HomeMy WebLinkAbout137-09 RESOLUTIONRESOLUTION NO. 137-09
A RESOLUTION TO ACCEPT AND APPROVE THE CITY COUNCIL
SEWER COMMITTEE'S DECISION TO BEGIN CONSTRUCTION PLANS
FOR A 500,000 GALLON WATER STORAGE TOWER ON A PORTION
OF LOT 7 OF JOHN SMITH ADDITION
WHEREAS, the City Council Sewer Committee considered the scientific, legal,
practical and location issues to fulfill the City's demonstrated need for additional water
storage in the Mt. Sequoyah Pressure Plane during several lengthy meetings in 2008;
and
WHEREAS, the City Council Sewer Committee on August 21, 2008 unanimously
determined that the most cost effective, efficient, and safest solution is to build an
additional 500,000 gallon water tower on or near Hyland Park Phase II; and
WHEREAS, in response to some suggestions or proposals of some members of
the Hyland Park Homeowners Association, the City Council Sewer Committee asked
City staff to examine the possibilities and propose any other sites near Lot 22 of Hyland
Park Phase II which could be substituted for Lot 22 if the Hyland Park Homeowners
Association or other private entities obtained and dedicated such acceptable site to the
City of Fayetteville; and
WHEREAS, Jim Waselues was able to obtain an Offer and Acceptance
Agreement from Lovers Lane, LLC to sell an appropriate .66 acre lot for the
construction of the water tower for the lot's purchase price of $75,000.00 (which will be
paid by Mr. Jim Waselues, plus a donation of $125,000 of additional cost for the lot from
Lover's Lane, LLC to the City).
WHEREAS, during this Special City Council meeting, the City Council listened
to Fayetteville citizens, engineers, the Fayetteville Fire Chief, the Fayetteville Water and
Wastewater Director and other interested persons discuss the need for additional water
storage, domestic water pressure issues, water necessary for fire fighting capability, fire
insurance rate issues, hydraulic considerations for effectively serving residences on the
two mountains in the Mt. Sequoyah Water Pressure Plane, aesthetic issues, and the
historical record surrounding Hyland Park Phase II, its Final Plat and Lot 22.
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
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the Mt. Sequoyah Water Pressure Plane, which serves not only the
numerous homes on the upper level of Mt. Sequoyah, but also many horns and future
home sites on the mountain upon which Hyland Park and Stone Mountain
developments sit, is in urgent need of expanded water storage not only for adequate
pressure for domestic use, but for fire fighting water.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the most cost effective, efficient and safe location for additional water
storage is on or very near the top of the mountain occupied by Hyland Park Phase II.
Section 3: That the City Council of the City of Fayetteville, Arkansas, upon
acquisition of access from Canterbury at no cost to the City, hereby determines that
since Jim Waselues has offered to purchase any and all City rights by Quit Claim Deed
for Lot 22 for the $75,000.00 cash price of a .66 acre lot to be purchased from Lovers
Lane, LLC for $75,000.00 (plus Lover's Lane's additional donation of $125,000.00), and
since the .66 acre lot which can be obtained by the City at no out of pocket expense is
suitable, functional and less intrusive for the needed water tower, the City should agree
to these proposals, convey Lot 22 by quit claim deed to Mr. and Mrs. Waselues upon the
conveyance of the .66 lot split from Lot 7 of John Smith Addition and Jim Waselues's
payment of the $75,000.00 (less the $1,000.00 earnest money deposit).
PASSED and APPROVED this 16th day of June, 2009.
APPROVED: ATTEST:
B
y:
Lam• 1 ELD J M R ► , , Mayor
By:
#9,
S NDRA E. SMITH, City Clerk/Treasurer
`lilts! flit/jt,
.S1/41)s.°°a sG�i
I: ° ;\1Ym0F'•p.O.:
•
FAYETTEVILLE;
C.:,
'•1H114111 i W ►►
David Jurgens
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
6/9/2009
City Council Meeting Date
Agenda Items Only
Water & Wastewater
Division
Action Required:
Utilities
Department
Approval of a resolution to accept and approve the City Council Sewer Committee's decision to begin construction
plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II.
Cost of this request
5400.5700.5314.02
Account Number
04036-1
Project Number
Budgeted Item
EMI
2,189,147
Category / Project Budget
$
139,888
Funds Used to Date
2,049,259
Remaining Balance
Budget Adjustment Attached I
Mt Sequoyah Press Plane Imprvmt
Program Category / Project Name
Water and Wastewater
Program 1 Project Category Name
Water/Sewer
Fund Name
Dep. . ent Dector
Cit ey
Finance and Internal Services Director
O°1
Date
Previous Ordinance or Resolution # 151-04
Original Contract Date: 10/5/2004
Crov.e_ 2?l Original Contract Number:
Date
Date
ate
900
Received in City
Clerk's Office
Received in
Mayor's Office
Comments:
Revised January 15, 2009 �J
7 bled Jakob, ozovq Cc s Jam_po
STettefile
CITY COUNCIL AGENDA MEMO
Special City Council Meeting of June 9, 2009
To: Mayor Lioneld Jordan
Fayetteville City Council
Thru: Don Marr
From: David Jurgens, Utilities Director
Fayetteville Sewer Committee
Date: June 2, 2009
Subject: Approval of a resolution to accept and approve the City Council Sewer Committee's decision to
begin construction plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II
RECOMMENDATION
Staff recommends approval a resolution to accept and approve the City Council Sewer Committee's decision to
begin construction plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II.
BACKGROUND
Lot 22 of the Hyland Park Phase II subdivision was designated as the site for the water storage tank when the
subdivision plat was filed in July 1974, with the following statement on the plat: "Lot 22 has been approved by
the Planning Commission for construction of a water tower and is to become the property of the City of
Fayetteville."
DISCUSSION
At a Sewer Committee meeting on August 15, 2008, the Committee reviewed all viable tank alternatives and
directed staff to proceed with negotiations with the Hyland Park Homeowner's Association regarding a potential
land swap for another suitable property near the site. After information was sent to the HOA in September,
2008, no response was received from the HOA. In response to a letter sent by the City on 15 April, 2009, the
HOA stated their refusal to negotiate or support the City's actions in any way. Negotiations have recently
resumed, but a firm decision is required in order to proceed with tank construction.
Additional detail is included in the enclosed fact sheet.
A full presentation of the issues will be made at the City Council meeting.
BUDGET IMPACT
There is currently $2,049,259 in the impact fee fund and $128,549 in the Water/Sewer fund budgeted for this
project.
Mt Seq Tank CCMemo 9Jun09 2 of 2
•
aieevle
AflKAN 5A5
MAY 29, 2009
CONTACT: David Jurgens, P.E.
Utilities Director
479-575-8330
diurgens(a ci.fayetteville.ar.us
MT. SEQUOYAH PRESSURE PLANE WATER STORAGE FACT SHEET
General
The City of Fayetteville provides water to its customers to meet three basic needs in the
following priority order: domestic water consumption (including commercial and industrial
uses), fire protection, and irrigation. This service requires a combination of water storage tanks,
pump stations, and many miles of pipe.
Elevated water storage tanks, and pump stations to fill them, are required to provide adequate
water flow and pressure to higher elevations of town. These tanks, like the one on Mt. Sequoyah,
ensure consistent pressure and adequate volume to meet all three of the basic water needs. The
majority of our customers receive pressure from the primary pressure plane which contains 27
million gallons of water. Residents on the highest elevations in the City receive water from the
Mt. Sequoyah pressure plane, served by the tank on Skyline Drive, holding 250,000 gallons.
Residents on the higher area east of the City, in the area around Sassafras Road, are served by the
Gulley tank, holding 750,000 gallons of water. These relative elevations are shown below.
1800*
Mount Sequoyah 1815'
7800'
1700'
7700'
Comparison of Water Storage Elevations in Fayetteville
Mt. Sequoyah Pressure Plane Current Condition
In evaluating our system, the City identified a significant shortfall in the higher elevations
including the areas of Mt. Sequoyah, Hillcrest, Rockwood, Applebury, Ridgeway, Hyland Park,
and Canterbury. The entire affected area, shown on the attached map, contains 1,817 water
connections and 162 fire hydrants.
The largest impact of this shortfall is that the entire area has inadequate fire protection, especially
during summer peak water usage periods. The general residential fire protection requirement is
1,500 gallons per minute. At this time, fewer than 5% of the hydrants in this area can meet this
requirement during peak usage. The shortfall also impacts our ability to provide consistent
domestic water pressure and flow during summer peak usage periods. Customers at the highest
elevations have very low pressure and flow during these times.
r
aye eville
ARKANSAS
Mt. Sequoyah Pressure Plane Solution
To correct this shortfall, the City must build a water storage tank which will hold approximately
500,000 gallons to meet regulatory and industry design standards and meet water demand
requirements during hot weather. This tank must be located on a hilltop, as the water pressure in
our system is provided by gravity. The tank elevation is required to be 1815 feet above sea level,
to provide adequate pressure and match the existing elevated water storage tank on Mt.
Sequoyah, which is on this same system. Using ground storage tanks and/or pumps, both
separately and in combination, has been evaluated, and will not meet the requirements due to the
size of the area being served, the volume of water required, and the age of the existing water
piping system.
In July, 2005, McClelland Consulting Engineers developed a Preliminary Engineering Report of
alternatives; costs are shown below. The Arkansas Department of Health identified that our
current water storage of 250,000 gallons is approximately 25% of what is needed, and that
"additional storage needs to be constructed." The ADH letter of April 7, 2008 states "The Mt.
Sequoyah area does not have adequate storage for the water demand in the area and the city
needs to address the situation."
McClelland's report identified four possible locations and cost estimates, shown below and on
the attached map. These estimates are based on March 2008 prices. They do not include a
$450,000 - $660,000 pumping station that has to be installed no matter which alternative is
selected; nor do they include the cost of purchasing land.
Site General Location
Pipe Length
Height Required Cost
1 Hyland Park Phase 2 Platted Tower Lot 22 139' 2,900' $ 1,894,425
2 Skyline Dr. by existing Mt. Sequoyah Tank 101' 12,500' $ 3,845,760
3 South end of Crest Drive off Rockwood Tr. 109' 9,300' $ 3,413,035
4a NW of Hyland Park Phase 2 Tennis Court 143' 3,500' $ 2,126,740
From the water hydraulics/engineering perspective, sites 1 and 4a, on the top of Hyland Park
Hill, provide by far the best physical location as they place the storage closer to both the water
pump stations that fill the tanks and to the areas of greatest use, balancing the system and
providing the most reliable service. They also significantly reduce the amount of piping that
would have to be constructed throughout the entire area. With a tank and pump station on both
of the prominent hilltops in the system, storage is optimized to meet demand. Site 2, with the
new tank being located adjacent to the existing tank on Skyline Drive, is the least desirable
alternative. Close-ups of the approximate locations are shown in the attached aerial photos.
This project also has a significant impact on the City's overall fire protection, or ISO, rating,
which directly impacts homeowners' insurance prices. The City is currently at a 4 rating. By
adding fire stations, upgrading fire equipment, and improving the water system, we believe this
rating can be improved City-wide. Not having this water storage tank project underway would
probably negate the other improvements and keep the City at its current rating or cause the rating
to be degraded, causing insurance rates city-wide to increase.
Attachments: Mt. Sequoyah Pressure Plane Map with Tank Sites
Tank Site Close-up Aerial Photos
I
III Pill 11
yy if � - Yom'' a L,{�Lt � • ml v'
F frB xx � y y �� ,a tz"�od _ P rv. a 'r.y..e gym• ry,
L:FLS:cER :.E :Y"FRty ♦ L .f5t E
LCAIS MLA
ryusnt:biiave...c: a s uw, Jnr:
E01,7,,
,AtE, E n
)OW SON 4NMIL ,, S NE]F.,:a
1fnGlulnrMiCRCE: 4 .'. 57
Vr MI[r.sEt�e -sa SFR �4
hUaaF �-.fYM;
C:CNER�A 4C.CEE
1i .`F AIF -.r1X ryf Y:µ A"S NA'
DAC 734 s PAT -V....,4
AIte nat[\C N11.
AL
NORTH
w,,._atlr.'. t:vENIIV€. && .'.
wepOiq. ENEONI a CARTA
ta,LA RAYG.TTEE:1V.(14e 1,1-
COZO JI'NRGIk4SNNN&TE£OF
2A triL
ES
COCOAN WIGMRA.INN ESEC Gr. .r.E
NEEMI Edi.
-NN :.PN.s:, I.. unET
CO", ca,..1-, Es:LE aukar:sa
IIYLAII0 VLNN I;11EILLH11L4S�yyl�'.'S3
AASELUES SIM L 3]NN3
Alternative Nu. 4a
A GMARLEE Fli_£M> CES_ T
RLvsrr:E ANDREA..EANNE •31 .; .;.
NORTH
RESOLUTION NO.
A RESOLUTION TO ACCEPT AND APPROVE THE CITY
COUNCIL SEWER COMMITTEE'S DECISION TO BEGIN
CONSTRUCTION PLANS FOR A 500,000 GALLON WATER
STORAGE TOWER ON LOT 22 OF HYLAND PARK PHASE II
WHEREAS, the City Council Sewer Committee considered the scientific, legal,
practical and location issues to fulfill the City's demonstrated need for additional water
storage in the Mt. Sequoyah Pressure Plane during several lengthy meetings in 2008;
and
WHEREAS, the City Council Sewer Committee on August 21, 2008 unanimously
determined that the most cost effective, efficient, and safest solution is to build an
additional 500,000 gallon water tower on or near Hyland Park Phase II; and
WHEREAS, in response to some suggestions or proposals of some members of
the Hyland Park Homeowners Association, the City Council Sewer Committee asked
City staff to examine the possibilities and propose any other sites near Lot 22 of Hyland
Park Phase II which could be substituted for Lot 22 if the Hyland Park Homeowners
Association or other private entities obtained and dedicated such acceptable site to the
City of Fayetteville; and
WHEREAS, over eight months have elapsed since two alternate sites were made
known to the Hyland Park Homeowners Association which responded to Mayor
Jordan's "reminder" letter of April 15, 2009, about the "potential exchange
arrangement" with a clear refusal for any cooperation as the "unanimous position of
this Association"; and
WHEREAS, during this Special City Council meeting, the City Council listened
to Fayetteville citizens, engineers, the Fayetteville Fire Chief, the Fayetteville Water and
Wastewater Director and other interested persons discuss the need for additional water
storage, domestic water pressure issues, water necessary for fire fighting capability, fire
insurance rate issues, hydraulic considerations for effectively serving residences on the
two mountains in the Mt. Sequoyah Water Pressure Plane, aesthetic issues, and the
historical record surrounding Hyland Park Phase II, its Final Plat and Lot 22.
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
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the Mt. Sequoyah Water Pressure Plane, which serves not only the
numerous homes on the upper level of Mt. Sequoyah, but also many homes and future
home sites on the mountain upon which Hyland Park and Stone Mountain
developments sit, is in urgent need of expanded water storage not only for adequate
pressure for domestic use, but for fire fighting water.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the most cost effective, efficient and safe location for additional water
storage is on or very near the top of the mountain occupied by Hyland Park Phase II.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby
determines that since the Hyland Park Homeowners Association has refused and failed
to propose or convey any other scientifically and financially sound alternative to Lot 22
of Hyland Park Phase II, City staff should proceed with construction plans for a 500,000
gallon water storage tower on Lot 22 which Note 3 of the Final Plat of Hyland Park,
Phase 2 identified as: "3. Lot 22 has been approved by the Planning Commission for
construction of a water tower and is to become the property of the City of Fayetteville."
PASSED and APPROVED this 9th day of June, 2009.
APPROVED: ATTEST:
13y: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
LEGAL DEPARTMENT
TO: Dan Coody, Mayor
City Council
David Jurgens, Water & Wastewater Director,
FROM: Kit Williams, City Attorney
DATE: July 29, 2008
RE: Water tank site at Hyland Park
I. History of the Dedication to the City of the Water Tank Site
The Preliminary Plat for Phase II of the Hyland Park Subdivision was
reviewed on March 28, 1974 before the Plat Review Commission of the
Fayetteville Planning Commission. Jim Lindsey presented the plat which had been
substantially revised from an earlier submission. City employee `Bobbie Jones
said the site for water facilities should be shown some way. I would suggest
giving it a lot number with a note on the plat that that Lot has been approved by the
Planning Commission as a site for a water storage tank or however it is to be
used." ((Page 2 of the Minutes of Plat Review Committee of May 16, 1974.)
On May 16, 1974, the Plat Review Committee again considered Hyland
Park, Phase 2. City Engineer Paul Mattke noted:
"I..,ot 22 will be a water storage site and will be deeded to
the City. It will not be a utility easement; it will be
public property. The note referenced to it should be
changed to say that it is to become the property of the City
of Fayetteville, then sketch in whatever easements the utility
companies need.
"Make the note similar to the one used on Rosewood Estates.
(That Plat hada note which read, 'Lot has been approved
by the Planning Commission for construction of a water pump
station.'") (Page 6 of the Minutes of Plat Review Committee of
May 16, 1974.)
On May 28, 1974, the Planning Commission reviewed the proposed Final
Plat of Hyland Park, Phase 2, Block 5 with President of Hyland Park, Inc., Jim
Lindsey present and representing the developers. The Planning Commission
unanimously approved the Final Plat by passing Resolution PC 23-74. Section 2
of that Resolution states:
"That the City of Fayetteville, Arkansas accept the final
plat along with the land dedicated for streets and other public
uses in the. Hyland Park subdivision described as follows ...."
On June 4, 1974, the Fayetteville Board of Directors approved the Hyland
Park Subdivision, Phase II, Block 5 and passed Ordinance No. 2015 which stated:
"That the City of Fayetteville, Arkansas, hereby accepts and
confirms the final plat of Hyland Park Subdivision, Phase II,
Block 5, hereby accepts and confirms the dedication of the
streets and utility easements shown therein and hereby
declares said street and utility easements to be public streets
and utility easements and the Board of Directors hereby
assumes the care, control and jurisdiction of same."
On July 19, 1974, Nita Lindsey as Secretary for Hyland Park, Inc. signed a
corporate resolution as shown on the Final Plat of Hyland Park, Phase 2, Block 5:
"Resolution Resolved that Nita Lindsey, Secretary of Hyland
Park, Inc. is hereby authorized to execute the certificate of
Ownership and dedication as shown on this Final Plat."
Also on the recorded Final Plat is:
"Certificate of Ownership and Dedications: We hereby
certify that we are the owners of the property shown and
described herein and that we do hereby dedicate all streets,
alleys, easements, parks and other open spaces to public or
private use as noted."
2
Both Jim and Nita Lindsey signed this Certificate of Ownership and
Dedication on July 19, 1974.
"Notes:.. .
3. Lot 22 has been approved by the Planning
Commission for construction of a water tower
and is to become the property of the City of
Fayetteville."
The Final Plat also shows the:
"Certificate of Acceptance and Dedication: The dedications as
shown on this subdivision are hereby accepted by the Fayetteville
City Board of Directors on June 4, 1974."
This was signed by Mayor Russell Purdy and attested to by City Clerk
Darlene Westbrook on July 25, 1974. Thereafter, this Final Plat was filed for
record at the Washington County Court House.
IL Analysis and Arguments of Hyland Park Residents
Hyland Park resident and outstanding attorney Connie Clark wrote a
Memorandum arguing that the City of Fayetteville does not own Lot 22 (the water
tank site) or has abandoned any rights it might have had to lot 22. She further
asserts that "If the City of Fayetteville Condemns Lot 22, It Will Subject Itself To
A Claim For Inverse Condemnation." I will endeavor to respond to her assertions
beginning with the most vital issue of ownership of the water tank site (Lot 22).
A. Does the City own Lot 22?
Ms. Clark notes that A.C.A. § 14-301-102 states:
"No street or alley which shall be dedicated to public use
by the proprietor of ground in the city shall be deemed a
public street or alley, or to be under control of the city
council, unless the dedication shall be accepted and
confirmed by an ordinance specially passed for that purpose."
3
Every year or so, our Planning Department compiles a list of dedicated
streets and alleys which we then submit to the City Council for acceptance of the
dedication of such streets by ordinance. I do not believe we have passed any such
ordinance for easements, water or sewer mains, dedicated park land or other
dedicated public space for the last couple of decades. I do not intend to
recommend any such ordinance since I do not believe A.C.A. §14-301-102 applies
to any dedications except for streets and alleys. This statute was apparently
enacted by the Legislature (in 1875) to protect cities .from having maintenance
responsibilities for streets that could be unilaterally dedicated by a property owner.
Not until the City Council accepted the dedicated street did the City have to
assume the care and maintenance of the street.
The Property Owners Association admits "this statute refers only to streets
and alleys," but argues it should also be a requirement for any property dedicated
to public use. Although I believe the Legislature had much stronger reasons to
apply it to streets and alleys than to other public facilities, my opinion and the
POA's opinion of what the law should be is irrelevant. This statute requiring the
dedication of streets and alleys to be accepted and confirmed by ordinance to be
deemed a public street or alley refers only to streets and alleys.
"(T)he basic rule of statutory construction is to give effect
to the intent of the legislature. We construe a statute just
as it reads, giving the words their ordinary and usually
accepted meaning." Gonzales v. City of DeWitt, 357 Ark.
10, 159 S.W. 3d 298, 301 (2004) (citations omitted)
(emphasis added)
This most basic rule of interpreting a statute shows it has no application to
dedicated public property except for streets and alleys. Even if it did apply,
Ordinance No. 2015 of June 4, 1974 and the Certificate of Acceptance of
Dedication on the Final Plat signed by the Fayetteville Mayor and Clerk should
dispel any issue concerning A.C.A. § 14-301-102.
The POA then argues that the Certificate of Ownership and Dedication did
not specifically name the water tank site (Lot 22): "We do hereby dedicate all
streets, alleys, easements, parks and other open spaces to public or private use as
noted." While the POA emphasizes the "or private" use, I think the "as noted" is
more important. The "Notes" specify that "Lot 22 has been approved by the
Planning Commission for construction of a water tower and is to become the
property of the City of Fayetteville." Lot 22 is clearly "open space" and does not
4
have the designation "common property" as Lot 23 across the street carries. That
"common property" is specifically "intended for use by the Homeowners in
Hyland Park for recreation ..." and is thus for private use. Lot 22 " the property
of the City of Fayetteville" "for construction of a water tower" is expressly public,
not private property.
The POA challenges the above interpretation of the language of the Final
Plat by citing City of Sherwood v. Cook, 315 Ark. 115, 865 S.W. 2d 293 (1993).
"The two essential elements of a dedication are the owner's
appropriation of the property to the intended use and its
acceptance by the public." Id. at 296.
The POA contends "neither of these two elements has been met in our case."
I believe that Note 3 clearly appropriates Lot 22 for a "water tower" and
"property of the City of Fayetteville." The Certificate of Acceptance of Dedication
by Mayor Purdy along with Ordinance No. 2015 constitutes its acceptance.
The Arkansas Supreme Court in the City of Sherwood case held:
"The dedication is sufficient if it appears, from a
consideration of the plat as a whole, with reference to the
surrounding circumstances, that the spaces were intended
to be devoted to a public use." Id. at 297.
Note 3 of the Final Plat makes it clear that Lot 22 is intended to become city
property for construction of a water tower.
The POA also argues that Note 3 is not a dedication to the public, but
instead the developers were "reserving unto themselves the right to sell Lot 22 to
the City of Fayetteville for construction of a water tower." This is clearly not what
Note 3 nor the Certificate of Ownership and Dedication says.
Even if the POA could argue that the owner's Certificate of Dedication and
Note 3 were ambiguous, the rules of construction require any doubt to be construed
in the City's favor.
"(A)ny doubt or ambiguity in the meaning of a dedicatory
plat is construed most strongly against the dedicator and
to the reasonable advantage of the grantees of the dedicated
5
use, i.e., so as to benefit the public rather than the donor.
City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W. 3d 627,
631 (2005) (emphasis added)
Therefore, even if there can be some argument about exactly what the
dedicator on the Final Plat meant in his Certificate of Ownership and Dedication
and Note 3, the argument must be resolved "so as to benefit the public rather
than the donor." Id.
B. Has the City abandoned its rights to Lot 22?
The POA contends that any interest the City might have had in Lot 22 has
been abandoned and lost through non-use and lack of fencing and maintenance.
There appears little statutory or case law support for this assertion.
"(W)hen an owner of land files a plat and thereafter lots are sold
with reference to it, such action constitutes an irrevocable
dedication of any street or passageway for public use shown or
indicated on the plat. Furthermore, whenever a dedication
becomes irrevocable, a public authority can accept the dedication
for public use whenever the necessity occurs. City of Sherwood
v. Cook, 315 Ark. 115, 865 S.W. 2d 293, 297 (1993) (emphasis
added)
Thus, a city need not begin any active public use of a dedication at any
particular time, but is free to do so "whenever the necessity occurs."
In the City of Cabot v. Brians case, the Brians tried to quiet title (acquire
ownership rights) to an access easement designated as "reserved" for a future right
of way on a final plat. They asserted they had used the parcel as their own and
were entitled to it through adverse possession. A.C.A. §22-1-204 prohibits the
adverse possession of realty against a city.
"(A)n owner of land who sells lots by reference to a plat,
makes an irrevocable dedication of the streets, alleys, squares,
parks, and `other public places marked as such on the plat'
to the public use and that the dedication "becomes irrevocable
the moment that these acts occur ... where lots have been sold
6
by reference to a plat, 'no formal acceptance by the city' is
necessary because, by that act, the dedication becomes
irrevocable." City of Cabot v. Brians, supra at 632 (citations
omitted)(emphasis added)
The "irrevocable dedication" of public places shown on the plat occurs when
any lot is sold and "once the dedication has occurred, the City may accept it at any
time or when the necessity should arise." Id. The Fayetteville Water and Sewer
Department and the Fire Department say that time is now and the necessity to
construct the water tower is now.
"(T)he City need not have formally accepted or confirmed
the dedication of the parcel under the circumstances of
this case or made immediate use of the parcel once
acquired. The irrevocable dedication occurred when lots
were sold by reference to the plat, and the City, at that point,
could accept the dedication at any time. Such dedication and
right to accept it invested the City with, at the very least, a
`right to possession' of the parcel, which under Ark. Code
Ann. §22-1-204, would bar appellees' adverse -possession
claim." Id.
C. Will the City Be Liable for Inverse Condemnation For Constructing
a Water Tower on Lot 22?
Such a contention was presented by the Mintons in Minton v. Craighead,
304 Ark. 141, 800 S.W. 2d 707 (1990). In that case the owners claimed "their
residential properties had been devalued because Craighead County had built a jail
in their neighborhood." Id. at 708. The Arkansas Supreme Court affirmed the
dismissal of their claims as follows:
"It must often happen that the value of a city lot is
diminished as a result of the condemnation of adjoining
property for some distasteful purpose, such as the
construction of a city jail. But as the court convincingly
demonstrated in City of Geary v. Moore, 118 Oki. 616, 75
P.2d 891, this is an injury 'for which the law does not, and
never has, afforded any relief.'" Id. at 708, 709.
7
M. Conclusion
The POA's attorney, Connie Clark, has presented good arguments in her
Memorandum pointing out all of the possible weaknesses in the City's position
that it received Lot 22 as a dedication on the 1974 Final Plat of Hyland Park, Phase
II, Block 5. I certainly admit the situation would be more clear if the Certificate of
Ownership and Dedication had expressly mentioned Lot 22 or if the Plat had
writing on Lot 22 such as: "City property, Water Tower site." The dedicator
instead referred in his dedication to "other open spaces to public or private use as
noted." He then noted in Note 3 that "Lot 22 has been approved by the Planning
Commission for construction of a water tower and is to become property of the
City of Fayetteville."
Note 3 itself could have been more clearly worded, but "any doubt or
ambiguity in the meaning of dedicatory plat is construed most strongly against the
dedicator and to the reasonable advantage of the grantees of the dedicated use, i.e.
so as to benefit the public rather than the donor." City of Cabot v. Brians, 93 Ark.
App. 77, 216 S.W. 3d 627, 631 (2005).
I believe the City has a strong case supporting its position that Lot 22
has been dedicated to the City for use as a water tower site. Reasonable minds
can differ in their interpretation of the facts and law so that litigation is always
possible and in this case, very likely. Although I believe the City would probably
prevail, it is not inconceivable that the POA would be successful.
The impact of placing such a tall water tower within this long established
and beautiful neighborhood should not be ignored. All of us realize its impact on
the closest neighbors would be very significant. Therefore, I anticipate
protracted litigation from the POA (which includes several extremely competent
attorneys) if no solution other than to build a water tower on Lot 22 can be found.
The POA might be able to prevent construction during this litigation by Court
injunctive relief. Even without such an injunction, the City Council would have to
decide whether to proceed with construction and risk being forced to condemn the
property (if the POA was successful) or to delay until the Court could rule.
8
Jun 15 2009 5:13P11 FAYETTEVILLE CITY ATTORNE 4795758315 p.2
OFFER AND ACCEPTANCE CONTRACT
Come now the City of Fayetteville, Arkansas, a municipal corporation and
Lovers Lane LLC an Arkansas Limited Liability Corporation by and through its
authorized officer and agent, Gary Combs and agree as follows:
1. Mr. Gary Combs for Lovers Lane, LLC asserts that Lovers Lane, LLC is the
lawful owner of Lot #7 of the John Smith addition as well as the parcel shown and
identified in Exhibit A attached hereto and has or will have by the date of closing the
legal ability to convey clear title to this parcel of approximately 0.66 acre by warranty
deed free of all liens and mortgages. Lovers Lane, LLC desires to sell this parcel (which
includes a lot and the accompanying permanent construction and utility easements) as
identified on Exhibit A which together contain about 0.66 acre to the City of Fayetteville
for Seventy -Five Thousand Dollars ($75,000.00) in cash in addition to Lovers Lane,
LLC's donation to the City of Fayetteville of One Hundred Twenty Five Thousand
Dollars ($125,000.00) which is the price the of the parcel above $75,000.00.
2. The City of Fayetteville hereby tenders a check in the amount of $1,000.00 as
earnest money which shall apply to the $75,000.00 cash portion of the purchase price at
closing. This offer of purchase is expressly contingent upon approval of a lot split,
approval of the right to construct a water tower and approval of this contract by the
City Council of the City of Fayetteville, Arkansas. if title requirements are not fulfilled
or Lovers Lane, LLC fails to fulfill any obligations under this contract, the earnest
money shall be promptly refunded to the City and the City shall retain all of its rights to
request judicial relief. If, after all conditions have been met, the City of Fayetteville fails
to close this transaction, the earnest money shall become liquidated damages for Lovers
Lane, LLC.
3. Conveyance will be made to the City of Fayetteville by General Warranty
Deed, 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 any
mineral rights owned by Lovers Lane, LLC. The deed of conveyance shall restrict the
City of Fayetteville and any successors or assigns to using the property for the
construction, maintenance and operation of a water tower with all necessary accessory
structures and facilities (including but not limited to: the driveway, retaining walls,
drainage control measures, water piping, electrical and/or communication lines,
warning light on the top of the tower, and communication devices for governmental use
only). The deed shall expressly prohibit any attachment of any cellular antennas
upon the water tower or other structure and the construction of any cellular tower or
accessory buildings upon the conveyed property. Such restrictions shall run with the
land.
Jun 15 2009 5:14PM FAIYETTEVILLE CITY ATTORNE 4795758315 p.3
4. Lovers Lane, LLC shall furnish and pay for a policy of title insurance in the
amount of the purchase price from a title insurance company as selected by the City of
Fayetteville.
5. Lovers Lane, LLC agrees to allow the City of Fayetteville, at City of
Fayetteville's expense, to survey the property. Lovers Lane, LLC 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 City of Fayetteville.
6. Taxes and special assessments due by closing shall be paid by Lovers Lane,
LLC. Ad valorem taxes and special assessments shall be prorated as of closing.
7. The closing date shall be within twenty one (21) days after approval of this
offer by the City Council, but may be extended by joint agreement of the parties.
8. Possession of the property shall be delivered to the City of Fayetteville on the
date of closing.
9. Lovers Lane, LLC hereby grants permission for the City of Fayetteville or its
employees or designates to enter the above described property for the purpose of
inspection and/or surveying.
10. All improvements are included in the purchase price.
11. Lovers Lane, LLC shall disclose to the City of Fayetteville any and all
environmental hazards of which Lovers Lane, LLC has actual knowledge. Lovers Lane,
LLC has no knowledge of any environmental issues. The City may investigate and
inspect the land for any environmental hazards and can withdraw from this contract
without penalty if substantial environmental problems are discovered before closing.
12. This agreement shall be governed by the laws of the State of Arkansas.
13. This agreement, when executed by both the City of Fayetteville and Lovers
Lane, LLC 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.
14. This contract expires, if not accepted by Lovers Lane, LLC on or before the
16th day of June, 2009.
2
Jun 15 2009 5:15PM FAYETTEVILLE CITY ATTORNE 4795758315
P.4
15. The City of Fayetteville shall submit this fully executed Offer and Acceptance
Contract to the City Council for their approval within twenty-four (24) days of
acceptance by Lovers Lane, LLC.
16. NOTICE: THE CITY OF FAYETTEVILLE ASSERTS AND
LOVERS LANE, LLC HEREBY ACKNOWLEDGES
THAT THIS OFFER IS EXPRESSLY CONTINGENT
UPON THE APPROVAL OF THIS OFFER OF
PURCHASE BY THE CITY COUNCIL OF
FAYETTEVILLE
IN AGREEMENT WITH ALL THE ABOVE TERMS AND CONDITIONS WE
SIGN OUR NAMES BELOW:
WITNESS our hands this /6 'day of June, 2009.
CITY OF FAYETTEVILLE
A municipal corporation
n
Mayor
`ligl1,ffflf,,,,
=�� °V,�� Off`• y��%
;�• •+rte.!~.
Attest: : FAYETTEVILLE:
J e
. ys. Rka NSP �
Sondra E. Smith, City ClerkTTreasurer
LOVERS LANE, LLC
PrinteI Name of Witness
Jun 15 2009 5:15PM FAYETTEVILLE CITY ATTORNE 4785758315 p.5
EXHIBIT "A"
PROPERTY DESCRIPTION
SURVEY DESCRIPTION PARENT TRACT PARCEL NO. 765-07157-000
LOT 7 OF JOHN SMITH ADDITION TO THE CITY OF FAYETTEVILLE, ARKANSAS, PLAT
RECORD 3-401.
SURVEY DESCRIPTION OF PART OF LOT 7 JOHN SMITH ADDITION TO THE CITY OF
FAYETTEVILLE
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 7, THENCE ALONG THE SOUTH LINE OF
SAID LOT 7 NORTH 89°39' WEST -180.00 FEET; THENCE LEAVING SAID SOUTH LINE NORTH 0°09'
EAST -160.00 FEET; THENCE SOUTH 890391 EAST - 180.00 FEET TO A POINT ON THE EAST LINE OF
SAID LOT 7; THENCE ALONG SAID EAST LINE SOUTH 0°09' WEST - 160.00 FEET TO THE POINT OF
BEGINNING, CONTAINING 0.66 ACRES, MORE OR LESS. ALSO: A 30 FOOT PERMANENT
CONSTRUCTION AND UTILITY EASEMENT ALONG THE NORTH AND WEST SIDES OF THE ABOVE
DESCRIBED PERMANENT ACCESS AND UTILITY EASEMENT.
SIGNED FOR IDENTIFICATION:
WITNESS our hands this � _ day of June, 2009.
CITY OF FAYETTEVILLE
Attest:
'I'll,,,
Son a E. Smith, City Clerk/Tre surer t,.�°��C�►UTR s,,���
ewe •��
FAYETTEVILLE:
vim• A,
r��es� + a• 0 4 A i'�S ++ V \�\•
res///I /ia TOhN� Gti\\\
Jun 15 2009 5:15PM FAYETTEVILLE CITY ATTORNE 4795758315 P.6
ACKNOWLEDGEMENT
STATE OF ARKANSAS )
) ss.
COUNCIL OF WASHINGTON )
BE IT REMEMBERED, that on this date, before the undersigned, a duty commissioned and acting
Notary Public within and for said County and State, personally appeared GARY COMBS, to me well
known as the person who executed the foregoing document, and who stated and acknowledged that he is
GARY COMBS, an officer. and agent of Lovers Lane LLC, and is authorized to execute the foregoing
instrument for and in the name and behalf of Lovers Lane LLC, and further stated and acknowledged that
he 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, 2009.
MYCo sonExpires:
- O _
) otary Public
ACKNOWLEDGEMENT
STATE OF ARKANSAS )
) ss.
COUNCIL 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 LIONELD JORDAN 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, a municipal
corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for
and in the name and behalf of the City of Fayetteville (subject to final City Council approval) 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 gday of June, 2009.
My Commission Expires: Q'p \ taro 4'4 -1 1
5/j&i
o
07AFy sp s Notary Public
ooQi PUBLIO�Oo°c�0
In51p6.1.® - 91.71T Wfl
011'18 111011
Mslr 0ad? noise i-cs
19721
0r*.
FOR
.IW38� AND
1/M1,1R 19'1111116[1 >>,J
l�rT s
_2T RYSWR1P77'OX
P15nprt ew15e 111 I. LOP, 1rw 1gan1�
mm .9.197 row
191? 191061 1-dO
197*0 k 00700
_.ww ossae 191/TIP 96 Sr�
194019 1 *-11+. 6.101[
w CANTERBURY ROAD
LOr a
-r�►s �op� Lor s
LOT 7
8.61# ACRES
JOHN SMITH ADDITION
PLAT RECORD 3-401
O1W .R• LO98R3 LANE, LLC
AE D RECORD: 2007-84413
ror s
SCALE, 11 >s 100'
llOCa *0 BEOM1!
Jut- SnAh Ad1lmn
PISS .1-101
r - A
fNl6T 1)[yWIIM P2011 mlcr 6111!191 oE�{PI10110i PNII OF IOT 1 YY 9X91
Tics. Na 710-E'll{7 Y W VM1Tf 19 me [TI OF Fh%Tfo tlL.
LOT Z
1*+n1 �'u �1 1�, /LAY a wp ,rncs .mix 9YIX us oaleAst f s1c Ic�Tpi 001111 Cos
WE$r - 110101 ONPI newt 1u11w sun mAI 191E
ON160111 tut -,15020 Ott 9414019141 19
t1M1 1q0* 40119 0 PONY II 110 [61111: 111919*0*
lgry' rY0151M19*191090900371191[11111019ON? -
two [x[191719 Saw1a11111941903150 001
10*1* 11 FE 10 I6{t 5.00 A 19 PONT 019111/11111
1919R1A[pl 199 WTYS4'J11Bi1 0LYC 119 *1911 0.111
400{0191F119!➢0160 19190W
/AT Sv
�7FaH1+•"�
1�]P111*1011011
w
0«r� a 1.1W.p. r.r.
m!nWaY�qe�NO
fw�1a 1r A M Y wig
ir1
��
W31R"JY2i59fY OWN .� tNc
VJRWV OS iWI 5[ LOT 7
JM SWM Abb I
-
I 01.011400015001
ba$1W !dY epllpq/
dub its 19 1'*J1[lwL.. Ne
1 1ev1n,m 1510 xsry.
JW[-21'00
1 -5T
111100111
me
CONTRACT
Comes now the City of Fayetteville and Jim Waselues and agree as follows:
1. This contract is specifically contingent upon the following events occurring. If such
stated events do not occur, this contract will not go into effect.
A. The Fayetteville City Council's passage of a Resolution approving the citing
and construction of the City's 500,000 gallon water tower on Lot 7 of the John Smith Addition to
the City of Fayetteville and not on Lot 22 of Hyland Park Phase Two.
B. The Fayetteville City Council's passage of a Resolution authorizing the
conveyance of any and all interest that the City of Fayetteville may have in Lot 22 of Hyland
Park Phase 2 to Mr. and Mrs. Jim Waselues by Quit Claim Deed.
2. Upon the passage of both Resolutions identified in paragraph 1., Jim Waselues
promises to pay at or before closing of the parcel to be deeded to the City by Lover's Lane, LLC
to the City of Fayetteville the sum of Seventy -Five Thousand Dollars ($75,000.00) in cash or
certified check (less a $1,000.00 credit for his earnest money check to Lover's Lane, LLC) as
compensation for the City's Quit Claim Deed to Lot 22 of Hyland Park Phase Two.
3. Property taxes will be prorated to the closing date. No title insurance will be required.
IN AGREEMENT WITH ALL TERMS ABOVE, WE SIGN BELOW ON THIS
THE 16TH DAY OF JUNE, 2009.
By:
CITY OF FAYETTEVILLE
Mayor
Attest:
By:
Sondra Smith, City Clerk
`4�Q�tttttTrrrrry
.
FAYETTEVILLE;
- ;1 - (.s :31- Oa
illlll 11111111��} # * *.
RICHARD L. MILLER
�I°i* • * *# Policy Issuing Agent for:
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
2013 N. Green Acres Rd., Suite B
P.O. Box 3354
Fayetteville, AR 72702
Telephone (479) 521-6288
November 30, 2009
Kit D. Williams
City Attorney
113 W. Mountain, Suite 302
Fayetteville, AR 72701
Illlll Illlllllll�*}# E
Fax (479) 521-3863
RE: Lovers Lane to City of Fayetteville transaction
Dear Kit:
Enclosed is the final Owner's Policy in the above transaction. Could you please get it to the
appropriate people? Thank you for your assistance.
Yours Very Truly,
C17jiiiL
Richard L. Miller
enclosure
RLM/mj
(� f\rl!ti��rti� r�r+ \r �ll1 nl��\ e rl. . rti, r•i+ Itir\ . ��r, nrl 1 t
+ JLinLFY}�ALdAEAISHLICNA770NALTIlL_ES�T/ `i 11`i" a �. T i' T' • , Z i; i(.{ a f ! 1,� Fs+ r 7r•�7L
�>V '1 t a i'L 4 sf Wit?•ti ,t3' :•' l l i �L �� �'1� tai Y
i 7► Cf1MPANY OWNERrS Pf ULICYFQF TITLE. IIVSURANCE,'• a 1' �r--..r��
. c L. � ` , T,rt, y- ti �., 1T.ri♦ w -r,�L'�., �''�t
rW " . I b L Mlllar enli _ti `� y. -Y `f , Lf �� R cAa . 0.gs Road. Sui#e e L J(rt i `i t W _ _ t ... Z i i _ ? x 1 _ {� L �. 'k L t { !.
2013 k Green Aue/1 /� !� r?l f 1 {/ ♦ r r. /mot r t r, ^ {^ � n r' * .\ ��
r f• 7: �'ti` r' r 7.''.
� 'L . �'�
. s . ► ::� .: _{ ! _ i� �� rT ��� ..tL
* * Policy Number OX 325292
Issued by Old Republic National Title Insurance Company
* * Any notice of claim and any other notice or statement in writing required to be given to the
Company under this Policy must be given to the Company at the address shown in Section 18
of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE CONDITIONS, OLD
REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota corporation the "Company") insures, as of Date of Policy and, to the extent stated
in Covered Risks 9 and 10; after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured
by reason of:
1. Title being vested other than as stated in Schedule A.
2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from:
(a) A defect in the Title caused by
(i) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation;
(ii) failure of any person or Entity to have authorized a transfer or conveyance:
(iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered;
(iv) failure to perform those acts necessary to create a document by electronic means authorized by law;
(v) a document executed under a falsified, expired, or otherwise invalid power of attorney;
(vi) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic
means authorized by law; or
(vii) a defective judicial or administrative proceeding.
(b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid.
(c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate
and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land
onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land.
3. Unmarketable Title.
4. No right of access to and from the Land.
5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting,
regulating, prohibiting, or relating to
(a) the occupancy, use, or enjoyment of the Land;
(b} the character, dimensions, or location of any improvement erected on the land;
(c) the subdivision of land; or
(d} environmental protection
if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the extent
of the violation or enforcement referred to in that notice.
Countersigned:
CaL4 .i4W& L2r)
Authorized Officer or Licensed Agent -� e �s
ORT Form 4309
ALTA Owners Policy of Tale Insurance 6.1706 , 727eL
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
A Stock Company
400 Second Avenue South, Minneapolis, Minnesota 55401
(672) 371.1111
By
Attest
President
Secretary
a a6ad
.T. •.. �.
' 'lueur!e10
poinsul aqi Aq of paal6e 10 'pawnsse 'paJa14ns 'pa�6ala (e)
.d alnpegoS
u! uMogs se 91u1 s15an 1641 splooao!lgnd 841 U! lalsue1110
luawnl1su! Jaglo 10 peap aql 10 6u!plooal to alep ay1 pue Aoi!od to
ale(] uaannlaq 6u!goeue 10 paleala pue Al!Joglne leluewwano6 Aq
pasodw! sivawssasse 10 saxel alelsa 1ea11ol ap!i aqi uo uall AuV 'q
Ao!lod s!ql 10 6 s!a
palano0 u! palels iou uoseaj Aue 1allalsuell le!lualalald e (q)
101ajsue111uolnpne1110 93ueAOA000 ivalnpnell e (e)
si 'V alnpaLDS U! UM04S se aj1! j 9y16ul1san
u0!1oesuell aqi 1641 'sMel slg6u ,s1ol!palo 1el!w!s JO 'AoUe Iosu!
alels 'Aoidnilueq lelapa} 10 uo!leJedo aql jo uoseoi Aq 'wielo Auy •ti
8011 ag1lol amen pled peq luew!e10 poinsul aqi 1! peu!elsns
uaaq aneq IOU pinoM legl abewep 10 seal u! 6u!ljnsal (a)
10 '(p L pue 6 Js!y paJeAo3 epun
pap!Aoid a6elanoo ag11!w!1 1a A1!pow IOU saop s!ql 'JanaMOq)
Aollod l0 8160 01 luanbasgns paleala 10 6u1goelle (p)
'luew!el0 palnsul aqi 01 a6ewep 10 ssol ou ui 6u!llnsal (3)
'Aoilod s!gllapun poinsul
ue aweoeq luew!e10 poinsul aqi alep 811101 loud luew!e1a
poinsul aqi Aq Auedwo0 aql of 6ullum ul pasolosip lou pue
luew!el3 pamsul eql 01 umoulnq Ao!lod 10 ale(] le splooa8
o!lgnd aqi u! paplooal iou 'Auedwoa aql 01 umou)I IOU (q)
slauew JGIio JO 'swlelo aslanpe 'saouelgwnaua 'suall 'sloale0 .£
'g JO L )$S!a palano3lapun pep!Aold a6elanoo aqi
1!w!I JO A4!pow IOU SO] uo!snloxd s!g1-uiewop luaulwa 10 s146!a -Z
'g )Si p0JeAO3 epun pap!AOid a6elanoo 84u!w!l 10 Al!pow
lou saop (q)l u0!snloxd s!gi -1amod aoilod leluawwano6 Au tl (q)
'q )ls!a p0Jan001apun pap!nold a6elanoo
aqi 1!w!] 10 Allpow lou saop (e) f uolsnpx3 s!qi -suollelnbei leluaw
-ulano6 to `seoueu!pJo 'smel asegl to uo!leloin Aue 10 papa aqi 10
'uoiloeloid Ieluawuolinua (nl)
JO pue 10 uois!nipgns ay1(!u)
:pue l aqi uo 0810818 luawanowdw
Aue 10 uo!leool 10 sUo!suawIp 'laloejeg3 aql (!!)
'pue] aql l01uawAolue 1o'esn Aouedn000 aqi (1)
01 6u!ielai jo '6u!1!q!gold 'bu!ieln6al
'bu!loulsal (buiuoz pue 6u!pl!nq 016u!lelal asoy16uipnlou!)
uoiielnbej leluawuJan0610 '1!wad 'oouewplo 'Mel Auy (e)
:10 uoseal Aq as!1e ieqi sasuadxa 10 'saal ,sAewolle
'slsoa 'a6ewep 10 seal Aed IOU p!M Auedwo0 aql pue 'Aa!lod slgl
10 a6elanoo 041 wail papn oxa Alssaldxa ale slallew 6uiMollol aqi
39VH3Ao3 woa3 sNoisn=3
'SUDIIIpuo0 aql u! pep!nold lualxa
aql 01 Aluo 1nq 'AO!Iod s!q1 Aq lsulebe palnsu! 1a11ew Aue to asualap ui paulnaui sasuadxa pue 'saal,sAauloue 'slsoo ay1 Aed asle ll!M Auedwo0 aqi
•y alnpagoS ul uMogs se 811!1 S1san legs SPJ03ab o!lgnd
aqi u! lalsueli to luawnlisu! leglo JO paap aqi 10 6u!plooal aqi of loud pue A3!lod 10 0190 01 luanbasgns spio3aa oilgnd aql u! paplooal 1a 081!1 uaaq
seq 10 P939229 JO paleala uaaq s911 191.116 g6noigl l s)ls!y palano3 u! papnloul lauew lagio 10 011!18112 uo aouelgwnoua 10 uail 10 u! 188180 Auy p f
'1ol!palo ua!l 101uawbpnf
901 JO amen 101 lasegolnd a of aouais!xa Si! 10 aa!1ou laedw! 01(1!)
10 'Alewll eq o1(!)
splooa» ollgnd 841 w 6u!plooal sl! JO alnl!el 911140 uoseal Aq smel slg6u ,sjol!paio 1el!w!s 10 'AouanIosu! alels
'Aoldnl�lueg lelapal lapun lalsuell le!1ualalald a salni!lsuoo y alnpagoS u! uMogs se all!1 bu!lsan lalsuell to luawnllsui aql asneoaq (q)
10 sMel slg6!1,sJo11paao 1el!w!s 1o'Aouanlosu! aleis 'Aoldnl�lueq leiepal lapun lalsuell le!lualalald 10 lualnpnell a pa2n1!isuoa
lalsue111oud 1641 asneaaq V alnpagDS u! uMogs se 811!16uilsan uo!1oesueJi 0y102 loud bu!Jlnaoo pue l 81 u! isalalu! Ave 10 01811!18111
jo lied Aue 10 Ile to Jalsuell a to 'Apowal anilewalje ue 6u!p!nold 18010 ilnoo e wolf 10 'lied u! JO 0101M u! aouep!one 041101lnsal a se (e)
an!loalap 6u!aq 10 y alnpegos u! palels se uegl 18410 palseA 6u!aq 911!1.6
'ebpolmouN 1nog11M onlen 101 lasegolnd a to s1116u 8111 uo 6u!pulq s! pue paiin000 seq 1ey1 Apoq Ieluewuienob a Aq 6u!�lei Auy 'g
'splooad o!lgnd aqi u! paplooal s! 'puel a4110lied Aue buiquosap'as!olaxa aqi to ao!lou 9J! uiewop luouiwa to siglu 811110 as!31axa agl'L
ao!1ou 1e141 u! 01 pa11ala11uawaololua aqi l0 luaixa 94101 Aluo lnq splooad o!Ignd•agl•ui paplooal Si puel aqi to lied Ave bu quosep 'uo!loe
ivawaololua 04110 0o!1OU a J! 9 paieno0 Aq peienoo IOU lamod aoyod lelu0WUJ0Ao6 9 to asiolaxa 82 uo paseq uo!loe luawaalolue ub -g
I»#*�
((1(Iflfll(Ilfllir* OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY *� fK
w I(I(fffflll ll( j (Ills.. s w
OWNER'S POLICY OF TITLE INSURANCE
PREMIUM
SCHEDULE A
SI #
Amount of Insurance
$200,000.00
RI #
Date of Policy
June 29, 2009, at 11:08 A.M.
1. NAME OF INSURED:
City of Fayetteville, AR, a municipal corporation.
2. The estate or interest in the land which is insured by this policy is:
A fee simple estate.
3. Title to the estate or interest in the land is vested in:
City of Fayetteville, AR, a municipal corporation.
4. The land referred to in this policy is described in Schedule "C".
Page 1 of 4
RI $
FILE NO. R0750
Policy No.
0X325292
SCHEDULE B
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys'
fees or expenses) which arise by reason of:
1. Any discrepancies or conflicts in boundary lines, any shortages in area, or any encroachment or
overlapping of improvements.
2. Any facts, rights, interests or claims which are not shown by the public record but which could be
ascertained by an accurate survey of the land or by making inquiry of persons in possession thereof.
3. Easements, liens or encumbrances or claims thereof, which are not shown by the public record.
4. Any lien or right to lien for services, labor or material imposed by law and not shown by the
public record.
5. All assessments and taxes due in 2009, and thereafter.
6. Taxes or assessments which are not shown as existing liens by the records of any taxing authority
that levies taxes or assessments on real property or by the public record. Proceedings by a public
agency which may result in taxes or assessments, or notice of such proceedings, whether or not
shown by the records of such agency or the public record.
7. Loss arising from security interest evidenced by financing statements filed of record as of the
effective date hereof, under the Arkansas Uniform Commercial Code and Judgment liens and other
liens of record in any United States District Court or Bankruptcy Court in the State of Arkansas, as of
the effective date herein.
8. All right, title and interest in and to all of the oil, gas and other minerals, and other components of
the mineral estate, together with all rights, easements and privileges relating thereto. The purpose of
this exception is to limit policy coverage to the surface estate only and to exclude policy coverage for
all right, title and interest of any persons, and/or the public, and/or entities, and/or governments, in
and to all of the oil, gas, minerals and other elements which do not constitute a part of the surface
estate. It is the further purpose of this exception to exclude coverage for all rights, privileges,
whether recorded or unrecorded, relating to the mineral estate including, but not limited to, items
such as: mineral leases, transfers of mineral interests, mineral conveyances or reservations, royalty
conveyances or reservations, pooling agreements, unit designations, royalty interests, royalties,
bonuses, mineral estate rentals, delay rentals and ingress/egress for mineral production or
transportation purposes. It is also the purpose of this exception to exclude from coverage any
recorded or unrecorded easements and/or rights of way which are owned or held by any lessee or
mineral estate interest owner, on, over, across or under the land described on Schedule "A" for the
purpose of producing or transporting any of the minerals and/or mineral interests excepted from
policy coverage hereunder.
Page 2 of 4
9. Loss arising from any utility or right of way easement, active leasehold, mineral conveyance, or
any ingress or egress rights thereof.
10. This policy does not insure as to the amount of acreage contained within the described
boundaries of the insured premises. Any mention of acreage amounts is done so for descriptive
purposes only.
11. Loss arising, if any, from restrictions in the Plat and Protective Covenants of John Smyth
Addition in the City of Fayetteville, on file in the office of the Circuit Clerk and Ex -Officio Recorder
of Washington County, Arkansas.
12. Loss arising, if any, from restrictions in the Warranty Deed from Lovers Lane, LLC, to the City
of Fayetteville, Arkansas, recorded July 29, 2009, at Document No. 2009-20455 in the office of the
Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas.
13. Loss arising, if any, from the delinquent 2008 real estate taxes on Parcel #765-07157-000.
Page 3 of 4
SCHEDULE C
Owner's Policy No. 0X325292
The land in this policy is situated in the State of Arkansas, County of Washington, and is
described as follows:
Part of Lot 7 in John Smyth Addition to the City of Fayetteville, Arkansas, being
more particularly described as follows: Beginning at the Southeast corner of said Lot
7, thence along the South line of said Lot 7 North 89°39'00" West 180.00 feet;
thence leaving said South line North 00°09'00" East 160.00 feet; thence South
89°39'00" East 180.00 feet to a point on the East line of said Lot 7; thence along said
East line South 00°09'00" West 160-O0 feet to the Point of Beginning, containing
0.66 acres, more or less.
Also a 30 foot permanent construction and utility easement along the North and West
sides of the above described property, described as follows: Beginning at the
Southwest corner of the above described property North 89°39'00" West 30.00 feet,
thence North 00°09'00" East 190.00 feet, thence South 89°39'00" East 210.00 feet,
thence South 00°09'00" West 30.00 feet, thence North 89°39'00" West 180.00 feet,
thence South 00°09'00" West 160.00 feet to the Point of Beginning.
Page 4 of 4
CONDITIONS AND STIPULATIONS
1. DEFINITION OF TERMS
The following terms when used in this policy mean:
(a) "Amount of Insurance": The amount stated in Schedule A, as may
he increased or decreased by endorsement to this policy, increased
by Section 8(b), or decreased by Sections 11 and 12 of these Conditions.
(b) "Date of Policy": The date designated as "Date of Policy" in
Schedule A.
Ic) "Entity": A corporation, partnership, trust, limited liability
company, or other similar legal entity.
(d) "Insured": The Insured named in Schedule A.
(1) The term 'Insured' also includes
(A) successors to the Title of the Insured by operation of law as
distinguished from purchase, including heirs, devisees, survivors,
personal representatives, or next of kin;
(BI successors to an Insured by dissolution, merger, consolidation,
distribution, or reorganization;
(C) successors to an Insured by its conversion to another kind of
Entity;
(D) a grantee of an Insured under a deed delivered without
payment of actual valuable consideration conveying the Title
(1) if the stock, shares, memberships, or other equity
interests of the grantee are wholly -owned by the
named Insured,
(2) if the grantee wholly owns the named Insured,
(3) it the grantee is wholly -owned by an affiliated
Entity of the named Insured, provided the affiliated
Entity and the named Insured are both wholly -owned
by the same person or Entity, or
(4) if the grantee is a trustee or beneficiary of a trust
created by a written instrument established by the
Insured named in Schedule A for estate planning
purposes.
(ii) With regard to (A), (B), (C), and (D) reserving, however, all rights
and defenses as to any successor that the Company would have had
against any predecessor Insured.
(e) 'Insured Claimant': An Insured claiming loss or damage.
(f) 'Knowledge' or "Known": Actual knowledge, not constructive
knowledge or notice that may be imputed to an Insured by reason of
the Public Records or any other records that impart constructive
notice of matters affecting the Title.
(g) "Land": The land described in Schedule A, and affixed improvements
that by law constitute real property. The term "Land" does not
include any property beyond the lines of the area described in
Schedule A, nor any right, title, interest, estate, or easement in
abutting streets, roads, avenues, alleys, lanes, ways, or waterways,
but this does not modify or limit the extent that a right of access to
and from the Land is insured by this policy.
(h) "Mortgage": Mortgage, deed of trust, trust deed, or other security
instrument, including one evidenced by electronic means authorized
by law.
(i) '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 Covered Risk 5(d), 'Public Records'
shall also include environmental protection liens filed in the records
of the clerk of the United States District Court for the district where
the Land is located.
(j) "Title": The estate or interest described in Schedule A.
(k) 'Unmarketable Title": Title affected by an alleged or apparent
matter that would permit a prospective purchaser or lessee of the
Title or lender an the Title to be released from the obligation to
purchase, lease, or lend if there is a contractual condition requiring
the delivery of marketable title.
2. CONTINUATION OF INSURANCE
The coverage of this policy shall continue in force as of Date of
Policy in favor of an Insured, but only so long as the Insured retains
an estate or interest in the Land, or holds an obligation 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
warranties in any transfer or conveyance of the Title. 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
obligation 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 5(a) of these Conditions, (ii)
in case Knowledge shall come to an Insured hereunder of any claim
of title or interest that is adverse to the Title, as insured, and that
might cause loss or damage for which the Company may be liable
by virtue of this policy, or (iii) if the Title, as insured, is rejected as
Unmarketable Title. If the Company is prejudiced by the failure of
the Insured Claimant to provide prompt notice, the Company's
liability to the Insured Claimant under the policy shall be reduced
to the extent of the prejudice.
4. PROOF OF LOSS
In the event the Company is unable to determine the amount of
loss or damage, the Company may, at its option, require as a condition
of payment that the Insured Claimant furnish a signed proof of loss.
The proof of loss must describe the defect, lien, encumbrance, or
other matter insured against by this policy that 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.
5. DEFENSE AND PROSECUTION OF ACTIONS
(a) Upon written request by the Insured, and subject to the options
contained in Section 7 of these Conditions, 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 covered by this policy adverse to the Insured. This obligation
is limited to only those stated causes of action alleging matters
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. It 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 that allege matters not insured against by this policy.
(b) The Company shall have the right, in addition to the options
contained in Section 7 of these Conditions, at its own cost, to
institute and prosecute any action or proceeding or to do any
other act that in its opinion may be necessary or desirable to
establish the Title, 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 to the Insured. The exercise of these rights shall not be an
admission of liability or waiver of any provision of this policy.
If the Company exercises its rights under this subsection, it must
do so diligently.
(c) Whenever the Company brings an action or asserts a defense
as required or permitted by this policy, the Company may pursue
the litigation to a final determination by a court of competent
jurisdiction, and it expressly reserves the right, in its sole
discretion, to appeal any adverse judgment or order.
Page 3
6 85Bd
'1uawAed aql jo lunowy aql Aq
aoueansul to lunowy aql aonpai IIegs 'sasuadxa pue 'sees ,sAauaolle
'slsoa Jot @pew sluawAed ldaoxa A3!lod s!ql aapun sluawAed IIy
A111I9VI1 JO
NOIIVNIWa31 HO NOI10f10311 :33NVHf SNI JO N0110fl03a 0l
-Auedwo3 aql to luasuoa uauum Joud aql lnogl!m 1!ns Jo wisp Aue
6w111as u! paansul aql Aq pewnsse AlueWunlon A1!I!ge!I Jo l paansul
84101 a6ewep Jo ssoi Jos age!I aq lou IIegs Auedwo3 aql (o)
.palnsu! S e 'al1!l a1J 018SJanpe
'sleadde Ile to uoil!sods!p pue uo!lo!psunf lualadwoo l01Jnoo
e Aq uo!leu!WJalop leu!t e uaaq seq aiagl I!lun a6ewep ao ssoi Jot
Aul!ge!I ou aneq egs Auedwo3 aql 'luasuoo s,Auedwo3 aql ql!m Jo
Auedwo3 aq1 Aq uo!1e6!1!I 6u!pnlau! uo!1e6I1!I Aue 10 loan aql ul (q)
-palnsu) aqi of pasnen a6ewep to ssoi Aue Jos algeil aq
lou IIegs pue lauew legs of laadsai ql!m suo!le6ygo Si! pawJolaad
An 1 aneq IIegs 1! 'sleadde Aue to uo!laldwoo aql pue uo!le6!1!I
6wpnlau! poglaw Aue Rq lauuew lua6!I!p AlgeuoseeJ e w paansu!
se Ile 'all!) o w!ela aql saana Jo pueg aql wogs to 01
ssaaae 10 lg6!J a 10 Joel aq1 saana Jo aoueagwnaua Jo ua!1 'loalap
pa6alle eql sanowaJ Jo all!) eql sags!Igelsa Auedwo3 G1 11(0)
All1IOVI1 JO NOIIVIIWI1
•suourpUO3 asegl to L pue 9 suo!laas ql!m aouepaoaae
ui pallnou1 sasuadxa pue 'sass „ sAauloue slsoa asogl Aed osle II!m
Auedwo3 ay1 '(q) pue {e) aapun Al!I!ge!I so lualxa 8g101 uo!l!ppe ul (o)
,p!ed pue palues s! 1! alep aql 10 se Jo luew!e13 paansul eql
Aq apew sem wiela aql alep 041 to se aagl!a pau!wJalap abewep
JO ssoi ag1 aneq 011g5u aql aneq IIegs lu0UJ!el3 Paul eql (!!}
pue'%01 Aq pasealou! aq IIegs aaueansul to lunowy aql (!)
'paansu! se all!1 aql 6u!gs!Igelsa u! Inlssooansun si pue suo!1!puo0
asagl l0 5 uo!laaS aapun slg6!a Si' sansJnd Auedwo3 aqi 11(q)
•Ao!lod slgl Aq lsu!e6e paansui also aql of laafgns 8I1!1 aql to amen
eql pue paansu, SO all!1 aql to amen aql uaamlaq aauaaall!p ag1(I!)
in :aaueansul to lunowy aqi(!)
10 Jassal agl peaaxa loo IIegs Ao!Iod sigl
aapun a6ewep Jo ssoi Jot Auedwo3 eql to Al!I!geil to lueixe aql (e)
,,Oilod s!ql Aq 1su!e6e palnsui siallew to uoseal Aq a6ewep to ssoi
paiattns seq oqm luew!e13 palnsu) eql Aq paaanou! Jo pau!elsns abewep
Jo ssoi AJelaUOw lenlae 1su!ebe A)!uwapw to laeJluoo e s! A3!lod s!ql
A1I118VI1 JO 1N31X3 ONV NOIIVNIWU3130 '8
•uoile6!1!I Aue anu!luoo in 81noasold 'pualap 01 uo!le6!Igo in
A1!I!ge!I Aue bu!pnlau! aleu!wJal U11S 'apew eq o1 paJ!nbei sluowAed
81 uegl Jaglo a6ewep Jo ssoi pow!elo eql Jol A3!lod s!ql Japun
paJnsul aql 01 suo!lelllgo s,Auedwo3 eql (!!) Jo (!)(q) suo!loasgns u! Jol
pep!noJd suo!ldo eql to Jegl!a jo Auedwo3 eql Aq asl9Jaxa eql uodn
-Aed of pole6!lgo s! Auedwo3 eql
leg) pue luewAed to ew!l eql of dn Auedwo3 aql Aq pazuoglne 8Jam
leg) luew!e13 paJnsul eql Aq peJJnou! sasuadxa pue sari sAeuloue
'slsoo Aue ql!m Jaglabol A3!lod s!gl Japun JOJ pap!noJd abewep Jo
ssoi aql luewlel3 paansul eql ql!m allies aslmJaglo ao Aed of (!!)
Jo Aed of pale6!lgo
si Auedwoo agl leg) pue luewAed 10 aw!l aql of dn Auedwo0 eql Aq
pez!loglne @lam leg) luewlel3 pamsul aql Aq p8JJnoui sasuadxa pue
'sea} s4aulolle 'slsoo Aue Aed IIM Auedwo3 eql 'uo!1!ppe ul -Aoilod
sigl Japun 1su!ebe palnsu! wielu Aue luew!ela paansul ue to aweu
8111 u! Jo Jot sawed laglo gl!m allies as!mJaglo Jo Aed al (I)
'1uew!el3 paansul aql 111!M Jo
paansul aql uegl aaglp sawed gl!M a1110S es!MJag1Q JO Aed of (q)
uoile!1!I Aue an
-wluoo 10 alnoasold 'pualop 01 uo!1ebilgo Jo A !!!qe!l Aue buipnpu!
'aleu!wJal IIegs'uo!laasgns s!ql u! paa!nbai ivawAed ay1 apew of ueyl
aaglo A3!lod s!111 aapun paansul 84101 Auedwo3 agl to suo!le6!lgo
pue A1!I!gell Ile uoildo s!y110 Auedwo3 ay1 Aq as!alaxe aql uod fl
-Aed 01 pale6!lgo s! Auedwo3 aql
leg) pue luawAed so Japual in luawRed to aw!1 aql 01 dn Auedwoo
aql Aq pazuoglne 0Jam leg) luew!eIQ palnsu) aql Aq p8Jlnou!
sasuadxa pue 'saes ,sAauJoue s1so0 Aue gl!m aaglabol A3!lod
s!gl aapun aaueJnsul l0 lunowy aql to luawAed aapual Jo Aed al
-aaueansul to lunowy aql la luewAed aapual JO Aed 01 (e)
:suogdo Ieuoil!ppe 6u!mollol
eql aneq Begs Auedwo3 ayl'Ao!lod s!ql aapun w!ela a so asea ul
A11118V11 30 N011VNIWIl31
'SWIVIO 31113S 3SIM113H10 HO AVd 01 SNOI1dO L
w!013 leg) of se Aallod s!ql aapun Auedwo3
aql JO A1!pge!I Aue aleu!WJal IIegs 'uouelnbeJ IeluawUJano6 Jo mel
Aq pal!q!goJd ssalun 'uo!laasgns s!q1 w paW!nbeJ se sailaed pa!gl
ww1 uo!lewJosu! AJessooeu AlgeuoseaJ 0Jnaes o1 uo!ss!waad lueJ6
Jo uo!lewJolu! palsanbaa Algeuoseaa Aue aonpoJd gleo apun
uo!leulwex8 Jo11!wgns of luew!e13 paansul aql to aJnpeg •w!ela aql
10 uo!1ea1s!u!wpe aql u! AJessooau si 1! Auedwo3 ay1 JO 1uaw6pnf
algeuoseai aql u! 'ssalun sJaglo 01 pasolos!p aq lou IIegs uo!loaS
S11 01 luensJnd Auedwo0 8 101 pap!nold luew!e13 paansul oql
Aq lepuap!suoo se paleubisap uo!lewJolu! IIV 'a6ewep in SsOI 01
01 u!elJad AlgeuoseaJ leg) Rued pa!g1 a to IoJluoo to Apolsno @ql u!
spJoaaJ asagl to Ile Adoo pue laadsu! euiwexa o1 Auedwo3 81 JO
anileluasaJdai pazuoglne Aue Jot 6wlum u! uo!ssiwJad Si! lueJb 110115
luew!ela paansul egl'Auedwo3 81110 an!leluas8JdaJ pazuoglne Aue
Aq palsanbaJ 1! 'Jag1Jn j abewep Jo ssoi aql 01 uleuad AlgeuoseaJ
legs Aallod to alep Ja11e Jo aaolaq alep B bu11eaq 1agla1M soap!n
pue sadel 'sJls!p 'sI!ew-a 'slJodaJ aauapuodsaJJoo epueaowaw
's�Iaaga slabpal 's�Iooq 6u!pnlou! 'pau!elu!ew wn!paw Janalegm
U! spJooaJ Ile 'Auedwo3 aql so an!lelueseJdal pazuoglne eql Aq
paleu6!sap eq Aew se saaeld pue saw!) algeuoseal Bons 1e bu!Adoo
pue uo!loadsu! uoileu!wexe Jos aanpoJd of pue Auedwo3 @ql to
eniwlueseJdal pazuoglne Aue Aq gleo Japun uo!leuiwexa 011!wgns
of luew!el3 paansul 8g18JJnbaJ Algeuosew Aew Auedwo0 aql (q)
'uolieJad000 gans buu!nbej sJallew in Jellew eql of pJe6eJ ql!m
'uo!le6!1!l Aue anu!luoo Jo alnaasold 'pualap 01 uo!le6!lgo Jo A1!I!geil
Aue buipnlou! 'aleu!waal IIegs Aa!lod,agl Japun paansul agl 01
suoile6!lgo shuedwo3 agl'uo!leJad000 paJinbaJ agl gs!uJn101 paJnsul
814 to 8Jnl!es aql Aq paa!pnfaJd s! Auedwo3 aql sl 'paansu! SO
Jellew aeglo Aue Jo all!) aql gs!Igelsa 01 algeJ!sap JO AJessaoau eq
Aew Auedwo0 aql to uoru!do aql u! leg) lee InJmel aaglo Aue u! (!!)
pue luawaluas 6u!1aa}la Jo 6u!paaaoJd Jo uo!1ae 81 bu!pualap
Jo buunoasoJd sassaul!m 6u!u!elgo aauap!ne buunoas ui (!) p!e
algeuoseaa Ile Auedwo0 eqi en!6 IIegs 'asuadxa s,Auedwoo 8110
'paJnsul eql Auedwo3 aql Aq palsanbaJ J8n8Ua1M 'asodind s!ql
Jot paJnsul aql so aweu agl'uondo s1! le'asn o11y6u ail bu!pnlau!
'5uipaaaoJd Jo uollae 814 u! asuasap ap!AOJd in alnaasold os 01
lgbu 8111 Auedwo3 ag1018Jnoas IIegs paJnsul agl'sleedde Aue pue
6UlpaaaOJd Jo uollae AN 10 esualap 8111 Jot ep!noJd Jo alnaasold 01
Auedwo0 aql seJ!nbei Jo sl!wied AD!lod s!ql aJagm saseo Ile uI (e)
31VH3dOO3 O1INVWIVi3 0311fSNI J0 A1110 9
(i,uoa) SNOIlvindi1S'ONV SNOIUIaNO0
CONDITIONS AND STIPULATIONS (con't)
11. LIABILITY NONCUMULATIVE
The Amount of Insurance shall be reduced by any amount the Company
pays 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 executed by an Insured after Date of Policy and
which is a charge or lien on the Title, and the amount so paid shall be
deemed a payment to the Insured under this policy.
12. PAYMENT OF LOSS
When liability and the extent of loss or damage have been definitely
fixed in accordance with these Conditions, the payment shall be made
within 30 days.
13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT
(a) Whenever the Company shall have settled and paid a claim
under this policy, it shall be subrogated and entitled to the rights of
the Insured Claimant in the Title and all other rights and remedies
in respect to the claim that the Insured Claimant has against any
person or property, to the extent of the amount of any loss, costs,
attorneys' fees, and expenses paid by the Company. If requested
by the Company, the Insured Claimant shall execute documents to
evidence the transfer to the Company of these rights and remedies.
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 and remedies.
If a payment on account of a claim does not fully cover the loss of
the Insured Claimant, the Company shall defer the exercise of its
right to recover until after the Insured Claimant shall have recovered
its loss.
(b) The Company's right of subrogation includes the rights of the
Insured to indemnities, guaranties, other policies of insurance, or
bonds, notwithstanding any terms or conditions contained in those
instruments that address subrogation rights.
14. ARBITRATION
Either the Company or the Insured may demand that the claim or
controversy shall be submitted to arbitration pursuant to the Title
Insurance Arbitration Rules of the American Land Title Association
("Rules"). Except as provided in the Rules, there shall be no joinder
or consolidation with claims or controversies of other persons.
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 in connection with its issuance or the breach
of a policy provision, or to any other controversy or claim arising out of
the transaction giving rise to this policy. All arbitrable matters when
the Amount of Insurance is $2,000,000 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 $2,000,000 shall be
arbitrated only when agreed to by both the Company and the Insured.
Arbitration pursuant to this policy and under the Rules shall be binding
upon the parties. Judgment upon the award rendered by the Arbitratorls)
may be entered in any court of competent jurisdiction.
15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CON-
TRACT
(a) This policy together with all endorsements, if any, attached to it
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 that arises out of the status of the
Title or by any action asserting such claim shall be restricted to this
policy.
Cc) Any amendment of or endorsement to this policy must be in
writing and authenticated by an authorized person, or expressly
incorporated by Schedule A of this policy.
Cd) Each endorsement to this policy issued at any time is made a
part of this policy and is subject to all of its terms and provisions.
Except as the endorsement expressly states, it does not (i) modify
any of the terms and provisions of the policy, (ii) modify any prior
endorsement, (iii) extend the Date of Policy, or(iv) increase the
Amount of Insurance.
16. SEVERABILITY
In the event any provision of this policy, in whole or in part, is held
invalid or unenforceable under applicable law, the policy shall be
deemed not to include that provision or such part held to be invalid, but
all other provisions shall remain in full force and effect.
17. CHOICE OF LAW; FORUM
(a) Choice of Law: the Insured acknowledges the Company has
underwritten the risks covered by this policy and determined the
premium charged therefor in reliance upon the law affecting interests
in real property and applicable to the interpretation, rights, remedies,
or enforcement of policies of title insurance of the jurisdiction
where the Land is located.
Therefore, the court or an arbitrator shall apply the law of the
jurisdiction where the Land is located to determine the validity of
claims against the Title that are adverse to the Insured and to
interpret and enforce the terms of this policy. In neither case shall
the court or arbitrator apply its conflicts of law principles to deter-
mine the applicable law.
(b) Choice of Forum: Any litigation or other proceeding brought by
the Insured against the Company must be filed only in a state or
federal court within the United States of America or its territories
having appropriate jurisdiction.
18. NOTICES, WHERE SENT
Any notice of claim and any other notice or statement in writing
required to be given to the Company under this policy must be given to
the Company at 400 Second Avenue South, Minneapolis,
Minnesota 55401-2499.
Page 5
H
mpl°a� 0
v o��
1
I ;
I I
rn
;
I
c ////PERMANENT
A
1 1 2i
1 1 I
I I
I I
II
II
y Z i i O
o Abp i o (119
.4 oil I I Y AOOI _-_-
PLATiFD ,---
N 89.39'00' W X30' UWl EASEMENT
0
onsA Q
am mom
z pol7.o Lno� L
ii
0020 D A
y>8
��UoO y
O p
<1Yo2,
g���g
> CID Z
§o�e�
E� rym�pV
S pZ�IN
iCQf m?r�p
mlil�*�i N
IU
O p m c6
cQc,..::..aa
C ^1 pI
m pm�A
�y$yrir�Y
ZD9
Qi In �-LL 9i ti
NF bA
go gN
1
=.so(=�j,Cm1,QB
p f.lmm +lm�i
FQR9
{NV
I �
V L
0mv5zo pnpz Vsl
H
♦ � A
G
gmNml�n/ �>n'01�O11O ono
2 )>RVaA=
I
AZ
l9L
�D
5 Eo
m $o
Om
gom�mIVB'
C
�o
,p.,
���zmpo8�ofli
$Q
�mmoaE
£�<w,CpZmmpp
\VOIm DMJIIQZ�1
m ZE11II11
+NVD< •Z�n
m�
15
D�
y_
80$ o y\y
> My £ 0
2>
[C>
�Wol`dp nizvt''
<ci
BS�uBn'
m$
`pYL�os">4"gp
Zp
��
MN
`nlv
9UU
180.00' 220.00' P n co ................ .
r---I- ---------------------`
V
zi
a o
y z^�
�ml gmomogF:o.
S 89.39'00' EinL<,Inm$"
I
eie
.......
_ _ i
�g I7 -al --mm
I
ny9D
Wyob c O>��V pO+
>«
pO
ti`s- 2mpyy8p Q'
�0
ZZ..
04
i
p ,�•� n \
�8 9OZm-lnmm0
Q
S7 �1
j
�A An
C1 CmQpn,
TAS
I
I
p_
zw2$r�rl 2
rp In
z > C
Z In "tn1 0 ,- 0
PY`b0'y nQn y'1 0 V,
Oin2z; SA
>
Cit
pm=�OIZ�Iy pgo�p R 9Z
� �mo8�e i'amof� zo
i Y'£Intio Em nm<�i o
� NFm01 Cgl�lm�+ 41y
O\ = V N m I <
00
vo�YfT+�r�
JB�OI 2-
1 z o,2mljI�OZI2 c£
p m 0 0 m> p o A < 3
>2g m
a mp
to
goo
ma a
-o
9'y
tr Co
Bran
§.
0 0
257.43'
w' UMUW EASEMENT\
r- ------------------ /
z n ijPPD ,
I plum h /
j�va y
W , i
I j
I /
f i
� �
0,
e
Z£L£Z000-60OZeTT3
,1JeT0 1Tn0JTO Odwe 1S •13e9
tlV A:Wn00 UOZDUT499A
t 40 1 eIed 0091$ •lwy aed
Ln/ ZC:EI:O1 le SOOZ/EZ/LO ;PIPJOoey _
0 4 Q Z O m> 9
y�•.Ibl� r��yza i
�i8Qlm��5i� tz
g>Q8� 8
o'C>CAIn��z£ Y1,
Ms's �pogN3� =
i i�ogN=yq �
yym 5O0o ��n'p+�2f D
rsyZLp'O ��\ C
�_zz av ohm$ Q_
600'
Tgg2=roQ�m
--
m�oQ qg�e =b�ya
c §Fi2o'S" IAlov is
>�g�8m.my
w '' m�:
c .819 5=1
• 0-.,2g >§
ypy�m
1 OVyy X50
hm> my zm>
CIA;DA4 U NNg
myyo 0 ss
C I pp,J,�
Si
O
L=J
z
d
�I
N
A3AMO`J i {+AIM
13W :edlj [00081998010 :01 000
IIIIIIIIIIIIIIIIIIIIIII�IIIIIIIIIIIIIIIIIIIIIIIII�IIIIIIIIIIIIIIIIIIIIIIIIIII ;