE
CORPORATION
This policy is invalid unless the cover
sheet, Schedule A and Schedule B are
attached.
LENDERS TITLE COMPANY
1046 STEARNS ROAD
FAYETTEVILLE, AR 72703
Arkansas License No. IA -82
By v
Authorize ignatory
e20-077
Title Agent's License: SA82-82
SCHEDULE B
AGENT'S CASE NO. - 07-028994-500
This policy does not insure against loss or damage by reason of the following:
GENERAL EXCEPTIONS:
OWNER'S POLICY
POLICY NO. - A75 -Z117716
(1) Rights or claims of parties in possession not shown by the public records.
(2) Easements, or claims of easements, not shown by the public records.
(3) Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey or
inspection of the premises.
(4) Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not
shown by the public records.
SPECIAL EXCEPTIONS:
1. Loss arising from any Oil, Gas or Mineral interests, conveyed, retained, assigned or any activity on or damage to
the insured land caused by the exercise of sub -surface rights or ownership, including but not limited to the right
of ingress and egress for said sub -surface purposes.
2. Taxes and assessments for the year(s) 2007 and thereafter, which are not yet due and payable, plus any penalties
and interest which may accrue.
3. Any inaccuracy in the area, square footage, or acreage of land described in Schedule A. The Company does not
insure the area, square footage, or acreage of the land.
4. Right of Way/Easement in favor of the City of Fayetteville, Arkansas, and recorded in Book 510 at page 435, in
Washington County, Arkansas.
5. Right of Way/Easement in favor of the City of Fayetteville, Arkansas, and recorded in Book 533 at page 95, in
Washington County, Arkansas.
6. Right of Way/Easement in favor of the City of Fayetteville, Arkansas, and recorded in Book 533 at page 368, in
Washington County, Arkansas.
7. Any rights, easements, interests or claims which may exist by reason of or reflected by survey dated January 8,
2006, corrected June 25, 2007, by Gore Engineering & Land Surveying.
8. Terms and conditions of that certain Vendor's Lien by and between Betty Hummel as Successor Trustee of the
Forrest F. Brooks Revocable Trust Under Agreement Dated March 26, 2004 ("Seller") and the City of
Fayetteville Arkansas ("Buyer") dated June 29, 2007 and filed in the records of Washington County, Arkansas,
on June 29, 2007 as Instrument No. 2007-00024964, creating the estate or interest -hereby insured.
9. This policy does not insure or guarantee performance by the Seller, his/her/their/its heirs, successors, and/or
assigns under the terms of the aforementioned Vendor's Lien.
LAWYERS TITLE INSURANCE
CORPORATION
CONDITIONS AND
1. DEFINITION OF TERMS.
The following terms when used in this policy mean:
(a) "insured": the insured named in Schedule A, and, subject to any
rights 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 representatives, 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 Tines 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.
(1) "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
include 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 title": 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 as of Date of Policy in
favor of an insured only so long as the insured retains an estate or interest in
the land, or holds an 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 force in favor of any purchaser from the insured of either (i) an
estate or interest in the land, or (ii) an indebtedness secured by a 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 title 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 encumbrance 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 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
STIPULATIONS
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 Company's 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 (il) 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.
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 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
representative of the Company to examine, inspect and copy all records,
books, ledgers, checks, correspondence and memoranda 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 information from third
parties as required in this paragraph 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 exercise by the Company of this option, all liability and
obligations to the insured under this policy, other 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 for 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 Company'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.
CONDITIONS AND STIPULATIONS
(Continued)
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:
(1) 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 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 subsequent 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.
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
completion of any appeals therefrom, it shall have fully performed its
obligations with respect to that matter and shall not be liable for any loss or
damage caused thereby.
(b) In the event of any litigation, including litigation by the Company or
with the Company's 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 insurance 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 Company's 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 rights 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, if 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 Company or the insured
may demand arbitration pursuant to the Title 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 interpreting 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.
17. NOTICES, WHERE SENT.
All notices required to be given the Company and any statement in
writing required to be furnished the Company shall include the number
of this policy and shall be addressed to: Consumer Affairs Department,
P.O. Box 27567, Richmond, Virginia 23261-7567.
LENDERS TITLE
COM PANY
PRIVACY POLICY NOTICE
Dear Lenders Title Company Client:
AUG 03 2007
CITL" OF FAYE -7 tiViLLE
MAYOR'S OFFICE
The Financial Services Modernization Act recently enacted by Congress has brought many
changes to the financial services industry, which includes title companies. One of the changes is
that we are now required to explain to our customers the ways in which we collect and use
customer information.
The statement on the attached letter is the privacy policy of Lenders Title Company.
Protecting your information has always been a part of our business philosophy. We will
continue to protect the privacy, accuracy, and security of customer information given to us.
No response to this notice is required, but if you have questions, please write to us at:
l.tc - Privacy Policy.rtf
Lenders Title Company
8114 Cantrell Road, Suite 250
Little Rock, Arkansas 72227
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LENDERS TITLE COMPANY PRIVACY POLICY
What kinds of information we collect. Lenders Title Company's primary business is a title
insurance, closing, and escrow provider. We collect information about you (for instance, your
name, address, telephone number) and information about your transaction including the identity
of the real property that you are buying, selling, or financing. We obtain a copy of any deeds,
notes, or mortgages that are involved in the transaction. We may get this information from you,
the lender, attorney, or real estate broker that you have chosen. Our title insurance company then
obtains information from the public records about the property so that we can prepare a title
insurance policy and/or settlement statement, When we provide closing, escrow, title, or
settlement services, we may obtain your social security number and receive additional
information from third parties including appraisals, credit reports, land surveys, escrow account
balances, loan payoffs, and sometimes bank account numbers to facilitate the transaction. If you
are concerned about the information we have collected, please write to us.
How we use this information. The company giving or specifically adopting this notice does
not share your non-public, personal information with outside marketers. There's no need to tell
us to keep your information to ourselves because we share your information only to provide the
services requested by you or your lender, or in other ways permitted by law. The privacy laws
permit some sharing without your approval. We may share internally and with nonaffiliated third
parties in order to carry out and service your transaction, to protect against fraud or unauthorized
transactions, for institutional risk control, and to provide information to government and law
enforcement agencies. We are permitted by law to use certain information to identify and market
our own products to you that may be useful to you. This credit information about you is shared
only to facilitate your transaction or for other purposes permitted by law.
How we protect your information. We restrict access to nonpublic personal information about
you to those employees who need the information to provide products or services to you or to
other parties/providers to the particular transaction we are servicing. We maintain physical,
electronic, and procedural safeguards that comply with law to guard your nonpublic personal
infonnation. We reinforce the company's privacy policy with our employees.
Ltc - Privacy Policy.rtf
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