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HomeMy WebLinkAboutORDINANCE 6109113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 6109 File Number: 2018-0612 BUFFINGTON WEIR, LLC COST SHARE AGREEMENT: AN ORDINANCE TO WAIVE THE REQUIREMENTS OF FORMAL COMPETITIVE BIDDING AND APPROVE A COST SHARE AGREEMENT WITH BUFFINGTON WEIR, LLC FOR BUFFINGTON WEIR, LLC'S CONTRACTOR TO CONSTRUCT THE FULLY LANDSCAPED BOULEVARD SECTION OF RUPPLE ROAD AND ACCOMPANYING MULTI -USE TRAIL ALL THE WAY THROUGH THEIR PROPERTY UPON FREELY DEDICATED RIGHT OF WAY WITH THE ESTIMATED AMOUNT TO BE PAID BY THE CITY OF FAYETTEVILLE NOT TO EXCEED $2,295,267.72 UPON THE ANNEXATION, REZONING AND DEVELOPMENT APPROVAL OF BUFFINGTON WEIR, LLC'S PROPERTY PURSUANT TO THE FAYETTEVILLE PLANNING DEPARTMENT'S RECOMMENDATIONS DETAILED IN THE AGREEMENT AND TO AUTHORIZE MAYOR JORDAN TO SIGN THE AGREEMENT WHEREAS, Buffington Weir, LLC desires to purchase about 68 acres from the McFarland Family Trust along the designed route of Rupple Road if the property would be annexed into Fayetteville and be rezoned and approved for development pursuant to the Planning Department's recommendations; and WHEREAS, the City of Fayetteville would benefit from the Buffington Weir, LLC's annexation, development, dedication of Rupple Road right of way dedication and cost share using the developer's construction company to extend Rupple Road further North as part of the interior "Mayor's Box" boulevard to relieve traffic congestion from I-49 intersections with Martin Luther King Boulevard, Wedington Boulevard and Porter Road and to help Fayetteville citizens and others better access Uptown Fayetteville's commercial and restaurant areas from the West without having to utilize I-49; and WHEREAS, waiving formal competitive bidding and using Buffington Weir, LLC's construction Page 1 Printed on 11/9/18 Ordinance: 6109 7e Nunz r - 201 R-0 company at a guaranteed maximum cost that is less than our Engineering Department's estimated cost if it was to be formally bid out will save time and substantial cost by utilizing the developer's contractor who will be on-site constructing streets for the developer's project. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional situation exists in which competitive bidding is deemed not feasible or practical and therefore waives the requirements of formal competitive bidding and approves a Cost Share Agreement with Buffington Weir, LLC for the complete construction of Rupple Road Boulevard and accompanying multi -use trail pursuant to conditions, instructions and location agreed by the Fayetteville City Engineer through its property with the estimated amount to be paid by the City of Fayetteville not to exceed $2,295,267.72, for Buffington Weir, LLC to dedicate all necessary right of way for Rupple Road through its 68 acre parcel upon the annexation and agreed rezoning of their property, and for both parties to abide by all other terms and conditions of their Cost Share Agreement. PASSED and APPROVED on 11/8/2018 Approved: Attest: Sondra E. Smith, City Clerk Treasurer t���F,�`•� gSf'�• ;FAYETTEVILLE:; .' �h 0cJ�.'tti`'�, Page 2 Printed on 1115/18 City of Fayetteville, Arkansas 1 - 1 Text File File Number: 2018-0612 Agenda Date: 11/8/2018 Version: 1 In Control: City Council Meeting Agenda Number: D. 8 BUFFINGTON WEIR, LLC COST SHARE AGREEMENT: AN ORDINANCE TO WAIVE THE REQUIREMENTS OF FORMAL APPROVE A COST SHARE AGREEMENT WITH BUFFINGTON WEIR, LLC'S CONTRACTOR TO CONSTRUCT THE FULL 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 YStatus: Passed File Type: Ordinance COMPETITIVE BIDDING AND WEIR, LLC FOR BUFFINGTON LANDSCAPED BOULEVARD SECTION OF RUPPLE ROAD AND ACCOMPANYING MULTI -USE TRAIL THROUGH THEIR PROPERTY UPON FREELY DEDICATED RIGHT OF ESTIMATED AMOUNT TO BE PAID BY THE CITY OF FAYETTEVILLE ALL THE WAY WAY WITH THE NOT TO EXCEED $2,295,267.72 UPON THE ANNEXATION, REZONING AND DEVELOPMENT APPROVAL OF BUFFINGTON WEIR, LLC'S PROPERTY PURSUANT TO THE FAYETTEVILLE PLANNING DEPARTMENT'S RECOMMENDATIONS DETAILED IN THE AGREEMENT AND TO AUTHORIZE MAYOR JORDAN TO SIGN THE AGREEMENT WHEREAS, Buffington Weir, LLC desires to purchase about 68 acres from the McFarland Family Trust along the designed route of Rupple Road if the property would be annexed into Fayetteville and be rezoned and approved for development pursuant to the Planning Department's recommendations; and WHEREAS, the City of Fayetteville would benefit from the Buffington Weir, LLC's annexation, development, dedication of Rupple Road right of way dedication and cost share using the developer's construction company to extend Rupple Road further North as part of the interior "Mayor's Box" boulevard to relieve traffic congestion from I-49 intersections with Martin Luther King Boulevard, Wedington Boulevard and Porter Road and to help Fayetteville citizens and others better access Uptown Fayetteville's commercial and restaurant areas from the West without having to utilize 1-49; and WHEREAS, waiving formal competitive bidding and using Buffington Weir, LLC's construction company at a guaranteed maximum cost that is less than our Engineering Department's estimated cost if it was to be formally bid out will save time and substantial cost by utilizing the developer's contractor who will be on-site constructing streets for the developer's project. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional situation exists in which competitive bidding is deemed not feasible or practical and therefore waives the requirements of formal competitive bidding and approves a Cost Share Agreement with Buffington Weir, LLC City of Fayetteville, Arkansas Page 1 Printed on 11/912018 File Number.' 2018-0612 for the complete construction of Rupple Road Boulevard and accompanying multi -use trail pursuant to conditions, instructions and location agreed by the Fayetteville City Engineer through its property with the estimated amount to be paid by the City of Fayetteville not to exceed $2,295,267.72, for Buffington Weir, LLC to dedicate all necessary right of way for Rupple Road through its 68 acre parcel upon the annexation and agreed rezoning of their property, and for both parties to abide by all other terms and conditions of their Cost Share Agreement. City of Fayetteville, Arkansas Page 2 Printed on 111912018 City of Fayetteville Staff Review Form 2018-0612 Legistar File ID 11/8/2018 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item Garner Stoll 10/23/2018 CITY PLANNING (630) Submitted By Submitted Date Division / Department Action Recommendation: ADMINISTRATIVE ITEM (NORTH OF N. RUPPLE RD./MCFARLAND FAMILY TRUST, 244): Submitted by CITY STAFF for properties located NORTH OF N. RUPPLE ROAD. The properties are in the FAYETTEVILLE PLANNING AREA and contain approximately 68.65 acres. The request is for a cost -share agreement in association with an annexation. Budget Impact: Account Number Fund Project Number Project Title Budgeted Item? NA Current Budget $ Funds Obligated $ 1 —.1 Current Balance $ _ - Does item have a cost? No Item Cost Budget Adjustment Attached? NA Budget Adjustment Remaining Budget V20180321 Purchase Order Number: Previous Ordinance or Resolution # Change Order Number: Approval Date: Original Contract Number: Comments: CITY OF _ FAYETTEVILLE ARKANSAS MEETING OF NOVEMBER 8, 2018 TO: Mayor and City Council THRU: Garner Stoll, Development Services Director FROM: Jonathan Curth, Senior Planner Andrew Garner, City Planning Director DATE: October 23, 2018 CITY" COUNCIL MEMO SUBJECT: ADMINISTRATIVE ITEM (NORTH OF N. RUPPLE RD./MCFARLAND FAMILY TRUST, 244): Submitted by CITY STAFF for properties located NORTH OF N. RUPPLE RD. The properties are in the FAYETTEVILLE PLANNING AREA and contain approximately 68.65 acres. The request is for a cost -share agreement in association with an annexation. RECOMMENDATION: The City Planning staff recommend approval of a request to annex the property described and shown in the attached Exhibits 'A' and 'B', subject to a cost -share agreement with the developer, Buffington Wier, LLC, as follows: 1. Sufficient right-of-way shall be dedicated by the developer upon annexation as designated by the City Engineer to construct and use for the planned extension of Rupple Road; 2. The developer shall either construct the full boulevard section of Rupple Road through the parcel, with payment of its proportionate share (6.59%) for engineering and construction up to 150% of the estimated $1,638,131.00 cost, or pay its proportionate share should the City of Fayetteville construct the portion of Rupple Road first; 3. Upon approval of development proposal, park land easements and trail rights-of-way shall be donated and dedicated, which can be claimed as credits for park land dedication if conveyed fee simple; 4. Upon final plat approval, conservation and tree easements will be dedicated or donated; and 5. The 4.24 acre parcel proposed for rezoning to NS -G, Neighborhood Services, General, shall not permit residential development or uses on the ground floor. Residential uses are permitted on the second floor. BACKGROUND: The subject property constitutes approximately 69 acres bordered on the north and west by unincorporated Washington County land and Fayetteville corporate city limits on the east and south. The property is developed with two single-family homes, one of which was built in 1916 and the other in 1985. The property has access to both City water and sanitary sewer. Currently, the zoning designation on the property is Washington County Ag/SF Res 1 unit/ac, which allows for agricultural and single-family uses on lots of no less than one acre. Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 Request: Staff requests Council consideration and approval of the attached cost share agreement in association with ANX 17-5990, an annexation request for 68.65 acres northwest of Fayetteville in unincorporated Washington County. DISCUSSION: On November 27, 2017, the Planning Commission denied the applicant's request to annex the property in to the City of Fayetteville by a vote of 8-1-0. Commissioner Noble voted 'no'. The applicant has appealed the Planning Commission's decision to the City Council along with an amended request to rezone the same property. On January 16, 2018, The City Council tabled the request indefinitely at the request of the applicant. At the meeting two members of the public spoke, expressing concern about potential traffic and a desire to keep the City Plan 2030 goals in mind during any future negotiation. BUDGET/STAFF IMPACT: N/A Attachments: • Exhibit A COST SHARE AGREEMENT The City of Fayetteville ("City") and Buffington Weir, LLC (`Buffington") enter into this Cost Share Agreement concerning the Buffington Weir, LLC's (soon to be acquired) property of approximately 68 acres adjoining the city limits of Fayetteville and along the proposed location of the expansion of Rupple Road. WHEREAS, Buffington Weir, LLC would like to purchase and annex a parcel containing approximately 68 acres (hereinafter which may be referred to as its "parcel") into the City of Fayetteville so it may be more efficiently and economically developed; and WHEREAS, the McFarland Family Trust (current owner) has secured the authorization of the Washington County Judge to permit such annexation of the parcel into Fayetteville; and WHEREAS, the McFarland Family Trust has an agreement to sell the land to Buffington Weir, LLC after the City's approval of the annexation, rezoning and a preliminary plat as recommended by the Planning Department; and WHEREAS, Buffington Weir, LLC has offered to donate and dedicate sufficient right of way for the planned expansion of Rupple Road including a multi -use trail along its property's eastern border and enter into this Cost Share Agreement for the engineering and construction of the Rupple Road Boulevard section and multi -use trail all the way through its parcel by its own engineer and construction company paying for its fair- share of the engineering and construction costs based upon anticipated usage with the City paying the remainder, but not to exceed a total of Two Million Two Hundred Ninety -Five Thousand Two hundred Sixty -Seven Dollars and seventy-two cents ($2,295,267.72); and WHEREAS, Buffington Weir, LLC has offered to preserve the natural habitat in certain areas and to allow for the extension of parks and trails to expand Fayetteville's trail networl< and parkland areas to better serve this part of the City; and WHEREAS, the City ol'Fayetteville welcomes such annexation request with such offers of right of way dedication, construction of the portion of Rupple Road Boulevard with multi -use trail that goes through the parcel, conservation and tree preservation easements. Page 1 of"I NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED BY THE CITY OF FAYETTEVILLE, ARKANSAS AND BUFFINGTON WEIR, LLC: (A) The City of Fayetteville agrees: (l) To approve the request of the McFarland Family Trust and/or Buffington Weir, LLC to annex its parcel totaling approximately 68 acres into Fayetteville. (2) To rezone this property to ensure that Buffington Weir, LLC's property will be able to utilize a mix of the residential zoning designations Residential Single Family 4 units per acre (RSF-4) and Neighborhood Conservation (NC) pursuant to the recommendation of the Planning Department. (3) To approve a request from the Buffington Weir, LLC to rezone an approximately 4.24 acre parcel adjoining the intersection of the proposed Rupple Road and the extension of Lierly/Weir Road to Neighborhood Services General (NS -G) which allows for a commercial node development with shops, restaurants, cafes, coffee shops, ice cream shops, etc. to serve this residential development and the surrounding residential neighborhoods. (4) To accept from Buffington Weir, LLC a donation or dedication to the City of Fayetteville of sufficient right of way along the property as identified and designed by the City Engineer so that the City of Fayetteville or Buffington Weir, LLC may construct and use the planned extension of Rupple Road with multi -use trail. (See attached general plan.) (5) If the citizens vote to renew the one cent sales and use tax bond program with money for roads and streets in 2019, the City of Fayetteville agrees to use proceeds from the bond program to reimburse Buffington Weir, LLC 93.41% of its actual costs to engineer and construct Rupple Road as a full boulevard with multi -use trail through its property as approved by the City Engineer up to a guaranteed maxima n of Two Million Two Hundred Ninety -Five Thousand Two Hundred Sixty -Seven Dollars and seventy-two cents ($2,295,267.72). These reimbursements shall be made as Buffington Weir, LLC pays its contractor and engineer as this boulevard project progresses toward completion and provides adequate proof thereof to the City in a monthly or quarterly manner. (B) Buffington Weir, LLC agrees: (1) Upon purchasing the approximate 68 acres fi-om the McFarland Family 'I rust and the parcel's annexation, rezoning and development approval as recommended by the City Planning Department, Buffington Weir_ I_.LC will donate or dedicate to the City of Fayetteville sufficient right of way Pace 2 of 4 along its property as identified and designated by the City Engineer to construct and use for the planned extension of Rupple Road as a full boulevard with accompanying multi -use trail. (See attached general plan (2) If the citizens renew the one cent sales and use tax bond program in 2019 with money for roads and streets, Buffington Weir, LLC promises to and will construct the full boulevard section of Rupple Road with accompanying multi -use trail all the way through its parcel prior to Final plat approval. Buffington Weir, LLC agrees that it will pay its proportionate share (6.59%) of the engineering and construction costs up to 150% of its engineer's estimate of $1,638,131.00 and 100% of any engineering or construction costs in excess of that amount so that the City of Fayetteville's guaranteed maximum amount of this cost shall not exceed Two Million Two Hundred Ninety -Five Thousand Two Hundred Sixty - Seven Dollars and seventy-two cents ($2,295,267.72). Buffington Weir, LLC acknowledges and agrees that this construction and cost requirement is roughly proportional to the impact the proposed development will have on the City's existing infrastructure and the need to serve the citizens within the new subdivision. (3) If the City constructs Rupple Road as a boulevard and the multi -use trail on the donated or dedicated right of way prior to Buffington Weir, LLC constructing its portion of the road and trail, Buffington Weir, LLC agrees to reimburse the City for its proportionate share (6.59%) of the engineering and construction costs in addition to the voluntary free dedication of the right of way. - (4) If the citizens fail to renew the one cent sales and use tax bond program with money for roads and streets in 2019 and the City does not offer to use other resources to fully fund the City's portion for the boulevard section through the property, Buffington Weir, LLC may develop its property by constructing at its own cost only one side of the Rupple Road boulevard section as a local street through its property and does not have to construct the multi -use trail or planted median to fulfill its street construction requirements for its final plat. (5) Upon the approval of the Buffington's initial development proposal, Buffington will donate and dedicate park land easements and trail right of ways. Buffington shall be entitled to claim park land dedication credits for all such donated or dedicated parks & trails right of way if conveyed in fee simple to the City. Pagc 3 ol'4 (C) Upon the approval of Final Plat by the City of Fayetteville, Buffington will donate or dedicate conservation and tree preservation easements. (7) The approximate 4.24 acre parcel proposed for rezoning to NS -G, Neighborhood Services, General shall not allow any residential development or use on the ground floor. Residential use may be allowed on the second floor and above. IN AGREEMENT with all of the terms, conditions, duties, and promises above, we sign our names below as the legal and proper signatories for the City of Fayetteville and Buffington Weir, LLC. This Cost Share Agreement shall be effective on the date of its final execution by all parties. CITY OF FAYETTEVILLE, ARKANSAS r By • Date: %/ : /y- alb% Y Lioneld,� r n, ]Mayor ATTEST: „ r, Date: i -��%0�[7/Y Sondra E. Smith, City Clerj �uT*ro 06, 'r -AYE �rn� ]7EUlLI_ BUFFING 16 �q-sWEIR Ik,' #rte +��y5� A Date: Printed name By: —_ 6 -- Signature Page 4 of'4 o,23 -/fig ee Title/Management position Crafton Tull axchileclure I engineering I surveying 300 North College Ave, Suite 317, Fayetteville, AR 72701 479.636.4838 Preliminary Quantity Takeoff For Rupple Road Boulevard Section - 24' BIB (X2), 1,904 L.F., 12' Trall, S' Sidewalk (See Attached) SITEWORK Earthwork Clear and Grub Onsfte Cut Material Select FII! Sub -total UTILITIES Storm Drainage 18" RCP Class III 24" RCP Class III 30" RCP Class III 36" RCP Class III Drainage Structures 4' Clameter Reinforced Concrete Curb Inlet 6 Diameter Reinforced Concrete Curb Inlet 4' Curb Inlet Extension 8' Curb Intel Extension Sub -total STREETS & PAVING Pavements 2" ACHM Surface Course 3" ACHM Base Course B" Class 7 Aggregate Base Course Curb and Gutter 6 Sidewalk (West Side Only) Sub -total October 23, 2018 Weir/ Rupple Road Subdivlson Fayetteville, AR Oliantity Unit Unit Cost Total 2.4 tAC S&F,fl4a.o0 i 13, 373 7.Q0 $83,611.00 _- -- 15.378 it -.-Y. 515.aa. I _ anon, r ..n $333,$a1,Do - -- 10.4-42 S.Y. _ Tl 5. Siss,834.v0 10;442 S.Y. $17.00 $177,514.00 11,267 S.Y $10.00 T- $112 6?0 00 t12fi70.00 7;424 L.F. --- F ;4.00 �$103,936.00 1,1 $45.01 - — $504,345.00 Misc. _$52.00 .� ^SM.640.00 rt _ 925 L _ 925 ,L.,F. -- _ ' - --`- 12 Ir4CW --•- • ^ $948.00 $72,150.00 Signage Sin a Trail - 12' Regular Section (4" Thickness) 57$.00 675 L. F. _ _ _ $85,00 _ _ _$64.125.00 ~�— 87EAC-H a- [EACH -�__.. _ t 52 s5a.0o �a,z7s.0a Striping - 12 (EACH_ $t#?0.p0 51,800.00 _ _..... $1,000.00 — $[1.000,00 _ $6.440.00 _a 7,690 SY _ _..__ ... $3.00 $ — $313,375.00 -- 10.4-42 S.Y. _ Tl 5. Siss,834.v0 10;442 S.Y. $17.00 $177,514.00 11,267 S.Y $10.00 T- $112 6?0 00 t12fi70.00 7;424 L.F. --- F ;4.00 �$103,936.00 1,1 $45.01 - — $504,345.00 Misc. Handicap Ramps - --`- 12 Ir4CW --•- • ^ $948.00 — —�� $11.340.00 r Signage Sin a Trail - 12' Regular Section (4" Thickness) 10 E�4CH 2,443 SY 0.00 $45.00 $3,500.00 $10.9,935._0.0 4' Class 7 Aggregate Base Course (Trail) k _ $77,154.00 Striping .... _ 1 l.5 .... $15,000000 - - - - 515.000.00 Slreeliights - _ _ EACH _..... $1,000.00 — $[1.000,00 Sod IS BOC, Greenspace Areas) _a 7,690 SY _ _..__ ... $3.00 $ $23,040.0[] Street reel - 52 EACH .._ ...... $300.00 $15,600,00 Irrigation 1 'LS $.15,00_0.00 x15,000.00 Quadd Electrical Caidult InstoElartnn 544 -L.F, ) SE5.1] $18,040.00 Sub -,neat $237,609.00 Subtotal Engineering $1,489,210.00 TOTAL $148,921.00 $1,638,131.00 N �a W Q W ir Of O IL O n. � HO W z > O Oa 32 m cyorn J ix O Q. Q N CL >. D w a RECEIVED DEC 112018 117Y OF FAYEMMUE— mc'0"cffl`NoRTHwEsT ♦ 1 Demomt i t ^"'.0.6,01X 1607. FAYE'?EVILLE, AR, 72702 - 479-442-1700 -FAX: 479-695-1118 • 4'4!`.;JW^dWAD&COM AFFIDAVIT OF PUBLICATION I Cathy Wiles, do solemnly swear that I am the Legal Clerk of the Northwest Arkansas Democrat -Gazette, printed and published in Washington County and Benton County, Arkansas, and of bona fide circulation, that from my own personal knowledge and reference to the files of said publication, the advertisement of: CITY OF FAYETTEVILLE Ord 6109 Was inserted in the Regular Edition on: November 22, 2018 Publication Charges: $ 184.60 Cathy Wiles Subscribed and sworn to before me This S+- day of pu , 2018. Notary Public My Commission Expires: j_fb-ZS **NOTE** Please do not pay from Affidavit. Invoice will be sent. Ordinance: 6109 File Number: 2018-0612 BUFFINGTON WEIR, LLC COST SHARE AGREEMENT: AN ORDINANCE TO WAIVE -THE REQUIREMENTS OF FORMAL COMPETITIVE BIDDING AND APPROVE A COST SHARE AGREEMENT WITH BUFFINGTON WEIR, LLC FOR BUFFINGTON WEIR, LLC'S CONTRACTOR TO CONSTRUCT THE FULLY LANDSCAPED BOULEVARD SECTION OF RUPPLE ROAD AND ACCOMPANYING MULTI -USE TRAIL ALL THE WAY THROUGH THEIR PROPERTY UPON FRE=ELY DEDICATED RIGHT OF WAY WITH THE ESTIMATED AMOUNT TO BE PAID BY THE CITY OF FAYETTEVILLE NOT T'O EXCEED $2,295,267.72 UPON THE ANNEXATION, REZONING AND DEVELOPMENT APPROVAL OF BUFFINGTON WEIR, LLC'S PROPERTY PURSUANT TO THE FAYETTEVILLE PLANNING DEPARTMENT'S RECOMMENDATIONS DETAILED IN THE AGREEMENT AND TO AUTHORIZE MAYOR JORDAN TO SIGN THE AGREEMENT WHEREAS, Buffington Weir, LLC desires to purchase about 68 acres from the McFarland Family Trust along the designed retire of Rupple Road if the property would be annexed into Fayetteville and be rezoned and approved for development pursuant to the Planning Department's recommendations; and WHEREAS, the City of Fayetteville would benefit from the Buffington Weir, LLC's annexation, development, dedication of Rupple Road right of way dedication and cost share using the developer's construction company to extend Rupple Road further North as part of the interior "Mayor's Box" boulevard to relieve traffic congestion from 1-49 intersections with Martin Luther King Boulevard, Wedingion Boulevard and Porter Road and to help Fayetteville citizens and others better access Uptown Fayetteville's commercial and restaurant areas from the West without having to utilize I- 49; and WHEREAS, waiving formal competitive bidding and using Buffington Weir, LLC's construction company at a guaranteed maximum' cost that is less than our Engineering Department's estimated cost if it was to be formally bid out will save time and substantial cost by utilizing the developer's contractor who will be on-site constructing streets for the developer's project. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional situation exists in which competitive bidding is deemed not feasible or practical and therefore waives the requirements of formal competitive bidding and approves a Cost Share Agreement with Buffington Weir, LLC for the complete construction of Rupple Road Boulevard and accompanying multi -use trail pursuant to conditions, instructions and location agreed by the Fayetteville City Engineer through its property with the estimated amount to be paid by the City of Fayetteville not to exceed $2,295,267.72, for Buffington Weir, LLC to dedicate all necessary right of way for Rupple Road through its 68 acre parcel upon dee annexation and agreed rezoning of their property, and for both parties to abide by all other teens and conditions of their Cost Share Agreement. PASSED and APPROVED on 11/8/2018 Approved: Lioneld Jordan, Mayor Attest: Sondra E. Smith, City Clerk Treasurer 74754303 Nov. 22, 2018 Collateral Assignment and Grant of Security Interest and Cost Share Agreement City of Fayetteville Staff Review Form between Buffington Weir, LLC and Centennial Bank 2019-0780 Legistar File ID N/A City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item Blake Pennington 11/8/2019 CITY ATTORNEY (021) Submitted By Submitted Date Division / Department Action Recommendation: Mayor's signature consenting to a Collateral Assignment and Grant of Security Interest in and to Cost Share Agreement between Buffington Weir, LLC and Centennial Bank. Centennial Bank has asked Buffington Weir to execute the document to obtain financing for its proposed development along Rupple Road and the City's consent is required. Account Number Project Number Budgeted Item? NA Does item have a cost? NA Budget Adjustment Attached? NA Purchase Order Number: Change Order Number: Original Contract Number: Comments: Budget Impact: Current Budget Funds Obligated Current Balance Item Cost Budget Adjustment Remaining Budget Fund Project Title $ 0 V20180321 Previous Ordinance or Resolution # Ord 6109 Approval Date: 11/22/19 4 DEPAR'rMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan FROM: Blake Pennington, Assistant City Attorney DATE: November 8, 2019 Kit Williams City Attorney Blake Pennington Assistant City Attorney Jodi Batker Paralegal RE: Collateral Assignment and Grant of Security Interest in and to Cost Share Agreement On November 8, 2018, the City Council approved an ordinance to waive competitive bidding and authorize a Cost Share Agreement with Buffington Weir, LLC for the extension of Rupple Road, contingent on a successful annexation and rezoning of the property. You signed the Agreement on November 14, 2018. Buffington Weir, LLC is now requesting that the City of Fayetteville consent to a Collateral Assignment and Grant of Security Interest in and to Cost Share Agreement that its lender, Centennial Bank, has required to finance a $4.2 million -dollar loan. The document would allow the bank to act in the place of Buffington Weir with respect to the duties, obligations and benefits conferred by the Cost Share Agreement in the event something happens to the developer. While this does not obligate the bank to perform what Buffington Weir has agreed to, it does allow Buffington Weir to obtain financing for the project and also provides that Centennial Bank may stand in the place of Buffington Weir with respect to completing the project. Consenting, therefore, makes it more likely that the entire project will be completed. It places no additional obligations on the City and does not extend any benefit to Centennial Bank unless Buffington Weir defaults on its loan payments. Our office has reviewed the document and recommends consenting to the Collateral Assignment and Grant of Security Interest in and to Cost Share Agreement as requested by Buffington Weir and Centennial Bank. Loan No. xxxxxxx1136 Type of Instrument: Collateral Assignment and Grant of Security Interest in and to Cost Share Agreement Assignor: Buffington Weir, LLC Assignee: Centennial Bank This Instrument Prepared By: Waddell, Cole & Jones, PLLC Attorneys at Law P.O. Box 1700 Jonesboro, Arkansas 72403 After recording Return to: Waddell, Cole & Jones, PLLC Attorneys at Law P.O. Box 1700 Jonesboro, Arkansas 72403 COLLATERAL ASSIGNMENT AND GRANT OF SECURITY INTEREST IN AND TO COST SHARE AGREEMENT THIS COLLATERAL ASSIGNMENT AND GRANT OF SECURITY INTEREST IN AND TO COST SHARE AGREEMENT is made as of October Za, 2019, by and between BUFFINGTON WEIR, LLC, an Arkansas limited liability company, P.O. Box 8519, Fayetteville, AR 72703 ("Assignor") and CENTENNIAL BANK, an Arkansas banking corporation, P. O. Box 10890, Fayetteville, AR 72703 ("Assignee"). WITNESSETH: WHEREAS, Assignee has agreed to make a loan to Assignor in the sum of Four Million Two Hundred Thirteen Thousand Two Hundred Sixty -Two and No/ 100 Dollars ($4,213,262.00) ("New Loan"); and WHEREAS, as an inducement for and in consideration of the New Loan from Assignee to Assignor, Assignor has agreed to assign to Assignee all of Assignor's right, title, and interest in the Cost Share Agreement, dated November 14, 2018, between Assignor and the City of Fayetteville, Arkansas ("City") for the Rupple Road Extension. NOW, THEREFORE, for and in consideration of the mutual agreements and covenants herein contained, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO, as follows: 1. Assignment and Grant of Security Interest. To secure the payment and performance of the New Loan and all obligations of Assignor under the Loan Documents for the New Loan, Assignor hereby assigns, transfers, and conveys unto Assignee, and grants to Assignee a security interest in and to, all of its right, title, and interest in and to the Cost Share Agreement. Assignor authorizes Assignee at any time to file such financing statements necessary or desirable in Assignee's sole discretion to maintain the perfection and priority of Assignee's lien and security interest. 2. Performance of Cost Share Agreement. Assignor agrees to faithfully abide by, perform, and discharge each and every obligation, covenant, and agreement of Assignor under the Cost Share Agreement. 3. Protect Security. Assignor agrees, at its sole cost and expense, to appear in and defend any action or proceeding arising under, growing out of, or in any manner connected with the Cost Share Agreement or the obligations, duties, or liabilities of Assignor thereunder and to pay all costs and expenses of Assignee, including attorneys' fees in a reasonable sum, at any such action or proceeding in which Assignee in its sole discretion may appear. 4. Representations and Warranties. Assignor hereby represents and warrants to Assignee: (a) that it has full right and title to assign the Cost Share Agreement; (b) that no other assignment of any interest therein has been made by Assignor; and (c) that there are no existing defaults of a material nature by Assignor under the provisions of the Cost Share Agreement. 5. Absolute and Present Assignment. It is understood and agreed that the Assignment granted herein shall constitute a perfected, absolute, and present assignment from Assignor to Assignee and not an assignment for security purposes only. 6. Remedies Upon Event of Default. Assignor agrees that Assignee may upon and during the occurrence and continuation of an Event of Default (as defined in the Loan Documents) and without notice or demand of any kind, (a) notify the City to make payment to Assignee of any amounts due under the Cost Share Contract; (b) in Assignor's name or Assignee's name enforce collection of any sums due under the Cost Share Contract by suit or otherwise; (c) receive all proceeds of the Cost Share Contract and apply such proceeds to the indebtedness evidenced by the New Loan and Loan Documents; and (d) exercise and enforce any or all rights and remedies available upon default to a secured party under the Uniform Commercial Code; and if notice to Assignor of any intended disposition of the Cost Share Contract or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given at least ten (10) calendar days prior to the date of intended disposition or other action; and/or (e) exercise or enforce any or all other rights or remedies available to Assignee by law or agreement against the Cost Share Contract, against Assignor or against any other person or property. 7. Attorney -in -Fact. Assignor irrevocable authorizes Assignee: (a) upon the occurrence and continuance of an Event of Default, to endorse and collect any cash proceeds of the Cost Share Contract; and (b) to exercise any other rights or remedies hereunder and execute and deliver during the term of this Assignment such instruments as Assignee may deem necessary to make this Assignment and any further assignment effective. All acts of said attorney or designee in compliance with this Assignment are hereby ratified and approved. The powers conferred on Assignee under this paragraph 7 are solely to protect Assignee's interests in the Cost Share Contract and shall not impose any duty upon Assignee to exercise any such powers. -2- 8. No Obligation Upon Assignee. Assignee's acceptance of this Assignment shall not obligate Assignee to appear in nor defend any proceeding relating to the Cost Share Agreement, take any action hereunder, expend any money, incur any expenses, or perform any obligation or liability under the Cost Share Agreement. Notwithstanding the foregoing, should Assignor fail to perform, comply with, or discharge any obligations of Assignor under the Cost Share Agreement, Assignee may, at its sole discretion, and without waiving or releasing Assignor from any obligation contained in this Assignment or the Loan Documents, remedy such failure and/or pay any remaining sums due under the Cost Share Agreement. In such event, Assignor hereby agrees to repay upon demand any and all such sums incurred by Assignee, together with interest at the rate then in effect under the terms of the Loan Documents. All such sums, together with interest as aforesaid, shall become additional indebtedness due under the Loan Documents and secured by the Loan Documents, but no such event shall be deemed to relieve Assignor from any default hereunder or thereunder. 9. Assignor to Hold Assignee Harmless. Assignor shall and does hereby agree to indemnify and hold Assignee harmless of and from any and all liability, loss, or damage which it may or might incur under the Cost Share Agreement or by reason of this Assignment and of and from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in the Cost Share Agreement. Should Assignee incur any such liability, costs, or expenses in the defense of any such claims or demands, the amount thereof, including costs, expenses, and reasonable attorneys' fees, shall be added to the indebtedness evidenced by the Loan Documents and secured by the Loan Documents and Assignor shall reimburse Assignee therefore immediately upon demand, and the continuing failure of Assignor to do so shall constitute a default hereunder and an Event of Default under the Loan Documents. 10. Collateral Assignment Satisfaction. Upon the payment in full of the indebtedness evidenced by the Loan Documents, this Assignment shall without the need for any further satisfaction or documentation become null and void and shall be of no further effect. 11. Successors and Assigns. This Assignment and each and every covenant, agreement, and provision hereof shall be binding upon Assignor, and its successors and assigns, including, without limitation, each and every record owner of Assignor or any other person or entity having an interest therein and shall inure to the benefit of Assignee, and its successors and assigns. As used herein, the words "successors and assigns" shall also be deemed to mean the heirs, executors, representatives, and administrators of any natural person who is a party to this Assignment. 12. Governing Law. This Assignment shall be governed by the laws of the State of Arkansas. 13. Validity Clause. It is the intent of the parties to this Assignment to confer to Assignee the rights and benefits hereunder to the full extent allowable by law. The unenforceability or invalidity of any provision hereof shall not render any other provision or provisions herein contained unenforceable or invalid. Any provisions found to be unenforceable or invalid shall be severable from this Assignment 14. Notices. Any notices that any party hereto may desire or may be required to give any other party shall be in writing and the mailing thereof by certified mail, or equivalent, to the respective -3- parties' addresses as set forth hereinabove or to such other place such party may by notice in writing designate as its address shall constitute service of notice hereunder. 15. Defined Terms. All capitalized terms used herein shall have the same meaning assigned such terms in the Loan Agreement executed by the parties of even date herewith, unless otherwise indicated by the context hereof. above. IN WITNESS WHEREOF, the parties have executed this Assignment on the date first set forth [SIGNATURE PAGE TO FOLLOW] CE ASSIGNOR: BUFFINGTON WEIR, LLC By: --gf�n� Name: Mike Lamberth, a Member of Buffington Weir, LLC NEVER STOP, LLC, Member of Buffington Weir, LLC By Clayton C. Carlton Revocable Trust U/A/D 9/26/05, Managing Member of Never Stop, LLC /2/ Agt-' By: Claytonarlton, Trustee of Clayton C. Carlton Vocable Trust U/A/D 9/26/05 VINTAGE HOLDINGS LLC, Member of Buffington Weir, LLC By The Michael Lane Buffington Trust U/A/D July 31, 2011, Member of Vintage Holdings LLC By: Michael Lan Buffington, Trustee of The Michael Lane Buffington Trust U/A/D July 21, 2011 ASSIGNEE: CENTENNIAL BANK By: Name: Chris Barton Title Senior Vice President 52 CONSENT TO ASSIGNMENT City of Fayetteville hereby consents to this assignment of the Cost Share Agreement to Centennial Rank on the terms stated herein C B' N T; rel ACKNOWLEDGMENT STATE OF ARKANSAS COUNTY OF WASHINGTON On this day before me, the undersigned, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioned and acting, personally appeared Mike Lamberth, to me well known, and who subscribed to the foregoing instrument and stated and acknowledged that he was a member of Buffington Weir, LLC, an Arkansas limited liability company, and that he as such member, being authorized so to do, had signed, executed, and delivered the foregoing instrument for the consideration, uses, and purposes therein contained, by signing himself as such member and executing oil behalf of the company as such member. WITNESS my hand and seal on this2g$ay of October, 2019. ANNA TRA LY OR Notary Public-gArrka_�xxnsas t y4tigAM0A8�� W1138'•18-2022 Commission # 12386489 STATE OF ARKANSAS COUNTY OF WASHINGTON Notary Public ACKNOWLEDGMENT On this day before me, the undersigned, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioned and acting, personally appeared Clayton C. Carlton, Trustee of Clayton C. Carlton Revocable Trust U/A/D 9/26/05 ("Trust"), to me well known, and who subscribed to the foregoing instrument and stated and acknowledged that the Trust is the Managing Member of Never Stop, LLC, a Member of Buffington Weir, LLC, an Arkansas limited liability company, and that he as such Trustee, being authorized so to do, had signed, executed, and delivered the foregoing instrument for the consideration, uses, and purposes therein contained, by signing himself as such Trustee of the Managing Member of the Member. WITNESS my hand and seal on this2rday of October, 2019. My N ®I1 XII)SQsas Johnson County 18-2022 Commission # 12386489 Notary Public -7- ACKNOWLEDGMENT STATE OF ARKANSAS COUNTY OF WASHINGTON On this day before me, the undersigned, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioned and acting, personally appeared Michael Lane Buffington, Trustee of Michael Lane Buffington, Trustee of the Michael Lane Buffington Trust u/a/d July 21, 2011 ("Trust"), to me well known, and who subscribed to the foregoing instrument and stated and acknowledged that the Trust is the Managing Member of Vintage Holdings LLC, a Member of Buffington Weir, LLC, an Arkansas limited liability company, and that he as such Trustee, being authorized so to do, had signed, executed, and delivered the foregoing instrument for the consideration, uses, and purposes therein contained, by signing himself as such Trustee of the Managing Member of the Member. WITNESS my hand and seal on thisay of October, 2019. Notary Public ANNA TRAYLOR E wffl g5flolil""9@ as Johnson C unty x fres 03-1 B-2022 mmission # 12386489 ACKNOWLEDGMENT STATE OF ARKANSAS COUNTY OF WASHINGTON On this day before me, the undersigned, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioned and acting, personally appeared Chris Barton, to me well known, and who subscribed to the foregoing instrument and stated and acknowledged that he was Senior Vice President of Centennial Bank, and that he as such officer, being authorized so to do, had signed, executed, and delivered the foregoing instrument for the consideration, uses, and purposes therein contained, by signing himself as such officer and executing on behalf of the company as such officer. WITNESS my hand and seal on this2x5tray of October, 2019. Notary Public "��"�� A T��gqYLOR My C'PWbq�� 9�?iireww6aias Johnson County my Corn 3-18-2022 Commission # 12386489 FAUSERSAWMccn1cmial bank\Bulrmglon Weir. LLOCollalcral Aexignmcnl ofCosl Share Agrccmcn1.wpd 113 west Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 6109 File Number: 2018-0612 BUFFINGTON WEIR, LLC COST SHARE AGREEMENT: AN ORDINANCE TO WAIVE THE REQUIREMENTS OF FORMAL COMPETITIVE BIDDING AND APPROVE A COST SHARE AGREEMENT WITH BUFFINGTON WEIR, LLC FOR BUFFINGTON WEIR, LLC'S CONTRACTOR TO CONSTRUCT THE FULLY LANDSCAPED BOULEVARD SECTION OF RUPPLE ROAD AND ACCOMPANYING MULTI -USE TRAIL ALL THE WAY THROUGH THEIR PROPERTY UPON FREELY DEDICATED RIGHT OF WAY WITH THE ESTIMATED AMOUNT TO BE PAID BY THE CITY OF FAYETTEVILLE NOT TO EXCEED $2,295,267.72 UPON THE ANNEXATION, REZONING AND DEVELOPMENT APPROVAL OF BUFFINGTON WEIR, LLC'S PROPERTY PURSUANT TO THE FAYETTEVILLE PLANNING DEPARTMENT'S RECOMMENDATIONS DETAILED IN THE AGREEMENT AND TO AUTHORIZE MAYOR JORDAN TO SIGN THE AGREEMENT WHEREAS, Buffington Weir, LLC desires to purchase about 68 acres from the McFarland Family Trust along the designed route of Rupple Road if the property would be annexed into Fayetteville and be rezoned and approved for development pursuant to the Planning Department's recommendations; and WHEREAS, the City of Fayetteville would benefit from the Buffington Weir, LLC's annexation, development, dedication of Rupple Road right of way dedication and cost share using the developer's construction company to extend Rupple Road further North as part of the interior "Mayor's Box" boulevard to relieve traffic congestion from 1-49 intersections with Martin Luther King Boulevard, Wedington Boulevard and Porter Road and to help Fayetteville citizens and others better access Uptown Fayetteville's commercial and restaurant areas from the West without having to utilize 1-49; and WHEREAS, waiving formal competitive bidding and using Buffington Weir, LLC's construction Page 1 Printed on 1119118 Ordinance: 6109 company at a guaranteed maximum cost that is less than our Engineering Department's estimated cost if it was to be formally bid out will save time and substantial cost by utilizing the developer's contractor who will be on-site constructing streets for the developer's project. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional situation exists in which competitive bidding is deemed not feasible or practical and therefore waives the requirements of formal competitive bidding and approves a Cost Share Agreement with Buffington Weir, LLC for the complete construction of Rupple Road Boulevard and accompanying multi -use trail pursuant to conditions, instructions and location agreed by the Fayetteville City Engineer through its property with the estimated amount to be paid by the City of Fayetteville not to exceed $2,295,267.72, for Buffington Weir, LLC to dedicate all necessary right of way for Rupple Road through its 68 acre parcel upon the annexation and agreed rezoning of their property, and for both parties to abide by all other terms and conditions of their Cost Share Agreement. PASSED and APPROVED on 11/8/2018 Attest: Page 2 Printed an 11/9118 tai^1.L< .f Sondra E. Smith, City Clerk Treasurer FAYETI Vltrt_ _ C7 Page 2 Printed an 11/9118 COST SHARE AGREEMENT The City of Fayetteville ("City") and Buffington Weir, LLC ("Buffington") enter into this Cost Share Agreement concerning the Buffington Weir, LLC's (soon to be acquired) property of approximately 68 acres adjoining the city limits of Fayetteville and along the proposed location of the expansion of Rupple Road. WHEREAS, Buffington Weir, LL,C would like to purchase and annex a parcel containing approximately 68 acres (hereinafter which may be referred to as its "parcel") into the City of Fayetteville so it may be more efficiently and economically developed; and WHEREAS, the McFarland Family Trust (current owner) has secured the authorization of the Washington County Judge to permit such annexation of the parcel into Fayetteville; and WHEREAS, the McFarland Family Trust has an agreement to sell the land to Buffington Weir, LLC after the City's approval of the annexation, rezoning and a preliminary plat as recommended by the Planning Department; and WHEREAS, Buffington Weir, LLC has offered to donate and dedicate sufficient right of way for the planned expansion of Rupple Road including a multi -use trail along its property's eastern border and enter into this Cost Share Agreement for the engineering and construction of the Rupple Road Boulevard section and multi -use trail all the way through its parcel by its own engineer and construction company paying for its fair share of the engineering and construction costs based upon anticipated usage with the City paying the remainder, but not to exceed a total of Two Million Two Hundred Ninety -Five Thousand Two Hundred Sixty -Seven Dollars and seventy-two cents ($2,295,267.72); and WHEREAS, Buffington Weir, LLC has offered to preserve the natural habitat in certain areas and to allow for the extension of parks and trails to expand Fayetteville's trail network and parkland areas to better serve this part of the City; and WHEREAS, the City of Fayetteville welcomes such annexation request with such offers of right of way dedication, construction of the portion of Rupple Road Boulevard with multi -use trail that goes through the parcel, conservation and tree preservation easements. Parc 1 ot,4 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREEDBY THE CITY OF FAYEYrEVTLLE, ARKANSAS AND BUFFINGTON WEIR, LLC: (A) The City of Fayetteville agrees: (1) To approve the request of the McFarland Family Trust and/or Buffington Weir, LLC to annex its parcel totaling approximately 68 acres into Fayetteville. (2) To rezone this property to ensure that Buffington Weir, LLCs property will be able to utilize a mix of the residential zoning designations Residential Single Family 4 units per acre (RSF-4) and Neighborhood Conservation (NC) pursuant to the recommendation of the Planning Department. (3) To approve a request from the Buffington Weir, LLC to rezone an approximately 4.24 acre parcel adjoining the intersection of the proposed Rupple Road and the extension of Lierly/Weir Road to Neighborhood Services General (NS -G) which allows for a commercial node development with shops, restaurants, cafes, coffee shops, ice create shops, etc. to serve this residential development and the surrounding residential neighborhoods. (4) To accept from Buffington Weir, LLC a donation or dedication to the City of Fayetteville of sufficient right of way along the property as identified and designed by the City Engineer so that the City of Fayetteville or Buffington Weir, LLC may construct and use the planned extension of Rupple Road with multi -use trail. (See attached general plan,) (5) 1f the citizens vote to renew the one cent sales and use tax bond program with money for roads and streets in 2019, the City of Fayetteville agrees to use proceeds from the bond program to reimburse Buffington Weir, LLC 93.41% of its actual costs to engineer and construct Rupple Road as a full boulevard with multi -use trail through its property as approved by the City Engineer up to a guaranteed maximwn of Two Million Two Hundred Ninety -hive Thousand Two Hundred Sixty -Seven Dollars and seventy-two cents ($2,295,267.72). These reimbursements shall be made as Buffington Weir, LLC pays its contractor and engineer as this boulevard project progresses toward completion and provides adequate proof thereof to the City in a monthly or quarterly manner. (B) Buffington Weir, LLC agrees: (1) Upon purchasing the approximate 68 acres from the McFarland Family '1 n.ist and the parcels annexation; rezoning and development approval as recommended by the City Planning Department, Buffington Weir, 11C will donate or dedicate to the Citv o1 l-aycttevil1e sufficient right of*way Page 2 o;'4 along its property as identified and designated by the City Engineer to construct and use for the planned extension of Rupple Road as a full boulevard with accompanying multi -use trail. (See attached general plan.) (2) If the citizens renew the one cent sales and use tax bond program in 2019 with money for roads and streets, Buffington Weir, LLC promises to and will construct the fill] boulevard section of Rupple Road with accompanying multiuse trail all the way through its parcel prior to final plat approval. Buffington Weir, .LLC agrees that it will pay its proportionate share (6.59%) of the engineering and construction costs up to 150% of its engineer's estimate of $1,638,131.00 and 100% of any engineering or construction costs in excess of that amount so that the City of Fayetteville's guaranteed maximum amount of this cost shall not exceed Two Million Two Hundred Ninety -Five Thousand Two Hundred Sixty - Seven Dollars and seventy-two cents ($2,295,267.72). Buffington Weir, LLC acknowledges and agrees that this construction and cost requirement is roughly proportional to the impact the proposed development will have on the City's existing infrastructure and the need to serve the citizens within the new subdivision. (3) If the City constructs Rupple Road as a boulevard and the multi -use trail on the donated or dedicated right of way prior to Buffington Weir, LLC constricting its portion of the road and trail, Buffington Weir, LLC agrees to reimburse the City for its!proportionate share (6.59%) of the engineering and construction costs in addition to the voluntary free dedication of the right of way. ' (4) If the citizens fail to renew the one cent sales and use tax bond program with money for roads and streets in 2019 and the City does not offer to use other resources to fully fund the City's portion for the boulevard section through the property, 13uffington Weir, LLC may develop its property by constructing at its own cost only one side of the Rupple Road boulevard section as a local street through its property and does not have to construct the multi -use trail or planted median to fulfill its street construction requirements for its final plat. (5) Upon the approval of the Duflington's initial development proposal.. Buffington will donate and dedicate park land easements and trail right of ways. Buffington shall be entitled to claim park land dedication credits for all such dollalecl or dedicated parks & trails right of way if conveyed in lee simple to the CON/. Pace 3 o1*4 (6) Upon the approval of Final'Plat by the City of Fayetteville, Buffington will donate or dedicate conservation and tree preservation easements. (7) The approximate 4.24 acre parcel proposed for rezoning to NS -G, Neighborhood Services, General shall not allow any residential development or use on the ground floor. residential use may be allowed on the second floor and above. IN AGREEMENT with all of the terms, conditions, duties, and promises above, we sign our names below as the legal and proper signatories for the City of Fayetteville and Buffington Weir, LLC. This Cost Share Agreement shall be effective on the date of its final execution by all parties. By:, ATTEST CITY OF FAYETTEVILLE, ARKANSAS LionelrlJOrcJdi1, Mayor Date, rA l.... Date: R Sondra E. Smith, City C1er1`.��'`'��jr ..i„1s •moi BUFFING'I}LEAIRlA; (:- Oei 14rr $A Date: Printed name By: ____ Signature Page 4 of 4 Title/Management position