HomeMy WebLinkAbout67-20 RESOLUTIONF AYET
OF TE
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9RkANSNS
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 67-20
File Number: 2020-0106
NORTHWEST ARKANSAS LAND TRUST CONSERVATION EASEMENT:
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SIGN A GRANT OF CONSERVATION
EASEMENT TO THE NORTHWEST ARKANSAS LAND TRUST FOR THE PRESERVATION OF 41
ACRES OF ENVIRONMENTALLY SENSITIVE LAND LOCATED NEAR THE WEST SIDE
WASTEWATER TREATMENT PLANT
WHEREAS, the City worked with the Northwest Arkansas Land Trust and Jacobs Engineering to locate
the new solar array at the West Side Wastewater Treatment Plant to avoid the most sensitive lands on the
property which includes approximately 41 acres of existing natural wet prairie and pristine oak savannah
habitats; and
WHEREAS, the Mayor and City staff recommend placing a permanent conservation easement on the
41 acres and using existing capital improvement project funds to help restore the existing native habitats
which will provide superior long-term environmental benefits to the area over the construction of
additional engineered wetlands for which the CIP funds were originally earmarked.
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 authorizes Mayor Jordan
to sign a Grant of Conservation Easement and Declaration of Covenants to the Northwest Arkansas Land
Trust and all other documents necessary for the preservation of 41 acres of environmentally sensitive land
located near the West Side Wastewater Treatment Plant.
Page 1 Printed on 2119120
File Number. 2020-0106
Resolution 67-20
PASSED and APPROVED on 2/18/2020
Attest:
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Kara Paxton, City Clerk TreasurBfJ•
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Page 2 Printed on 2119/20
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Text File
File Number: 2020-0106
Agenda Date: 2/18/2020 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: A. 5
NORTHWEST ARKANSAS LAND TRUST CONSERVATION EASEMENT:
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SIGN A GRANT OF CONSERVATION
EASEMENT TO THE NORTHWEST ARKANSAS LAND TRUST FOR THE PRESERVATION OF 41
ACRES OF ENVIRONMENTALLY SENSITIVE LAND LOCATED NEAR THE WEST SIDE
WASTEWATER TREATMENT PLANT
WHEREAS, the City worked with the Northwest Arkansas Land Trust and Jacobs Engineering to locate the
new solar array at the West Side Wastewater Treatment Plant to avoid the most sensitive lands on the property
which includes approximately 41 acres of existing natural wet prairie and pristine oak savannah habitats; and
WHEREAS, the Mayor and City staff recommend placing a permanent conservation easement on the 41
acres and using existing capital improvement project funds to help restore the existing native habitats which will
provide superior long-term environmental benefits to the area over the construction of additional engineered
wetlands for which the CIP funds were originally earmarked.
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 authorizes Mayor Jordan to sign a
Grant of Conservation Easement and Declaration of Covenants to the Northwest Arkansas Land Trust and all
other documents necessary for the preservation of 41 acres of environmentally sensitive land located near the
West Side Wastewater Treatment Plant.
City of Fayetteville, Arkansas Page 1 Printed on 211912020
Tim Nyander
Submitted By
City of Fayetteville Staff Review Form
2020-0106
Legistar File ID
2/18/2020
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
1/30/2020 WASTEWATER TREATMENT (730)
Submitted Date Division / Department
Action Recommendation:
Staff recommends approval of a conservation easement for approximately 41 acres of environmentally sensitive
wet prairie and oak savannah habitat owned by the City of Fayetteville at the West Side Wastewater Treatment
Plant.
Budget Impact:
N/A
Account Number
N/A
Project Number
N/A
Fund
N/A
Project Title
Budgeted Item? NA Current Budget
$ -
Funds Obligated
$ -
Current Balance
1 $ -�
Does item have a cost? NA Item Cost
$ -
Budget Adjustment Attached? NA Budget Adjustment
$ -
Remaining Budget
$
V20180321
Purchase Order Number: Previous Ordinance or Resolution # 235-13
Change Order Number:
Original Contract Number:
Comments:
Approval Date:
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF FEBRUARY 18, 2020
TO: Mayor and City Council
THRU: Susan Norton, Chief of Staff
FROM: Tim Nyander, Utilities Director
DATE: January 30, 2020
SUBJECT: West Side Prairie Conservation Area
CITY COUNCIL MEMO
RECOMMENDATION:
Staff recommends approval of a conservation easement for approximately 41 acres of
environmentally sensitive wet prairie and oak savannah habitat owned by the City of Fayetteville
at the West Side Wastewater Treatment Plant.
BACKGROUND:
The Woolsey Wet Prairie was constructed in 2005 — 2008 adjacent to the West Side
Wastewater Treatment Facility as a wetlands mitigation site for the West Side Wastewater
System Improvement Project. The wetlands were required to be constructed to comply with the
Army Corp of Engineers 404 permit to mitigate wetlands that were being degraded or destroyed
in the construction of sewer lines, pump stations and the West Side Wastewater Treatment
Plant. A deed restricted covenant was placed on the 43.8 acre constructed wetlands site as part
of the Army Corp wetland mitigation permitting process.
In November 2013, City Council passed Resolution 235-13, which expressed support for the
expansion of the Woolsey Wet Prairie to create 80 additional acres as a wetlands bank to be
used for City projects. Additionally, a $350,000 CIP was funded for the construction of the
wetlands. Since that time demand for wetland credits has decreased and none of the CIP
money has been expended on the wetlands expansion.
Since the construction of the original 43.8 -acre wetlands, the site has become quite popular with
naturalists especially those in the birding community. It has also been designated as an
Important Bird Area (IBA) by the Audubon Society due to the presence of over 182 species of
birds reported on the site and on the surrounding City owned property.
DISCUSSION:
During the negotiations and siting discussion for a 5 MW solar power generation facility and
associated battery storage at the West Side Wastewater Treatment Plant, it was discovered that
the preferred siting for the solar array, located to the northwest of the existing 43.8 acre
Woolsey Wet Prairie, potentially conflicted with other existing environmentally sensitive wet
prairie and oak savannah habitat owned by the City at the West Side Wastewater Treatment
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
Plant. Some of this area also potentially conflicted with the City Council supported 80 -acre
wetland expansion.
The City worked with the Northwest Arkansas Land Trust and Jacob Engineering, who manages
the Wastewater Treatment Plant, to relocate the proposed array to avoid the most sensitive
lands on the property that includes approximately 41 acres of existing natural wet prairie and
pristine oak savannah habitats.
In accordance with the 2013 Resolution, the Mayor requests that the City Council consider
placing a permanent preservation easement on these approximately 41 acres of existing natural
wet prairie and pristine oak savannah habitats. Additionally, the mayor requests that the existing
unused CIP monies originally intended for wetland expansion be instead used to help fund a
management plan the for preserved acreage that would help restore native habitat, remove
invasive plants and open up access to the public. The Mayor and staff feel that ecological
preservation and restoration of the existing habitats provide superior long-term environmental
benefit to the area over the construction of additional engineered wetlands.
BUDGET/STAFF IMPACT:
Existing CIP monies in the amount of $350,000 for the wetland expansion are available in the
Water/Sewer fund for the management of the conservation area.
Attachments:
Conservation Easement Agreement
Site Plan
Resolution 235-13
pon recording return to:
Northwest Arkansas Land Trust
1725 Smokehouse Trail
Fayetteville, Arkansas 72701
479-966-4666
GRANT OF CONSERVATION EASEMENT
.AND DECLARATION OR COVENANTS
THIS CONSERVATION EASEMENT AND DECLARATION OF COVENANTS
"Easement") dated this this 10— day of1. _e Uar%. 2020 (the "Easement Date") by and
between CITY OF FAYETTEVILLE, ARKANSAS, an Arkansas municipal corporation
("Owner"), which shall include any successor in interest to the Owner executing this Easement,
and the NORTHWEST ARKANSAS LAND TRUST, an Arkansas non-profit corporation
("Holder"), for the purpose of forever conserving the Conservation Values of the Property (both
hereinafter defined).
ARTICLE I
BACKGROUND
1.01 Defined Terms. Initially capitalized terms not defined in this ,Article I are defined in
Article VII.
1.02 Protected Property. Owner owns in fee simple certain real property, more particularly
described in Exhibit "A" attached hereto (the "Property"). The Property is also described
as:
Known As:
Municipality:
County:
State:
Acreage:
Portions of Tax Parcels:
1.03 Easement; Covenants:.
West Side Prairie
Fayetteville
Washington
Arkansas
41.10 acres, more or less
765-16201-012 and 765-16201-021
(a) Easement. By this Easement, Owner grants and conveys to Holder an
unconditional and perpetual easement upon the Property for the purpose of advancing the
Conservation Purposes described below. The Easement empowers Holder to prevent and terminate
activities, uses, and Improvements inconsistent with the Conservation Purposes. Article IV more
fully describes the rights this Easement vests in Holder. It is the purpose of the Owner and Holder
to avail themselves of the provisions of the Arkansas Conservation Easement Act, Ark. Code Ann.
§ 15-20-401 et seq., without intending that the existence of this Easement be dependent on the
continuing existence of that law.
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b� _ awfi `'CoveA4—)i s _ 13y this �asertient; :O�viier� in xu �tiierance oz . ei;onscrvai�Qri;
Purposes, establishes covenants binding upon Owner's interest in the Property, which are set forth
in Articles II through Article III. Article V addresses potential violation of these covenants and
remedies.
(c) Holder Covenants. By this Easement, Holder accepts the Easement and, in
furtherance of the Conservation Purposes, establishes covenants binding upon Holder's easement
interest in the Property, which are set forth in Article IV.
1.04 Easement Plan. Attached as Exhibit `B" is a graphic depiction of the Property (the
"Easement Plan").
1.05 Conservation Purposes. The resource -specific and area -specific purposes of the Easement
(collectively, the "Conservation Purposes") are as follows:
(a) Resource -Specific.
(i) Water Resources. To maintain and improve the quality of water resources,
both surface and groundwater, within, around, and downstream from the Property,
particularly to help protect the water quality of the Illinois River whose protection and
restoration is a multi -state priority.
(ii) Biological Resources. To protect and improve the quality of relatively
natural habitat for fish, wildlife, and plants, or similar ecosystems, including animals,
fungi, other organisms, and particularly Native Species. The Property includes historic
prairie habitat, which is a critically endangered ecosystem. The addition of this Property to
exiting greenspac namely the Wc� I Wet. PrairiE Sanctuary owhiM by the City f'
Fayetteville, further ensures habitat for wildlife, improving the long-term viability of
biodiversity in the region.
(iii) Soil Resources. To prevent the loss and depletion of soil on the Property.
Prairie mounds on site indicate a large portion of the Property is unplowed, giving a high
probability of a long dormant native seed bank.
(iv) Scenic Resources. To further the preservation of open space by protecting
the scenic views of the Property visible from public rights-of-way. Specifically, the general
public enjoys scenic views of the pasture from N. 54a' Avenue and W. Persimmon Street.
(v) Ecosystem Services. To contribute to the resiliency and functioning of
natural processes important to human systems; to retain, detain, and disperse stormwater
runoff, thus mitigating erosion and flooding downstream of the Property; to attract and
support a wide variety of bees, hummingbirds, and butterflies, which are essential to plant
and crop pollination; and, to sequester carbon in plants and soil to mitigate rising
atmospheric carbon levels.
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(vi) Open Space. To preserve open space pursuant to the City of Fayetteville's
Green Infrastructure Goals in the 2030 Master Plan, the regional Northwest Arkansas Open
Space Plan, and for the preservation of this historically important area, which will yield a
significant public benefit.
1.06 Baseline Documentation. The specific Conservation Purposes of the Property and its
current use and state of Improvement are set out in a Baseline Documentation Report (the
"Baseline Documentation Report" or "Report") prepared by Holder and to be kept at the
principal office of Holder. As of the Easement Date, Owner and Holder have signed and
acknowledged the Report to be complete and accurate as of the Easement Date. The Report
includes reports, maps, photographs, and other documentation, to be used by Holder to assure that
any future changes in the use of the Property will be consistent with the terms of this Easement.
Notwithstanding the foregoing, the Report shall not be used to preclude the use of other evidence
to establish additional Conservation Purposes of the Property now or in the future. The Report is
incorporated by reference herein as if restated in full.
1.07 Beneficiaries. No Beneficiary is identified in this Easement.
1.08 Consideration. Owner acknowledges receipt, as of the Easement Date, of good and
valuable consideration for this Easement, including, but in no way limited to, the public benefit
obtained, the covenants set forth in Article IV, and perpetual satisfaction of the Conservation
Purposes.
1.09 Superior to all Liens. Owner warrants to Holder that the Property is, as of the Easement
Date, free and clear of Liens and mortgages or, if it is not, that Owner has obtained and recorded
in the Public Records the legally binding subordination of the Liens affecting the Property as of
the Easement Date.
ARTICLE II
TRANSFER; SUBDIVISION
2.01 Prohibitions. Owner is prohibited from taking the following actions, except as may be
specifically set forth in Section 2.02. Owner may not:
(a) Transfer of Portion of Property. Transfer ownership, possession, control of land
by lease, or use of a portion of the Property, including subsurface portions of the Property,
independent of the remainder of the Property;
(b) Subdivision. Change the boundary of a Lot or create any Subdivision of the
Property;
(c) Transfer of Density. Use open space area protected under this Easement to
increase (above limits otherwise permitted under Applicable Law) allowable density or intensity
of development within other portions of the Property or outside the Property; or
(d) Transfer of Rights. Transfer development rights or other rights granted or
allocated to the Property in support of development outside the Property.
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2.02 Permitted Changes. Owner is permitted to make the following changes:
(a) Lots within Property. Merge two (2) or more Lots into one (1); or subject to
Review, reconfigure one (1) or more of the boundaries of such Lots, as long as the boundary of
the Property as described in Exhibit "A" remains unchanged;
(b) Transfer to Qualified Organization. Subject to Review, creation and transfer of
a Lot to a Qualified Organization for park, nature preserve, public trail, or other conservation
purposes approved by Holder; and
(c) Transfer of Rights of Possession or Use. Subject to Review, transfer of possession
or use (but not ownership) of one or more portions of the Property for purposes permitted under,
and subject to compliance with, the terms of this Easement. Leases of space within Improvements
are not subject to Review.
2.03 Requirements.
(a) Establishment of Lots; Allocations. Prior to transfer of a Lot following a
Subdivision, Owner must (i) furnish Holder with the plan of Subdivision approved under
Applicable Law and legal description of each Lot created or reconfigured by the Subdivision; (ii)
mark the boundaries of each Lot with permanent markers; and (iii) allocate in a document recorded
in the Public Records those limitations applicable to more than one Lot under this Easement. This
information will become part of the Baseline Documentation Report incorporated into this
Easement.
(b) Amendment. Holder may require Owner to execute an Amendment of this
Easement to reflect a change to the description of the Property set forth in Exhibit "A," or other
changes and allocations resulting from Subdivision that are not established to the reasonable
satisfaction of Holder by recordation in the Public Records of the plan of Subdivision approved
under Applicable Law.
ARTICLE III
IMPROVEMENTS; ACTIVITIES AND USES
3.01 Improvements. Improvements are prohibited except as permitted in this Section 3.01.
(a) Existing Improvements. Existing Improvements, including the barn, fencing,
ponds and rock walls may be maintained, repaired, and replaced in their existing locations.
(b) Existing Servitudes. Improvements that Owner is required to allow because of an
Existing Servitude are permitted.
(c) Additional Improvements. The following Additional Improvements are
permitted:
-4-
(i) Fences. New fences may be built on the Property for purposes of reasonable
and customary access control and protection of resources, provided that fencing does not
substantially diminish or impair the Conservation Purposes, including aesthetic and scenic
values of the Property, and does not exclude or restrict wildlife movement on or off of the
Property.
(ii) Trails. The following trails are permitted:
(1) One paved trail along the western and northern boundaries of the
Property, no more than twenty (20) feet in width.
(2) Trails constructed of (a) native, mowed grasses; (b) trails covered,
if at all, by wood chips, gravel or other highly porous natural, noninvasive material.
Trails shall be no more than four (4) feet in width. The location and density of trails
shall be planned in a manner consistent with preservation of the natural integrity of
the Property, with special consideration given to the preservation of ecologically
significant areas and species of special conservation concern.
(iii) Trail Signage. Trails may include signs to mark the trail, to provide
information regarding restrictions, and for interpretive purposes. Signage shall be
unobtrusive in nature and planned with the express goal of minimizing impact to the vistas
and Open Space nature of the Property.
(iv) Trail Facilities. Trails may include benches, picnic tables, wastebaskets
and bicycle racks, as may be deemed necessary. All other facilities are subject to Review
and approval. The design, location and density of trail facilities shall be architecturally
consistent with the natural setting of the Property and planned with the express goal of
minimizing impact to ecologically significant areas and species of special concern, and
ensuring the vistas and Open Space nature of the Property.
(v) Bridges. Subject to Review, footbridges, stream crossing structures, and
stream access structures.
(vi) Structures. Subject to Review, the Holder may construct, maintain, repair,
remove or replace any of the following, provided that the structure is of a reasonably
limited footprint, is architecturally consistent with the natural setting of the Property, does
not pose a threat to sensitive species or ecologically sensitive habitats, and is in accordance
with local, state, and federal laws:
(1) Pavilion. One (1) open-air pavilion or gazebo.
(2) Wildlife Viewing and Habitat Structures. A reasonable and
necessary number of raised walkways, wildlife viewing platforms, bird blinds, and
habitat enhancement devices such as bat boxes, bird houses.
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Any area of the Property disturbed in the .process o oristruction must �e restor to a
natural condition promptly after completion to ensure the activity does not substantially
diminish the Conservation Purposes.
(vii) Parking. Subject to Review, a Low Impact Development parking area to
accommodate four (4) vehicles.
(viii) Access. Subject to Review and approval, Access Drives and Utility
Improvements to service Improvements within the Property, but only if there is no other
reasonably feasible means to provide access and utility services to the Property.
(ix) Utility Improvements servicing activities, uses, or Improvements not within
the Property that Holder, without any obligation to do so, approves after Review.
3.02 Activities and Uses. Activities and uses are prohibited except as permitted below in this
Section 3.02: and provided in any case that: (i) the intensity or frequency of the activity or use does
not materially and adversely affect maintenance or attainment of Conservation Purposes, and (ii)
no Invasive Species are introduced.
(a) Existing Servitudes. Activities and uses that Owner is required to allow because
of an Existing Servitude are permitted.
(b) Resource Management and Disturbance. The following activities and uses are
permitted:
(i) Construction or other disturbance of resources, including cutting of trees,
only to the extent reasonably prudent to remove, mitigate, or warn against an unreasonable
risk of harm to Persons, their belongings, or health of Native Species on or about the
Property. Owner must take such steps as are reasonable under the circumstances to consult
with Holder prior to taking actions that, but for this provision, would not be permitted or
would be permitted only after Review. Removal of Invasive Species is permitted.
(ii) Planting, replanting, and maintaining Native Species.
(iii) Construction of permitted Improvements with prompt restoration of soil and
vegetation disturbed by such activity.
(iv) Owner may use, or permit the use of, service vehicles and motorized
equipment on the Property provided that:
(1) The use of such vehicles is reasonable and necessary for
maintenance and/or emergency access to the Property, or for providing access to
people with disabilities.
(2) The permission afforded by Owner is limited to a short-term
license and is not a right-of-way, easement, or other permanent legal interest.
6"
(3) Vehicles take care to avoid ecologically significant areas and
species of special conservation concern on the Property.
(v) Application of manure and plant material, both well composted, and,
subject to compliance with manufacturer's recommendations, other substances to promote
the health and growth of vegetation. These permitted substances do not include sewage or
industrial sludge, biosolids, septic system effluent, and related substances.
(vi) Piling of brush and other vegetation to the extent reasonably necessary to
accommodate activities or permitted uses.
(vii) Subject to Review, and pursuant to a city permit, the Owner may permit or
host special events of short duration by specific groups within the Property, including bio -
blitzes, so long as such events do not substantially diminish or impair the Conservation
Purposes of the Property. Special Events may include the temporary use of service vehicles,
cooking grills, temporary tents, shade structures, and toilet and refreshment areas.
(viii) Owner reserves the right to conduct habitat management activities, subject
to federal, state and local regulations, and the specific terms and conditions of the
Easement. All habitat management activities shall be conducted in accordance with a
written plan (a "Habitat Management Plan") subject to Review and approval by Holder.
The Habitat Management Plan should, if possible, be reviewed and updated at least every
ten (10) years. The Habitat Management Plan shall include, at a minimum, the following:
(1) Goals and objectives of the Owner, consistent with the purposes
and terms of the Easement.
(2) Identification and mapped location of significant habitat types,
species of special conservation concern, and natural and physical features of the
Property.
(3) A description of the current and desired natural condition and
threats to each habitat type.
(4) A description of contemplated management plans and proposed
access plan for each habitat type.
(5) A description of foreseeable situations in which chemical
application will be recommended, including the type, amount, method of
application, and recommended limitations to protect water quality and sensitive
species.
(x) Owner reserves the right to allow public access and use of the Property
subject to the restrictions outlined by this Easement for the purpose of permitted outdoor
recreational activities and,educational outreach to enhance the quality of life.
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(xi) Other activities atiat :Holder, witBout any oitari to do so, determines are - " -
consistent with maintenance or attainment of Conservation Purposes and are conducted in
accordance with a management plan or other plan approved for that activity after Review.
(c) Other Activities. Activities are permitted that do not require Improvements and
do not materially or adversely affect maintenance or attainment of Conservation Purposes such
as the following: (i) walking, bird watching, and nature study; and (ii) educational or scientific
activities consistent with and in furtherance of the Conservation Purposes.
ARTICLE IV
RIGHTS AND DUTIES OF HOLDER AND BENEFICIARIES
4.01 Holder Covenants. In support of the Conservation Purposes, Holder declares the
following covenants binding upon its easement interest in the Property:
(a) Exercise of Powers. Holder must exercise the powers granted to it by this
Easement to prevent and terminate activities and uses of, and Improvements within, the Property
that are inconsistent with the Conservation Purposes.
(b) Must be Qualified Organization. Holder must be and remain at all times a
Qualified Organization and must not transfer the Easement or otherwise assign its rights or
responsibilities under this Easement to a Person other than a Qualified Organization committed to
upholding the Conservation Purposes.
(c) Proceeds Used for Conservation Purposes. Holder must use any funds received
on account of the release, termination or extinguishment of the Easement in whole or in part in
furtherance of its charitable conservation purposes.
4.02 Rights and Duties of Holder. The items set forth below are both rights and duties vested
in Holder by this Easement:
(a) Protect in Perpetuity. To protect the Conservation Purposes of the Property in
perpetuity.:
(b) Enforcement. To enter the Property to investigate a suspected, alleged or
threatened violation of the covenants and, if found, to enforce the terms of this Easement by
exercising Holder's remedies in this Easement.
(c) Inspection. To enter and inspect the Property for compliance with the requirements
of this Easement in a reasonable manner and at reasonable times.
(d) Review. To exercise rights of Review in accordance with the requirements of this
section.
(e) Interpretation. To interpret the terms of this Easement and, at the request of
Owner, furnish Holder's explanation of the application of such terms to then -existing, proposed,
or reasonably foreseeable conditions within the Property.
4.03 Amendment and Holder's Discretionary Approval Background. Owner and Holder
have determined, in good faith, the limitations of any permissible modifications hereto. Owner and
Holder recognize that natural conditions, landscapes, uses and technologies change over time.
Holder and Owner recognize that unforeseen or changed future circumstances may arise which
makes it beneficial or necessary to take certain action in order to ensure the continued protection
of the Conservation Purposes of the Property and to guaranty the perpetual nature of this Easement.
Additional proposed activities may require the exercise of discretion by Holder, as further
described below. This Section, therefore, ensures that the Holder protects the Conservation
Purposes of the Property in perpetuity.
(a) Purpose. To this end, if approved by the Holder in its sole discretion, Owner and
Holder have the right to modify this Easement. Holder may exercise its discretion in accordance
with the provisions and limitations of this Section. Holder has no obligation to agree to any
modification of this Easement. No modification shall adversely affect the perpetual duration of
this Easement or the perpetual protection of its Purposes.
(b) Amendment Requirements. Holder shall not consent to any amendment of this
Easement unless Owner submits a written request for amendment pursuant to Holder's existing
amendment policy and such proposed amendment qualifies under Holder's policy then in effect
respecting conservation easement amendments. The effect of such amendment shall enhance, or
at least be neutral with respect to, the Conservation Purposes of this Easement. Owner and Holder
may amend this Easement to be more restrictive to comply with the provisions of Code Section
2031(c). Holder may require subordination of any mortgage as a condition of permitting any
substantive amendment to this Easement.
(c) General. Holder and Owner shall have no'power or right to agree to any activity,
use or structure that would (i) result in the extinguishment in full of this Easement; (ii) adversely
affect the perpetual nature of this Easement; (iii) adversely affect the qualification of this Easement
or the status of Holder under any applicable laws, including Code Sections 170(h), 501(c)(3), and
the laws of the State of Arkansas; or (iv) result in either impermissible private benefit or inurement
to any party. For purposes of this Section, the terms impermissible private benefit and inurement
shall have the same meanings ascribed to them in Code Section 501(c)(3) and associated Treasury
Regulations. Any modification that results in a partial extinguishment with the exception of
corrections and clarifications of boundary disputes, legal descriptions and internal use
demarcations, and any other de minimis modification.
(d) Discretionary Acts. Subject to the conditions and circumstances set forth below,
Holder may consent to activities, structures or uses, issue waivers or licenses or otherwise exercise
discretion where the Easement is silent or ambiguous. Because of unforeseen or changed
circumstances, if an activity, structure or use that is not expressly permitted under this Easement
is deemed beneficial or necessary by Owner, Owner may request, and Holder may, in its sole
discretion, grant permission for such activity, structure or use without resorting to the formalities
of Holder's amendment policy and process, subject to the following limitations. (i) such request
for Holder's consent shall be made in writing and shall describe the proposed activity or use in
sufficient detail to allow Holder to evaluate the consistency of the proposed activity with the
preservation and protection of the Conservation Purposes; (ii) Holder may grant its consent only
if it determines, in its sole discretion, that (A) the performance of such activity is, in fact, beneficial
or necessary; and (B) such activity (x) shall not result in private inurement or confer impermissible
private benefit, (y) results in neutral or enhanced Conservation Purposes of this Easement, and (z)
does not violate the terms of this Easement. Owner shall not engage in the proposed activity or use
unless and until Owner receive Holder's approval in writing.
(e) Costs. If Owner is the party requesting an amendment of, or discretionary approval
pursuant to, this Easement, Owner shall be responsible for all reasonable and customary fees and
costs related to Holder's evaluation of said request and an amendment's execution, including
reasonable attorney's fees and costs, staff, contractor, legal, expert, consultant fees and costs, and
any costs associated with any updated Baseline Documentation Report prepared pursuant to the
provisions of this Section.
(f) Updated Baseline Documentation. In the event Owner and Holder agree to an
amendment or discretionary approval pursuant to this Section that results in alterations to the
Property, then the Baseline Documentation Report shall be supplemented appropriately to reflect
the modification scope, scale and intensity. The supplement shall be acknowledged by Owner and
Holder to memorialize the condition of the Property as of the date of the amendment or
discretionary approval.
(g) Recording. Owner and the Holder shall execute any amendment approved after
following the procedures in this section, and the revised document shall be recorded in the Public
Records.
(h) Form. Any modification that Holder determines, in its sole discretion, to be
beneficial or necessary shall be in the form of either (i) an amendment, in the case of a permanent
modification of this Easement, including but not by way of limitation, a clerical or technical
correction or modification of a reserved right; or (ii) a discretionary approval, waiver or consent
in the case of a temporary activity or impact relating to the maintenance or management of the
Property which does not require a permanent modification of the Easement. All amendments and
discretionary actions shall be subject to this section. Nothing in this section, however, shall require
Owner or Holder to agree to any amendment or discretionary approval, consent, or waiver.
4.04 Other Rights of Holder. The items set forth below are also rights vested in Holder by this
Easement. However, Holder, in its discretion, may or may not exercise them:
(a) Signs. To install one or more signs within the Property identifying the interest of
Holder or Beneficiaries in the Easement. However, such signs will not reduce the number or size
of signs permitted to Owner under this Easement. Signs are to be of the customary size installed
by Holder or Beneficiary, as the case may be, and must be installed in locations readable from the
public right-of-way and otherwise reasonably acceptable to Owner.
-10-
(b) Proceedings. To assert a claim, defend or intervene in, or appeal, any proceeding
under Applicable Law that (1) pertains to the impairment of Conservation Purposes; or (2) may
result in a transfer, Improvement or use that violates the terms of this Easement.
4.05 Review. The following provisions are incorporated into any provision of this Easement
that is subject to Review:
(a) Notice to Holder. At least 30 days before Owner intends to begin or allow an
Improvement, activity, or use that is subject to Review, Owner must notify Holder of the proposed
change including with the notice such information as is reasonably sufficient to comply with
Review Requirements and otherwise describe the proposal and its potential impact on the
Conservation Purposes.
(b) Notice to Owner. Within 30 days after receipt of Owner's notice, Holder must
notify Owner of Holder's determination to (i) accept Owner's proposal in whole or in part; (ii)
reject Owner's proposal in whole or in part; (iii) accept Owner's proposal conditioned upon
compliance with conditions imposed by Holder; or (iv) reject Owner's proposal for insufficient
information upon which to base a determination. If Holder gives conditional acceptance under
clause (iii), commencement of the proposed Improvement, activity, or use constitutes acceptance
by Owner of all conditions set forth in Holder's notice.
(c) Failure to Notify. If Holder fails to notify Owner as required in the preceding
subsection, the proposal set forth in Owner's notice is deemed disapproved.
(d) Reasonableness Standard. Upon review, the phrase `unless Holder, without any
obligation to do so," in relation to an approval or determination by Holder, means that, in that
particular case, Holder's approval is wholly discretionary. Holder's approval is not to be
unreasonably withheld. Itis reasonable for Holder to disapprove a proposal that may adversely
affect natural resources described in the Conservation Purposes or that is otherwise inconsistent
with maintenance or attainment of Conservation Purposes. Owner and Holder shall act in good
faith; shall follow a reasonableness standard; shall use their best efforts to act in a timely manner
in any determinations that are necessary or are contemplated to be made (either separately or
jointly) under this Easement; shall cooperate with one another; and shall take all other reasonable
action suitable to these ends.
4.06 Costs and Expenses. Owner must pay or reimburse Holder's costs and expenses (including
Losses, Litigation Expenses, allocated personnel costs, and reasonably incurred liabilities) in
connection with: (a) enforcement (including exercise of remedies) under the terms of this
Easement; and (b) response to requests by Owner for Amendment of this Easement. Owner may,
before commencement of Holder's services, request an estimate of the costs and expenses Holder
anticipates to incur in responding to Owner's request for any Amendment of this Easement. Owner
is not responsible to reimburse costs and expenses arising from Holder's response to an inquiry or
request by a Person other than Owner without Owner's approval.
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...... ..... _---- .... _ .... _.._ ... _ .._..
:ATILE V
VIOLATION; REMEDIES
5.01 Violation. If Holder determines that the terms of this Easement are violated or that a
violation is threatened or imminent, then the provisions of this section apply:
(a) Notice. Holder must notify Owner of the violation. Holder's notice may include its
recommendation of measures Owner must take to cure the violation and restore features of the
Property damaged or altered as a result of the violation.
(b) Opportunity to Cure. Owner's cure period expires thirty (30) days after the date
of Holder's notice to Owner subject to extension for the time reasonably necessary to cure but only
if all of the following conditions are satisfied:
(i) Owner ceases the activity constituting the violation promptly upon receipt
of Holder's notice;
(ii) Owner and Holder agree, within the initial 30 -day period, upon the
measures Owner will take to cure the violation;
(iii) Owner commences.to cure within the.initia130-day period; and
(iv) Owner continues thereafter to use best efforts and due diligence to complete
the agreed upon cure.
(c) Imminent harm. No notice or cure period is required if circumstances require
prompt action to prevent or mitigate irreparable harm or alteration to a natural resource or other
feature of the Property described in the Conservation Purposes.
5.02 Remedies. Upon expiration of the cure period (if any) described in the preceding section,
Holder may do one or more of the following:
(a) Injunctive Relief. Seek injunctive relief to specifically enforce the terms of this
Easement, to restrain present or future violations of the terms of this Easement, and/or to compel
restoration of resources destroyed or altered as a result of the violation.
(b) Civil Action. Recover from Owner or other Persons responsible for the violation
all sums owing to Holder under applicable provisions of this Easement together with interest
thereon from the date due at the Default Rate. These monetary obligations include, among others,
Losses and Litigation Expenses.
(c) Statutory. Bring a private right of action pursuant to the Arkansas Conservation
Easement enforcement provision found at Ark. Code Ann. § 15-20-409, including all remedies
available pursuant to that law.
-12-
5.03 Modification or Termination. If the Easement is or is about to be modified or terminated
by exercise of the power of eminent domain (condemnation) or adjudication of a court of
competent jurisdiction sought by a Person other than Holder, the following provisions apply:
(a) Compensatory Damages. Holder is entitled to collect from the Person seeking the
modification or termination, compensatory damages in an amount equal to the increase in Market
Value of the Property resulting from the modification or termination plus reimbursement of
Litigation Expenses as if a violation had occurred. In the event of an extinguishment of the
Easement, Holder is entitled to the greater of the compensation provided under this section or the
compensation provided under any other provision of this Easement.
(b) Restitution. Holder is entitled to recover from the Person seeking the modification
or termination: (i) restitution of amounts paid for this Easement (if any) and any other sums
invested in the Property for the benefit of the public as a result of rights vested by this Easement,
plus (ii) reimbursement of Litigation Expenses.
5.04 Remedies Cumulative. The description of Holder's remedies in this .Article V does not
preclude Holder from exercising any other right or remedy that may at any time be available to
Holder under this article or Applicable Law. If Holder chooses to exercise one remedy, Holder
may nevertheless choose to exercise one or more of the other rights or remedies available to Holder
at the same time or at any other time.
5.05 Waivers. Holder in its discretion may provide a Waiver if Holder determines that the
Waiver will have no material effect on the Conservation Purposes. If Holder does not exercise a.
right or remedy when it is available to Holder, that is not to be interpreted as a Waiver of any non-
compliance with the terms of this Easement or a Waiver of Holder's rights to exercise its rights or
remedies at another time.
5.06 No Fault of Owner. Holder will waive its right to reimbursement under this Article V as
to Owner (but not other Persons who may be responsible for the violation) if Holder is reasonably
satisfied that the violation was not the fault of Owner, and could not have been anticipated or
prevented by Owner by reasonable means.
5.07 Multiple Owners.
(a) Multiple Lots. If different Owners own Lots within the Property, only Owners of
the Lot in violation will be held responsible for the violation.
(b) Single Lot. If more than one Owner owns the Lot in violation of the terms of this
Easement, the Owners of the Lot in violation may be held jointly and severally liable for the
violation regardless of the form of ownership.
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MISCELLANEOUS
6.01 Notices:
(a) Requirements. Each Person giving any notice pursuant to this Easement (each a
"Notice") must give the Notice in writing and must use one of the following methods of delivery:
(i) personal delivery; (ii) certified mail, return receipt requested and postage prepaid; or (iii)
nationally recognized overnight courier, with all fees prepaid. Each time the term "Notify" is used
herein, it shall be deemed to refer to sending a Notice in accordance with this article.
(b) Address for Notices. Each Person giving a Notice must address the Notice to the
appropriate Person at the receiving party at the address listed below or to another address
designated by that Person by Notice to the other Person:
If to Owner: City of Fayetteville
113 W. Mountain Street
Fayetteville, AR 72701
If to Holder: Northwest Arkansas Land Trust
1725 S. Smokehouse Trail
Fayetteville, Arkansas 72701
6.02 Duty to update. Owners and Holder shall provide Notice to the other within thirty (30)
days of a change in address specifying a new address for Notices.
6.03 Governing Law. The laws of the State of Arkansas govern this Easement.
6.04 Assignment and Transfer. Neither Owner nor Holder may assign or otherwise transfer
any of their respective rights or duties under this Easement voluntarily or involuntarily, whether
by merger, consolidation, dissolution, operation of law or any other manner except as permitted
below. Any purported assignment or transfer in violation of this section is void.
(a) Notice Required. Not less than thirty (30) days prior to transfer of the Property or
a Lot, Owner must notify Holder of the name(s) and address for notices of the Person who will
become Owner following the transfer. At the time Holder is Notified of the transfer, Owner shall
pay a $10 transfer fee to Holder.
(b) Prior to Transfer. Owner authorizes Holder to (i) contact the Persons to whom the
Property or Lot will be transferred, and other Persons representing Owner or the prospective
transferees to discuss with them this Easement and, if applicable, other pertinent documents; and
(ii) enter the Property to assess compliance with this Easement.
iC!
(c) Ending Continuing Liability. If Holder is not notified per this section's
requirement, it is not the obligation of Holder to determine whether a violation first occurred before
or after the date of the transfer. The pre -transfer Owner continues to be liable on a joint and several
basis with the post -transfer Owner for the correction of violations under this Easement until such
time as Holder is given the opportunity to inspect and all violations noted in Holder's resulting
inspection report are cured.
(d) Subsequent Deeds and Transfers. This easement must be incorporated by
reference in any deed or other legal instrument by which Owner conveys any interest in the
Property, including without limitation, a leasehold or mortgage interest. The failure of Owner to
perform any act required by this paragraph shall not impair the validity of this Easement or limit
its enforceability in any way.
6.05 Burdens; Benefits. This Easement binds and benefits Owner and Holder and their
respective personal representatives, successors, and assigns.
(a) Binding on All Owners. This Easement vests a servitude running with the land
binding upon Owner and, upon recordation in the Public Records, all subsequent Owners of the
Property or any portion of the Property are bound by its terms whether or not Owners had actual
notice of this Easement and whether or not the deed of transfer specifically referred to the transfer
being under and subject to this Easement.
(b) Rights Exclusive to Holder. Except for rights of Beneficiaries (if any) under this
Easement, only Holder has the right to enforce the terms of this Easement and exercise other rights
of Holder. Owners of Lots within the Property do not have the right to enforce the terms of this
Easement against Owners of other Lots within the Property. Only Owners of the Lot that is the
subject of a request for Review, Waiver, Amendment, interpretation, or other decision by Holder
have a right to notice of, or other participation in, such decision.
6.06 Documentation Requirements:,
(a) Between Holder and Owner. No Amendment, Waiver, approval after Review,
interpretation, or other decision by Holder is valid or effective unless it is in writing and signed by
an authorized signatory for Holder. This requirement may not be changed by oral agreement. The
grant of an Amendment or Waiver in any instance or with respect to any Lot does not imply that
an Amendment or Waiver will be granted in any other instance.
(b) Between Holder and Assignee. Any assignment of Holder's rights under this
Easement, if otherwise permitted under this Easement, must be in a document signed by both the
assigning Holder and the assignee Holder. The assignment document must include a covenant by
which the assignee Holder assumes the covenants and other obligations of Holder under this
Easement. The assigning Holder must deliver the Baseline Documentation Report and such other
documentation in Holder's possession reasonably needed to uphold the Conservation Purposes.
6.07 Severability. If any provision of this Easement is determined to be invalid, illegal or
unenforceable, the remaining provisions of this Easement remain valid, binding and enforceable.
-15-
To the extent ermined ti. A ficable haw, the art es waive any ` rovision & ircalire I:aw w.............
P y lel? p Y p 1?p
that renders any provision of this Easement invalid, illegal or unenforceable in any respect.
6.08 Counterparts. This Easement may be signed in multiple counterparts, each of which
constitutes an original, and all of which, collectively, constitute only one document.
6.09 Guides to Interpretation,.
(a) Captions. Except for the identification of defined terms in the Glossary, the
descriptive headings of this Easement are for convenience only and do not constitute a part of this
Easement.
(b) Glossary. If any term defined in the Glossary is not used in this Easement, the
defined term is to be disregarded as surplus material.
(c) Other Terms:
(i) The word "including" means "including but not limited to":.
(ii) The words "must" and "shall" are obligatory; the word "may" is permissive
and does not imply any obligation.
(d) Conservation Easement Act. This Easement is intended to be interpreted so as to
convey to Holder all of the rights and privileges of a Holder of a conservation easement under the
Arkansas Conservation Easement Act, Ark. Code. Ann. § 15-20-401 et seq., and any amendments,
replacements, or successors to that law.
(e) Restatement (Third) of the Law of Property: Servitudes. This Easement is
intended to be interpreted so as to convey to Holder all of the rights and privileges of a Holder of
a conservation servitude under the Restatement (Third) of the Law of Property, to the extent that
Arkansas law or other Applicable Law does not provide sufficient guidance. .
6.10 Entire Agreement. This is the entire agreement of Owner, Holder, and Beneficiaries (if
any) pertaining to this Easement. The terms of this Easement supersede in full all negotiations,
agreements, statements and writings between Owner, Holder and others pertaining to this
transaction.
6.11 Incorporation by Reference. Each exhibit attached to this Easement is incorporated
herein by this reference. The Baseline Documentation Report (whether or not attached to this
Easement) is incorporated herein by this reference.
6.12 Jurisdiction; Venue. Holder and Owner submit to the exclusive jurisdiction of the courts
of the State of Arkansas located in Washington County and agree that any legal action or
proceeding relating to this Easement may be brought only in the courts located in such county.
-16-
ARTICLE VII.
GLOSSARY
As used herein, the following terms will have the meanings set out in this article.
7.01 Access Drive(s). Roads, drives or lanes providing vehicular access to or located within the
Property.
7.02 Additional Improvements. All buildings, structures, facilities and other Improvements
within the Property, whether temporary or permanent, other than Existing Improvements.
7.03 Agricultural Improvement. An Improvement used or usable in furtherance of
Agricultural uses such as a barn, stable, silo, spring house, green house, hoop house, riding arena
(whether indoor or outdoor), horse walker, manure storage pit, storage building, farm stand,
feeding and irrigation facilities.
7.04 Agricultural or Agriculture. Any one or more of the following and the leasing of land for
any of these purposes: (i) Commercial use of the land for the production of forage, grain, and field
crops; vegetables, fruits, seeds, nuts, and other plant products; mushrooms; animals and their
products; (ii) Production of nursery stock and sod to be removed and planted elsewhere; (iii) The
storage of plant and animal products produced on the Property; (iv) The piling or composting of
the residues of plant or animal production occurring on the Property for sale or subsequent use in
plant or animal production; (v) Boarding, stabling, raising, feeding, grazing, exercising, riding,
and training horses and instructing riders.
7.05 Amendment. An amendment, modification or supplement to this Easement signed by
Owner and Holder and recorded in the Public Records. The term "Amendment" includes an
amendment and restatement of this Easement.
7.06 Applicable Law. Any federal, state or local laws, statutes, codes, ordinances, standards
and regulations applicable to the Property, this Easement as amended through the applicable date
of reference. If this Easement is intended to meet the requirements of a qualified conservation
contribution, then applicable provisions of the Code and the Regulations are also included in the
defined term.
7.07 Beneficiary. A Person given rights under the terms of the Easement (other than Owner or
Holder).
7.08 Best Management Practices. A series of guidelines or minimum standards (sometimes
referred to as BMP's) recommended by federal, state, and/or county resource management
agencies for farming and forestry operations; for preventing and reducing pollution of water
resources and other disturbances of soil, water, and vegetative resources; and for protecting
wildlife habitats.
7.09 Code. The Internal Revenue Code of 1986, as amended through the applicable date of
reference.
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7.10 Conservation Easement Act. The Arkansas Conservation Easements Act (Ark. Code
Ann. § 15-20-401 et seq.) as amended through the applicable date of reference.
7.11 Construction. Any demolition, construction, re -construction, expansion, exterior
alteration, installation or erection of temporary or permanent Improvements. This term does not
include dredging, mining, filling or removal of gravel, soil, rock, sand, coal, petroleum or other
minerals.
7.12 Default Rate. An annual rate of interest equal at all times to two percent (2.0%) above the
"prime rate" announced from time to time in The Wall Street Journal; provided, however, that the
Default Rate shall never exceed the maximum rate allowed under Applicable Law.
7.13 Dwelling Unit. The use or intended use of an Improvement or portion of an Improvement
for human habitation by one or more Persons (whether or not related). Existence of a separate
kitchen accompanied by sleeping quarters is considered to constitute a separate Dwelling Unit.
7.14 Environmental Laws. Any and all federal, state, local, or administrative agency statutes,
regulations, rules, codes, ordinances or requirements of any governmental authority regulating or
imposing standards of liability or standards of conduct (including common law) regarding air,
water, solid waste, hazardous materials, petroleum products, worker and community right -to -
know, hazard communication, radioactive material, resource protection, wetlands and
watercourses, health protection and similar environmental health, safety, building and land use
laws and regulations as may now or at any time hereafter be in effect.
7.15 Existing Servitude. Easements and other servitudes affecting title to the Property (other
than a Lien) accorded priority to the Easement by notice in the Public Records.
7.16 Existing Improvements. All buildings, structures, facilities and other improvements,
whether temporary or permanent, located on, above or under the Property as of the Easement Date
as identified in the Baseline Documentation Report.
7.17 Forestry. Planting, growing, nurturing, managing and harvesting trees whether for timber
and other useful products or for water quality, wildlife habitat and other Conservation Purposes.
7.18 Habitat Management Plan. A record of the decisions and intentions of Owner prepared
by a qualified resource management professional for the purpose of protecting natural resources
that the Conservation Purposes aim to protect during certain operations potentially affecting those
resources. It includes a resource assessment, identifies appropriate performance standards (based
upon Best Management Practices where available and appropriate), and projects a multi-year
description of planned activities for operations to be conducted in accordance with the plan.
7.19 Height. The vertical elevation of an Improvement measured from the average exterior
ground elevation of the Improvement to a point, if the Improvement is roofed, midway between
the highest and lowest points of the roof, excluding chimneys, cupolas, ventilation shafts,
9".
weathervanes and similar protrusions, or, if the Improvement is unroofed, the top of the
Improvement.
7.20 Impervious Coverage. The footprints (including roofs, decks, stairs, and other extensions)
of Improvements; paved or artificially covered surfaces such as crushed stone, gravel, concrete,
and asphalt; impounded water (such as a man-made pond); and compacted earth (such as an
unpaved roadbed). Also included in Impervious Coverage are green roofs and porous pavement
surfaces. Excluded from Impervious Coverage are running or non -impounded standing water (such
as a naturally occurring lake), bedrock and naturally occurring stone and gravel, and earth (whether
covered with vegetation or not) so long as it has not been compacted by non -naturally occurring
forces.
7.21 Improvement. Any Existing Improvements or Additional Improvements
7.22 Invasive Species. A plant species that is (a) Non -Native Species to the ecosystem under
consideration; and (b) whose introduction causes or is likely to cause economic or environmental
harm or harm to human health. In cases of uncertainty, published atlases are to be used to identify
Invasive Species.
7.23 Lien. Any mortgage, lien or other encumbrance securing the payment of money,
7.24 Litigation Expense. Any filing fee or cost associated with any court or administrative
review body, arbitration fee or cost, witness fee and every other fee and cost of investigating,
defending, appealing, or asserting any claim of violation or for indemnification under this
Easement including in each case, attorneys' fees, other professionals' fees, and disbursements.
7.25 Losses. Any liability, loss, claim, settlement payment, cost, expense, interest, award,
judgment, damages (including punitive damages), diminution in value, fines, fees and penalties or
other charge other than a Litigation Expense.
7.26 Lot. A unit, lot, or parcel of real property separated or transferable for separate ownership
or lease under Applicable Law.
7.27 Low Impact Development. Practices that use or mimic natural processes that result in the
infiltration, evapotranspiration or use of stonnwater in order to protect water quality and associated
aquatic habitat.
7.28 Management Contract. An agreement Owner or Holder may enter into with any
designated third party to manage the Property in such a way so as to fulfill the intents and purposes
of this Easement.
7.29 Market Value. The fair value that a willing buyer, under no compulsion to buy, would pay
to a willing seller, under no compulsion to sell as established by appraisal in accordance with the
then -current edition of Uniform Standards of Professional Appraisal Practice issued by the
Appraisal Foundation or, if applicable, a qualified appraisal in conformity with 26 C.F.R. § 1.170A-
13.
-19-
7.30 Native Species. A plant or animal indigenous to the locality under consideration. In cases
of uncertainty, published atlases are to be used to establish whether or not a species is native.
7.31 Non -Native Species. A plant or animal that is not indigenous (alien) to the locality under
consideration. In cases of uncertainty, published atlases are to be used to establish whether or not
a species is non-native.
7.32 Open Space. Open Space is any open piece of land that is undeveloped and helps enhance
the beauty and environmental quality of a community for the benefit of the general public.
7.33 Owner/Ownership. Owner and all Persons after them who hold an interest in the
Property.
7.34 Person. An individual, organization, trust, government or other entity:
7.35 Public Records. The public records of the office for the recording of deeds in and for the
county in which the Property is located.
7.36 Qualified Organization. A governmental or non-profit entity that (a) is established as a
public charity for the purpose of preserving and. conserving natural resources, natural habitats,
environmentally sensitive areas and other charitable, scientific and educational purposes; (b) meets
the criteria of a qualified organization under the Regulations; and (c) is duly authorized to acquire
and hold conservation easements under Applicable Law.
7.37 Regulations. The provisions of 26 C.F.R. §1.170A-14, and any other regulations
promulgated under the Code that pertain to qualified conservation coria. ibutions, as amended
through the applicable date of reference.
7.38 Regulatory Signs. Signs (not exceeding one square foot each) to control access to the
Property or for informational, directional, or interpretive purposes.
7.39 Residential Improvement. Dwelling and Improvements accessory to residential uses
such as garage, swimming pool, pool house, tennis court, and children's play facilities.
7.40 Review. Review and approval of Holder under the procedure described in Article IV.
7.41 Review Requirements. Collectively, any plans, specifications or information required for
approval of the activity, use or Construction under Applicable Law (if any) plus (a) the information
required under the Review Requirements incorporated into this Easement either as an exhibit or as
part of the Baseline Documentation Report or (b) if the information described in clause (a) is
inapplicable, unavailable or insufficient under the circumstances, the guidelines for Review of
submissions established by Holder as of the applicable date of reference.
7.42 Riparian Buffer. Land adjacent to a stream, river or other water body.:.
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7.43 Site Improvement. An unenclosed Improvement such as an Access Drive, Utility
Improvement, walkway, boardwalk, retention/detention basin or other storm water management
facility, well, septic system, bridge, parking area or other pavement, lighting fixture, sign, fence,
wall, gate, man-made pond, berm, and landscaping treatment.
7.44 Steep Slope Area. Areas greater than one (1) acre having a slope greater than fifteen
percent (15%).
7.45 Subdivision. Any division of the Property or any Lot within the Property; and any creation
of a unit, Lot or parcel of real property, including subsurface portions of the Property, for separate
use or Ownership by any means including by lease or by implementing the condominium form of
Ownership.
7.46 Sustainable. Land management practices that provide goods and services from an
ecosystem without degradation of biodiversity and resource values at the site and without a decline
in the yield of goods and services over time.
7.47 Top of Bank. The point closest to the boundary of an active floodplain or stream channel.
7.48 Utility Improvement. Improvement for the reception, storage, or transmission of potable
water, storm water, sewage, electricity, gas and telecommunications or other sources of power.
7.49 Waiver. A written commitment by which Holder, without any obligation to do so, agrees
to refrain from exercising one or more of its rights and remedies for a specific period of time with
respect to a specific set of circumstances if Holder is satisfied that the accommodation will have
no material effect on Conservation Purposes.
7.50 Wet Area. Watercourse, spring, wetland and non -impounded standing water and areas
within one hundred (100) feet of their edge.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
-21-
.
�_
INTENDING TO BE LEGALLY .BOUND, each o��wner an�Tc I�oldex
authorized representative, have signed and delivered this Easement as of the Easement Date.
STATE OF ARKANSAS )
) ss
COUNTY OF )
On this agday 2020, before me, a Notary
Public, duly commissioned, qualified d acting, within and for said County and State, appeared
in person the within named LIONELD JORDAN (being the person or persons authorized by said
entity, to execute such instrument, stating their respective capacities in that behalf), to me
personally well known (or -satisfactorily -.proven to be such person), who stated that theymere the
Mayor of the CITY OF FAYETTEVILLE, ARKANSAS, a duly constituted municipality under
the laws of the State of Arkansas, and were duly authorized in such capacity to execute the
foregoing instrument for and in the name and behalf of said entity, and further stated and
acknowledged that they had so signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN WITNESS WHEREOF I have hereunto set my hand and seal, this the&k- day of
:. 2020, II^^
My Commission Expires: OZ"
yPublic
a_ap'(ARy o:
® •
INTENDING TO BE LEGALLY BOUND, each of Owner and Holder, by its duly
authorized representative, have signed and delivered this Easement as of the Easement Date.
WITNESS: HOLDER:,
NORTHWEST ARKANSAS LAND TRUST,
an Arkansas non-profit corporation
r
By:
Jas ns, ,,. ecretary/TreasurerE1e e nl7s1-re Sided.
ACKNOWLEDGEMENT
STATE OF ARKANSAS )
_ ) ss
COUNTY OF )
On this day of.._'2020 before me, � 4c?`Tl ti`l ,..a Notary
Public within and for the Countyan�;�:State aforesaid, duly cbmmissioncd; qualified and acting,
appeared the within named EILEgN JENNINGS and JASON EVINS, to me personally well
known (or satisfactorily proven to be such persons), who stated and acknowledged that they were
the President and Secretary/Treasurer, respectively, of NORTHWEST ARKANSAS LAND
TRUST, an Arkansas non-profit corporation, duly authorized as such officers to execute the
foregoing instrument for and in the name and behalf of said corporation and further stated and
acknowledged that they had so signed, executed and delivered said foregoing instrument for the
consideration and purposes therein mentioned and set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and seal as such Notary Public on
this the 3"0 :.:day of : L6 l 2020.:.
My Commission Expires: LEAH SAMAN --
Notary Public NOTARY PUBLIC
WASHINGTON COUNTY, ARKANSAS
COMM. EXP. JULY 11: 2029
-23-
LEGAL DESCRIPTION OF THE PROPERTY
A part of the Northwest Quarter (NW 1/4) of the Northeast Quarter (NEI/4) and a part of the Southwest
Quarter (SWI/4) of the Northeast Quarter (NEI/4) of Section Fourteen (14) Township Sixteen (16)
North, Range Thirty -One (3 1) West, of the 5th Principle Meridian, Washington County, Arkansas
and being more particularly described as follows:
Beginning at a point South 02°51"40" West 265.61 feet and South 87°42'10" East 64.90 feet from
the Northwest comer of said Northwest Quarter (NW 1/4), Northeast Quarter (NEI/4);
Thence South 87°41'22" East a distance of 138.60 feet to the beginning of a curve to the left, said curve
having a radius of 288.50 feet and a central angle of 31°47'27" and a chord bearing and distance
of North 76°24'55" East 158.03 feet;
Thence along said curve a distance of 160.08 feet to the point of tangent;
Thence North 60°31'11" East a distance of 320.50 feet to the southerly line of a water and sewer
easement filed as 0023-00172 Washington County Circuit Clerk;
Thence along said southerly easement line South 8742'12" East a -distance of 678.40 feet to a point;
Thence leaving said easement southerly line South 02°36'15" West a distance of 868.55 feet to a point;
Thence North 87°42'04" West a distance of 129.83 feet to a point;
Thence South 03000108" West a distance of 711.16 feet to a point;
Thence North 88°32'12" West a distance of 1103.86 feet to the Easterly right-of-way 54th Street;
Thence along said right-of-way North 02°30'58" East a distance of 1383.71 feet to the point of
beginning, having an area of 41.10 acres more or less. Subject to any rights-of-way of roads or
easements of record.
EXHIBIT B
GRAPHIC DEPICTION OF THE PROPERTY
EXHIBIT
MAY 2019
ADDITIONAL WET PRAIRIE
FOR
CITY OF FAYETTEVILLE
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EXHIBIT
MAY 2019
ADDITIONAL WET PRAIRIE
FOR
CITY OF FAYETTEVILLE
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EXHIBIT
MAY 2019
ADDITIONAL WET PRAIRIE
FOR
CITY OF FAYETTEVILLE
-25-
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RESOLUTION NO. 235-13
A RESOLUTION TO REAFFIRM THE CITY COUNCIL'S SUPPORT FOR
THE EXPANSION OF THE WOOLSEY WET PRAIRIE TO CREATE A
WETLAND BANK FOR THE CITY AND POSSIBLY OTHER AGENCIES IF
ALLOWED BY THE CORPS OF ENGINEERS
WHEREAS, during the construction for the West Side Wastewater Treatment Facility,
the Woolsey Wet Prairie was constructed to create an historical wetlands and to mitigate the
wetlands loss caused by the construction of the treatment plant, new lift stations, and miles of
new sewer mains; and
WHEREAS, the Woolsey Wet Prairie did not even need to be planted with historical
wetland prairie plants which instead sprouted from long dormant seeds once the wetland prairie
was restored with berming and water controls; and
WHEREAS, after the great success in restoring about 44 acres of wet prairie, the Mayor,
City Council and City Staff determined in 2009 to expand the Woolsey Wet Prairie to about
another 80 acres and funded this construction through the CIP for $350,000.00 in 2011; and
WHEREAS, the Corps of Engineers has finally granted the City the approval to use
credits from the expanded Woolsey Wet Prairie as mitigation credits for City projects (but will
not now allow sale of these credits to outside agencies).
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 reaffirms
the City Council's support for the expansion of the Woolsey Wet Prairie for about 80 additional
acres to create a wetlands bank to be used for City projects and, if later approved by the Corps of
Engineers, to be sold to other agencies to recover the costs of construction of this addition to the
Woolsey Wet Prairie.
PASSED and APPROVED this 19`f' day of November, 2013.
APPROVED:
ATTEST:
J\1 Y 0
cn �,
FAYETTEVILLE •�=
rT^•,9/�
TON
By: A,�--.
SONDRA E. SMITH, City Clerk/Treasurer