HomeMy WebLinkAbout197-20 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 197-20
File Number: 2020-0577
UNIVERSITY OF ARKANSAS REAL ESTATE CONTRACT:
A RESOLUTION TO APPROVE THE REAL ESTATE CONTRACT FOR EQUAL EXCHANGE
OF PROPERTIES OF THE WESTERN SLOPE OF MARKHAM HILL OWNED BY THE
UNIVERSITY OF ARKANSAS WITH PROPERTY OWNED BY THE CITY OF
FAYETTEVILLE ON RAZORBACK ROAD AND INDIAN TRAILS, AND TO APPROVE A
BUDGET ADJUSTMENT
WHEREAS, the 62.4 acres of Markham Hill property was appraised in early April of 2020 for
$3,087,000; and
WHEREAS, the roughly 10 acres of land on Razorback Road and Indian Trails was appraised in
February of 2019 at $2,839,000; and
WHEREAS, by trading the ten acre parcel on Indian Trails and Razorback Road to the University
for the 62.4 acres on Markham Hill, the City can preserve substantial green space and tree canopy on
Markham Hill, and create nature and biking trails there to connect to the City's trail system linking
Markham Hill to the University, Millsap Mountain, and Mount Kessler Regional Park; and
WHEREAS, the City Council of the City of Fayetteville determines that the 10 acre parcel on
Indian Trails and Razorback Road is not needed for corporate purposes and should be traded for the
University's 62.4 acres on Markham Hill.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the attached
Page 1 Printed on 7/23/20
Resolution: 197-20
File Number 2020-0577
Real Estate Contract for Equal Exchange and authorizes Mayor Jordan to sign this Contract with the
University of Arkansas and any and all other documents needed to accomplish this the equal exchange
of properties owned by the University of Arkansas and the City of Fayetteville.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget
adjustment, a copy of which is attached to this Resolution, for closing costs associated with the
property exchange.
PASSED and APPROVED on 7/21/2020
Attest: I r t r
GOER K
�J.•'GJY '•:�9'��
:v,• 0,�•J'G�
Kara Paxton, City Clerk Treasurer
•.ANSPS
';i,G �ON1 CO '�%�
Page 2 Printed on 7/23,20
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
r ` (479) 575-8323
Text File
File Number: 2020-0577
Agenda Date: 7/21/2020 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Resolution
Agenda Number: C. 5
UNIVERSITY OF ARKANSAS REAL ESTATE CONTRACT:
A RESOLUTION TO APPROVE THE REAL ESTATE CONTRACT FOR EQUAL EXCHANGE OF
PROPERTIES OF THE WESTERN SLOPE OF MARKHAM HILL OWNED BY THE UNIVERSITY
OF ARKANSAS WITH PROPERTY OWNED BY THE CITY OF FAYETTEVILLE ON RAZORBACK
ROAD AND INDIAN TRAILS, AND TO APPROVE A BUDGET ADJUSTMENT
WHEREAS, the 62.4 acres of Markham Hill property was appraised in early April of 2020 for $3,087,000;
and
WHEREAS, the roughly 10 acres of land on Razorback Road and Indian Trails was appraised in February of
2019 at $2,839,000; and
WHEREAS, by trading the ten acre parcel on Indian Trails and Razorback Road to the University for the
62.4 acres on Markham Hill, the City can preserve substantial green space and tree canopy on Markham Hill,
and create nature and biking trails there to connect to the City's trail system linking Markham Hill to the
University, Millsap Mountain, and Mount Kessler Regional Park; and
WHEREAS, the City Council of the City of Fayetteville determines that the 10 acre parcel on Indian Trails
and Razorback Road is not needed for corporate purposes and should be traded for the University's 62.4
acres on Markham Hill.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the attached Real
Estate Contract for Equal Exchange and authorizes Mayor Jordan to sign this Contract with the University of
Arkansas and any and all other documents needed to accomplish this the equal exchange of properties owned
by the University of Arkansas and the City of Fayetteville.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a
copy of which is attached to this Resolution, for closing costs associated with the property exchange.
City of Fayetteville, Arkansas Page I Printed on 7/22/2020
File Number: 2020-0577
City of Fayetteville, Arkansas Page 2 Printed on 712212020
Susan Norton
Submitted By
City of Fayetteville Staff Review Form
2020-0577
Legistar File ID
7/21/2020
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
7/6/2020 CHIEF OF STAFF (070)
Submitted Date Division / Department
Action Recommendation:
A Resolution to Approve the Real Estate Contract for Equal Exchange of Properties of the western slope of
Markham Hill owned by the University of Arkansas with property owned by the City of Fayetteville on Razorback
Road and Indian Trails and approval of a Budget Adjustment.
Budget Impact:
1010.090.6600-5805.00
1010 - General
Account Number Fund
N/A N/A
Project Number
Budgeted Item? Yes Current Budget
Funds Obligated
Current Balance
Does item have a cost? No Item Cost
Budget Adjustment Attached? Yes Budget Adjustment
Remaining Budget
Project Title
$
22,000.00
$
22,000.00 1
$
8,000.00
$
30,000.00
V20180321
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number:
Original Contract Number:
Comments:
Approval Date:
CITY OF
FAYETTEVILLE
WWN ARKANSAS
MEETING OF JULY 21, 2020
TO: Mayor and City Council
FROM: Susan Norton, Chief of Staff
DATE: 07/06/2020
CITY COUNCIL MEMO
SUBJECT: A Resolution to Approve the Real Estate Contract for Equal Exchange of
Properties of the western slope of Markham Hill owned by the University of Arkansas
with property owned by the City of Fayetteville on Razorback Road and Indian Trails.
RECOMMENDATION:
Staff recommends the City Council approve the Real Estate Contract for Equal Exchange of
Properties of the western slope of Markham Hill owned by the University of Arkansas with
property owned by the City of Fayetteville on Razorback Road and Indian Trails.
BACKGROUND:
The City had the Markham Hill Property appraised in early April of 2020 for $3,087,000. The
site consists of 62.40 acres and is a single platted parcel of land located on the east side of N.
Futrall Drive. The roughly 10 acres of land on Razorback Road was appraised at $2,839,000 in
February of 2019.
DISCUSSION:
Since the acquisition of Kessler Mountain and Centennial Park at Millsap Mountain, the Mayor
has continued to negotiate with the University for the Markham Hill property as a way to
preserve additional green space and tree canopy in the heart of the city and to connect the
City's trail system.
The City of Fayetteville shall convey the City's Indian Trails Property to University of Arkansas;
and in exchange, University of Arkansas shall convey the University's Markham Hill Property to
the City of Fayetteville. The University and City shall share the closing agent's fee and pay
recording fees for any release deeds and the recording fee for the general warranty deed on
obtained property.
One concept for the connectivity of the trail system Is the Fayetteville Traverse Trail. This trail
aims to create a unique trail experience for Fayetteville, highlighting and knitting together city
amenities including parks, trails, residences, the University and downtown. The trail has the
potential to become a destination itself, offering an experience hard to find anywhere else. The
Traverse is intended to be developed as a multi -use trail system open to all human -powered
users such as bikers, runners, hikers, dog walkers, bird watchers, and students accessing
natural areas for research and education.
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
Upon completion of this project, approximately 21,000 residents will be within 1/2 mile of the
Traverse Trail system, greatly expanding opportunity for access to trails and destinations to
residents, visitors and students. A focused effort to increase the number of interconnected trails
will provide a wider user base of residents and visitors access, thereby increasing the activity in
and appreciation of our preserved natural areas.
The City has been working with Trailblazers to coordinate the alignment of the Fayetteville
Traverse Trail through city properties, as shown in the attached conceptual plan. Trailblazers is
also coordinating alignment with the University and other private property owners to complete
the loop.
BUDGET/STAFF IMPACT:
Estimated closing costs are $8,000.
Attachments:
Budget Adjustment
Aerial Maps of property to be exchanged
Conceptual Map of Traverse Trail
Real Estate Contract
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UNIVERSITY OF ARKANSAS & CITY OF FAYETTEVILLE
REAL ESTATE CONTRACT
EQUAL EXCHANGE OF PROPERTIES
On thZbay of 2020, the Board of Trustees of the University
of Arkansas ("University of Arkansas" or "University"), acting for the University of
Arkansas, Fayetteville, and the City Council of the City of Fayetteville, Arkansas ("City of
Fayetteville" or "City") mutually assert, agree, covenant, and promise:
1. The University of Arkansas owns property containing about 62.4 acres situated
in Fayetteville, Washington County, Arkansas (commonly known as part of the western
slope of Markham Hill) and more particularly described as follows:
Legal Description of "University's Pro e�rty":
See attached Exhibit "A."
2. The City of Fayetteville owns property containing about 10 acres on Razorback
Road and Indian Trails situated in Fayetteville, Washington County, Arkansas (commonly
known as the Indian Trails property) and more particularly described as follows:
Legal Description of City's Property:
See attached Exhibit "B."
3. The City of Fayetteville shall convey the City's Indian Trails Property to
University of Arkansas; and in exchange, University of Arkansas shall convey the
University's Markham Hill Property to the City of Fayetteville.
4. The University and City shall share equally the closing agent's fee. Both will pay
recording fees for any release deeds, and both will pay the recording fee for the general
warranty deed on obtained property. Closing agent will prepare the general warranty
deeds and any other closing documents required by both parties at closing. Each party
hereby authorizes the closing agent to have prepared any release deeds, affidavits or other
documents required to be executed by parties at closing.
5. Conveyance shall be made to each party by general warranty deed, subject to
recorded restrictions and easements, if any, which, in each party's sole discretion, do not
materially affect the merchantability of the property or either party's intended use of the
obtained property. Both parties shall also execute at closing an affidavit stating in
substance that the property each is exchanging is not subject to adverse possession claims
and that no work or materials have been performed on the property within one hundred
and thirty (130) days of closing for which a lien might be asserted.
6. From the date of this real estate equal exchange contract through the date of
closing, the conveying party shall not dedicate, gift, transfer, mortgage, or convey any
interest in any of the subject properties without written consent from the receiving party,
which may be withheld for any reason.
7. Each party shall furnish the receiving party at conveying party's cost an owner's
policy of title insurance in the following amounts: University's approximate 62.40 acres -
$3,000,000; City's approximate 10 acres - $3,000,000; reflecting merchantable title
satisfactory to each party's attorney and issued by a title insurance company qualified to
do business in the State of Arkansas and acceptable to each party. If objections are made
to conveying party's title as reflected by requirements or exceptions to the commitment to
furnish title insurance, conveying party shall have a reasonable time, not to exceed sixty
(60) days from the date of receiving party's notification of such objections, to cure such
defects to receiving party's satisfaction.
8. General property taxes and special assessments, if any, due on or before the
closing date shall be paid by each party of property being conveyed. General taxes and
special assessments, if any, for 2020 shall be prorated as of the closing date based upon
the previous year's tax statement unless a reassessment or millage increase or decrease
has occurred for the year in which closing occurs, in which case prorations shall be based
upon the reassessed value including any increase or decrease in millage.
9. Each conveying party represents to each receiving party that the conveying
party has full power and authority to execute this real estate equal exchange contract and
that there are no options, rights of first refusal or contracts, written or oral, for the sale of
the property or which otherwise would affect conveying party's obligations hereunder.
10. Closing shall be at a time and place established by both parties and is projected
to occur no later than August 15, 2020. Either party may extend the closing date beyond
such time if necessary to complete title requirements, inspections or review and approval
of agencies of the State of Arkansas. Possession of conveyed property shall be delivered to
each party at closing. Each party agrees that it will execute and deliver such other
documents and take such other action, whether prior or subsequent to closing, as may be
reasonably requested by the other party to consummate more effectively the purposes of
this real estate equal exchange contract.
11. Either party may inspect the property being obtained prior to closing and shall
not rely upon any warranties, representations or statements of conveying party, if any, as
to the age or condition of the improvements other than those specified hereon. The subject
properties shall all be conveyed "as -is," except for any warranties or representations
provided in this real estate contract and the warranties in the general warranty deeds. TO
THE BEST OF EITHER PARTY'S KNOWLEDGE AND BELIEF, THE PROPERTY IS FREE FROM
ENVIRONMENTAL HAZARDS, SUBSTANCES OR CONDITIONS. Prior to the Closing date,
each party may obtain at its cost a Phase I environmental report performed by its own
professionals or firm selected. If the report discloses environmental hazards of any nature
whatsoever requiring remediation, the receiving party will have the right to terminate this
contract unless conveying party elects to pay the cost of remediation or to reduce the
purchase price by the cost of remediation. If conveying party fails or refuses to remediate
conditions noted by receiving party's inspection, receiving party may terminate this
contract or, in the alternative, receiving party may accept the property in its condition at
closing.
12. The risk of loss or damage to the property by fire or other casualty occurring up
to the time of closing is assumed by the conveying party.
13. Parties covenant that if a broker, agent, or finder has been involved in this real
estate contract, parties hiring such broker, agent, or finder wiil pay any commission owed.
14. This real estate contract contains the entire agreement of the parties and may
not be changed, modified or amended except by instrument in writing signed by both
parties. There are no agreements or representations, written or oral, with respect to the
subject matter of this contract which are not contained herein.
15. The rights, obligations, and representations, and warranties under this real
estate equal exchange contract shall survive closing and shall not merge with the warranty
deeds.
16. This real estate equal exchange contract is subject to the final approval of the
Board of Trustees of the University of Arkansas, as evidenced by a resolution of the Board
providing such approval and the approval of the City Council of the City of Fayetteville,
Arkansas, as evidenced by its Resolution.
CITY OF FAYETTEVILLE BOARD OF TRUSTEES OF THE UNIVERSITY
ARKANSAS/ OFARKANSAS
By:
Joseph E. Steinmetz, Chancellor
ATTEST:
```����►►►►rrrr�� By:
a'Dpnald R
Kara Paxton, Ci Clerk : F �� •9,
y� ' AS
Bobbitt, President
EXHIBIT "A"
Vacant Land (62.40 acres more or less) situated east of 1-49 at the end of W. Maple
Street, Fayetteville, AR, better known as part of Markham Hill.
Legal:
The North Half (N 1/2) of the NE'/4 of Section 18 in Township 16 North of Range 30
West, except 7.5 acres, more or less, described as beginning at the SE corner of
said 80 acre tract, and running thence North 30 rods; thence West 40 rods, thence
South 30 rods; thence East 40 rods to the place of beginning, leaving herein 72.5
acres, more or less; LESS AND EXCEPT the following described tract, to -wit:
Beginning at a point on the East right of way line of Highway 71 Bypass which is
South 88 degrees 57 minutes West 897.7 feet from the NE corner of the SW 1/4 of
the NE'/4 of said Section, Township and Range, and running along said right of way
line North 24 degrees 13 minutes West 498 feet; thence North 22 degrees 05
minutes West 381.6 feet; thence North 09 degrees 19 minutes West 516.4 feet;
thence departing said right of way line and running South 0 degrees 25 minutes
East 1325.1 feet; thence North 88 degrees 57 minutes East 422.3 feet to the point of
beginning, containing 5.091 acres, more or less, and leaving herein 67.409 acres,
more or less; ALSO LESS AND EXCEPT the following described tract, to -wit:
Beginning at a point which is 30 rods North of the Southeast corner of the North'/2
of the NE'/4 of the said Section 18, and running thence North 330 feet; thence West
660 feet; thence South 330 feet; thence East 660 feet to the point of beginning,
being five acres more or less; ALSO LESS AND EXCEPT the following described
tract, to -wit: Starting at the Northwest corner of the Northwest Quarter of the
Northeast Quarter of Section 18 said point also being on the Easterly existing right
of way line of U.S. Highway #71; thence South 09' 13' East along said existing right
of way line a distance of 326.1 feet to a point on the Easterly proposed right of way
line of U.S. Highway #71 for the point of beginning; thence South 20' 32' East along
said proposed right of way line a distance of 286.3 feet to a point; thence South 25°
56' East along said proposed right of way line a distance of 377.6 feet to a point;
thence South 32° 47' East along said proposed right of way line a distance of 188.0
feet to a point; thence South 38' 16' East along said proposed right of way line a
distance of 135.9 feet to a point; thence South 12° 49' East along said proposed
right of way line a distance of 122.7 feet to a point on the South line of the
Northwest Quarter of the Northeast Quarter of the Northeast Quarter of Section 18;
thence South 88' 58' West along said South line a distance of 100.1 feet to a point
on the Easterly existing right of way line of U.S. Highway #71; thence North 24° 11'
West along said existing right of way line a distance of 482.2 feet to a point; thence
North 22° 08' West along said existing right of way line a distance of 402.5 feet to a
point; thence North 09' 13' West along said existing right of way line a distance of
183.6 feet to the point of beginning and containing 1.40 acres, more or less; and
including oil and gas interests that do not interfere with the surface use for
highway purposes and including further the rights of access and use of frontage
roads save for the assigns of the defendant in the judgment of June 20, 1969 in
Arkansas State Highway Commission v. Evangeline Pratt Waterman (Archer) being
case number 6025, Circuit Court of Washington County, Arkansas, as said judgment
is recorded at page 254, Volume 43, records of the Circuit Court in and for said
county and state; and subject to all easements, roads, lanes, streets, utilities, as
now located, whether recorded or unrecorded.
EXHIBIT "B"
Vacant Land W. Indian Trail & S. Razorback Road.
Legal:
A tract of land situated in the Northeast Quarter (NE'/a) of the Northeast Quarter
(NE'/a) of Section Twenty (20), Township Sixteen (16) North, Range Thirty (30) West
of the 51h Principal Meridian, being more particularly described as follows, to -wit:
Beginning at a point which is 1318.36 feet West and 266.5 feet South 0 degrees 07
minutes West of the Northeast corner of the above described quarter quarter,
thence East over the centerline of an existing well 823.36 feet, thence South 0
degrees 07 minutes West 264.52 feet, thence West 823.36 feet, thence North 0
degrees 07 minutes East 264.52 feet to the point of beginning and containing 5.0
acres, more or less.
AND
A tract of land situated in the Northeast Quarter (NE Ya) of the Northeast Quarter
(NE 1/4) of Section Twenty (20), Township Sixteen (16) North, Range Thirty (30) West
of the 51h Principal Meridian, being more particularly described as follows, to -wit:
Beginning at a point which is 12.11 feet South of the Northwest corner of said forty,
said point is also 10.0 feet North of the centerline of the St. Louis -San Francisco
Railroad, thence N 83°0'E, paralleling said railroad centerline 10.0 feet to the North,
99.40 feet to the North line of said Northeast Quarter of the Northeast Quarter,
thence East, along said forty line, 725.0 feet, thence South 266.5 feet, thence West
823.66 feet to the West line of said Northeast Quarter of the Northeast Quarter,
thence North, along said forth line, 254.38 feet, to the point of beginning.
Containing 5.02 acres, more or less. Less and except that portion contained in the
railroad right of way in the Northwest corner of herein described tract.
0
City of Fayetteville, Arkansas - Budget Adjustment Form (Legistar)
Budget Year Division Adjustment Number
CHIEF OF STAFF (070)
2020 /Org2
Requestor: Holly Black
BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION:
Closing costs for the equal exchange of properties of the the western slope of Markam Hill owned by the University of
Arkansas with property owned by the City of Fayetteville on Razorback Road and Indian Trails.
RESOLUTION/ORDINANCE
COUNCIL DATE
LEGISTAR FILE ID
7/21/2020
#: 2020-0577
Houy 310,Ck.
71712020 10:12 AM
Budget Director Date
TYPE: D - (City Council)
JOURNAL #:
GLDATE: 7/21/2020
CHKD/POSTED:
TOTAL 8,000 8,000 v.20200528
Increase / (Decrease) Project.Sub#
Account Number Expense Revenue Project Sub.Detl AT Account Name
1010.090.6600-5805.00 8,000 - EX Land-- Acquisition
1010.001.0001-4999.99 - 8,000 RE Use Fund Balance - Current
H:\Budget Adjustments\2020_Budget\City Council\07-21-2020\2020-0577 Markam Hill Land Swap closing costs 1 of 1
CitvClerk
From: CityClerk
Sent: Tuesday, July 14, 2020 8:03 AM
To: Bolinger, Bonnie; Pennington, Blake; CityClerk; citycouncil@matthewpetty.org; Eads,
Gail; Roberts, Gina; Batker, Jodi; Johnson, Kimberly; Rogers, Kristin; Williams, Kit;
Branson, Lisa; Jordan, Lioneld; Mathis, Jeana; Paxton, Kara; Mulford, Patti; Norton, Susan;
Thurber, Lisa; Gutierrez, Sonia; Marsh, Sarah; Kinion, Mark; Scroggin, Sloan; Bunch,
Sarah; Turk, Teresa; Smith, Kyle
Cc: Sun Flower
Subject: FW: Please forward
Mayor Jordan and Members of the Council:
I will address two issues that are coming before the Council on July 14th.
1) 1 am opposed to Sigma Phi Epsilon building their fraternity house to a scale that is incompatible with the historic
neighborhood along Arkansas Avenue. In addition to the incompatibility, a housing expansion of such capacity would
add vehicular traffic and/or parking issues in an already sensitive area.
2) 1 am in favor of the Council pursuing the land swap with the City, exchanging the Markham property with the city
acreage south of MLK.
I support this exchange with the understanding that the Markham property would be held in conservation, or put to
such public use that would keep the property in its primarily natural state, but also protect the surrounding
neighborhoods from incursion of vehicular traffic to gain access to the property.
Thanks for your consideration.
Margaret Holcomb
548 N Gray Ave
Fayetteville, AR 72701
sunflowerwiks@gmail.com
4
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
CC: Susan Norton, Chief of Staff
Paul Becker, Finance Director
Connie Edmonston, Parks and Recreation Director
FROM: Kit Williams, City Attorney
DATE: July 20, 2020
RE: Markham Hill Contract Legally Proper
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
The City may legally acquire the 62 acres on Markham Hill with the intent to use
it as a nature park for our citizens with limited development in exchange for the
Razorback Road acreage valued around Three Million Dollars. However, the City cannot
legally agree that it will allow no development and no trails, nor place such restrictions
on the 62 acres that our citizens would have limited access to use and enjoy this nature
park.
If the City tries to be too restrictive in how the 62 acres on Markham Hill could be
used by our citizens, we would be in danger of committing an illegal exaction by
exchanging our very valuable Razorback Road property for Markham Hill. The
appraisals of both properties were made pursuant to their value as developable land. If
Markham Hill's acreage were not allowed to be developed at least as a nature park similar
to Mount Sequoyah Woods, Centennial Park and Kessler Mountain Regional Park with
trails, and other amenities and potentially parking areas near its edges to serve all of our
citizens who might wish to enjoy this park, then its actual monetary value may not be
adequate consideration to support the conveyance of the Razorback Road property to the
University.
The Arkansas Supreme Court upheld the denial by the lower court of the City of
Russellville's attempted conveyance of about 1.7 acres (Harmon Park near downtown to
be used for a proposed shopping center) in exchange for 2 acres near a new school farther
from downtown and with little other development nearby. The City of Russellville
argued that its receipt of the 2 acres was legally adequate consideration for the
conveyance of Harmon Park. The Arkansas Supreme Court noted that the chancellor had
invalidated the deal "holding that there was an inadequacy of consideration. We are of
the opinion that the chancellor was correct on both points." James Company, Inc. v.
Sheppard, 249 Ark. 81, 458 S.W. 2d 752, 755 (1970)
"(T)he expert appraisal testimony most favorable to the appellant
(the shopping center company), places the value of the Harmon playground
property almost twice the value of the property offered in exchange
according to the only appraisal made of the property offered in exchange."
Id. 458 S.W. 2d at 758.
Since the appraisal value of the 62.4 acres on Markham Hill was based upon the
development potential of the acreage, that appraisal would be invalid if the City now
determined that virtually no development could occur on the 62.4 acres of Markham
Hill. Such a substantially revised valuation would likely not be legally sufficient to
support the conveyance of the Razorback Road - Indian Trails ten acres to the
University because of "inadequacy of consideration."
This does not mean that commercial or residential use must be planned for
Markham Hill. The City previously purchased portions of Mount Sequoyah, Kessler
Mountain and Millsap Mountain for a combined total of millions of dollars. These were
legal and proper purchases based upon their reasonable development including trails
and other park amenities to serve our citizens. The same type of primarily nature park
development accessible by citizens, residents and visitors wishing to use the park on
Markham Hill would be adequate legal consideration to support this exchange with the
University.
Therefore, the equal exchange of properties contract presented for your
consideration by Mayor Jordan is legally proper and will be supported by adequate
consideration as long as the City Council does not pledge to refrain from the normal
development and use of Markham Hill as a City nature park.
UNIVERSITY OF ARKANSAS & CITY OF FAYETTEVILLE
REAL ESTATE CONTRACT
EQUAL EXCHANGE OF PROPERTIES
On this aday of fub ., 2020, the Board of Trustees of the University
of Arkansas ("University of Arkansa or "University"), acting for the University of
Arkansas, Fayetteville, and the City Council of the City of Fayetteville, Arkansas ("City of
Fayetteville" or "City") mutually assert, agree, covenant, and promise:
1. The University of Arkansas owns property containing about 62.4 acres situated
in Fayetteville, Washington County, Arkansas (commonly known as part of the western
slope of Markham Hill) and more particularly described as follows:
Legal Description of "University's Property":
See attached Exhibit "A."
2. The City of Fayetteville owns property containing about 10 acres on Razorback
Road and Indian Trails situated in Fayetteville, Washington County, Arkansas (commonly
known as the Indian Trails property) and more particularly described as follows:
Legal Description of City's Property:
See attached Exhibit "B."
3. The City of Fayetteville shall convey the City's Indian Trails Property to
University of Arkansas; and in exchange, University of Arkansas shall convey the
University's Markham Hill Property to the City of Fayetteville.
4. The University and City shall share equally the closing agent's fee. Both will pay
recording fees for any release deeds, and both will pay the recording fee for the general
warranty deed on obtained property. Closing agent will prepare the general warranty
deeds and any other closing documents required by both parties at closing. Each party
hereby authorizes the closing agent to have prepared any release deeds, affidavits or other
documents required to be executed by parties at closing.
5. Conveyance shall be made to each party by general warranty deed, subject to
recorded restrictions and easements, if any, which, in each party's sole discretion, do not
materially affect the merchantability of the property or either party's intended use of the
obtained property. Both parties shall also execute at closing an affidavit stating in
substance that the property each is exchanging is not subject to adverse possession claims
and that no work or materials have been performed on the property within one hundred
and thirty (130) days of closing for which a lien might be asserted.
6. From the date of this real estate equal exchange contract through the date of
closing, the conveying party shall not dedicate, gift, transfer, mortgage, or convey any
interest in any of the subject properties without written consent from the receiving party,
which may be withheld for any reason.
7. Each party shall furnish the receiving party at conveying party's cost an owner's
policy of title insurance in the following amounts: University's approximate 62.40 acres -
$3,000,000; City's approximate 10 acres - $3,000,000; reflecting merchantable title
satisfactory to each party's attorney and issued by a title insurance company qualified to
do business in the State of Arkansas and acceptable to each party. If objections are made
to conveying party's title as reflected by requirements or exceptions to the commitment to
furnish title insurance, conveying party shall have a reasonable time, not to exceed sixty
(60) days from the date of receiving party's notification of such objections, to cure such
defects to receiving party's satisfaction.
8. General property taxes and special assessments, if any, due on or before the
closing date shall be paid by each party of property being conveyed. General taxes and
special assessments, if any, for 2020 shall be prorated as of the closing date based upon
the previous year's tax statement unless a reassessment or millage increase or decrease
has occurred for the year in which closing occurs, in which case prorations shall be based
upon the reassessed value including any increase or decrease in millage.
9. Each conveying party represents to each receiving party that the conveying
party has full power and authority to execute this real estate equal exchange contract and
that there are no options, rights of first refusal or contracts, written or oral, for the sale of
the property or which otherwise would affect conveying party's obligations hereunder,
10. Closing shall be at a time and place established by both parties and is projected
to occur no later than August 15, 2020. Either party may extend the closing date beyond
such time if necessary to complete title requirements, inspections or review and approval
of agencies of the State of Arkansas. Possession of conveyed property shall be delivered to
each party at closing. Each party agrees that it will execute and deliver such other
documents and take such other action, whether prior or subsequent to closing, as may be
reasonably requested by the other party to consummate more effectively the purposes of
this real estate equal exchange contract.
11. Either party may inspect the property being obtained prior to closing and shall
not rely upon any warranties, representations or statements of conveying party, if any, as
to the age or condition of the improvements other than those specified hereon. The subject
properties shall all be conveyed "as -is," except for any warranties or representations
provided in this real estate contract and the warranties in the general warranty deeds. TO
THE BEST OF EITHER PARTY'S KNOWLEDGE AND BELIEF, THE PROPERTY IS FREE FROM
ENVIRONMENTAL HAZARDS, SUBSTANCES OR CONDITIONS. Prior to the Closing date,
each party may obtain at its cost a Phase I environmental report performed by its own
professionals or firm selected. If the report discloses environmental hazards of any nature
whatsoever requiring remediation, the receiving party will have the right to terminate this
contract unless conveying party elects to pay the cost of remediation or to reduce the
purchase price by the cost of remediation. If conveying party fails or refuses to remediate
3
conditions noted by receiving party's inspection, receiving party may terminate this
contract or, in the alternative, receiving party may accept the property in its condition at
closing.
12. The risk of loss or damage to the property by fire or other casualty occurring up
to the time of closing is assumed by the conveying party.
13. Parties covenant that if a broker, agent, or finder has been involved in this real
estate contract, parties hiring such broker, agent, or finder will pay any commission owed.
14. This real estate contract contains the entire agreement of the parties and may
not be changed, modified or amended except by instrument in writing signed by both
parties. There are no agreements or representations, written or oral, with respect to the
subject matter of this contract which are not contained herein.
15. The rights, obligations, and representations, and warranties under this real
estate equal exchange contract shall survive closing and shall not merge with the warranty
deeds.
16. This real estate equal exchange contract is subject to the final approval of the
Board of Trustees of the University of Arkansas, as evidenced by a resolution of the Board
providing such approval and the approval of the City Council of the City of Fayetteville,
Arkansas, as evidenced by its Resolution.
BOARD OF TRUSTEES OF THE UNIVERSITY
OF ARKANSAS
By: _ r_.
Josep . Steinmetz, dhancellor
ATIh5I: Oft - .�
GLE.RK���''��,By:
Donald R. Bobbitt, President
Kara Paxton, City Clerk
�, :�
ON COO
EXHIBIT "A"
Vacant Land (62,40 acres more or less) situated east of 1-49 at the end of W. Maple
Street, Fayetteville, AR, better known as part of Markham Hill.
Legal:
The North Half (N 1/2) of the NE 1/4 of Section 18 in Township 16 North of Range 30
West, except 7.5 acres, more or less, described as beginning at the SE corner of
said 80 acre tract, and running thence North 30 rods; thence West 40 rods, thence
South 30 rods; thence East 40 rods to the place of beginning, leaving herein 72.5
acres, more or less; LESS AND EXCEPT the following described tract, to -wit:
Beginning at a point on the East right of way line of Highway 71 Bypass which is
South 88 degrees 57 minutes West 897.7 feet from the NE corner of the SW'/4 of
the NE 1/4 of said Section, Township and Range, and running along said right of way
line North 24 degrees 13 minutes West 498 feet; thence North 22 degrees 05
minutes West 381.6 feet; thence North 09 degrees 19 minutes West 516.4 feet;
thence departing said right of way line and running South 0 degrees 25 minutes
East 1325.1 feet; thence North 88 degrees 57 minutes East 422.3 feet to the point of
beginning, containing 5.091 acres, more or less, and leaving herein 67.409 acres,
more or less; ALSO LESS AND EXCEPT the following described tract, to -wit:
Beginning at a point which is 30 rods North of the Southeast corner of the North 1/2
of the NE'/4 of the said Section 18, and running thence North 330 feet; thence West
660 feet; thence South 330 feet; thence East 660 feet to the point of beginning,
being five acres more or less; ALSO LESS AND EXCEPT the following described
tract, to -wit: Starting at the Northwest corner of the Northwest Quarter of the
Northeast Quarter of Section 18 said point also being on the Easterly existing right
of way line of U.S. Highway #71; thence South 09' 13' East along said existing right
of way line a distance of 326.1 feet to a point on the Easterly proposed right of way
line of U.S. Highway #71 for the point of beginning; thence South 20° 32' East along
said proposed right of way line a distance of 286.3 feet to a point; thence South 25'
56' East along said proposed right of way line a distance of 377.6 feet to a point;
thence South 32° 47' East along said proposed right of way line a distance of 188.0
feet to a point; thence South 38' 16' East along said proposed right of way line a
distance of 135.9 feet to a point; thence South 120 49' East along said proposed
right of way line a distance of 122.7 feet to a point on the South line of the
Northwest Quarter of the Northeast Quarter of the Northeast Quarter of Section 18;
thence South 88° 58' West along said South line a distance of 100.1 feet to a point
on the Easterly existing right of way line of U.S. Highway #71; thence North 24' 11'
West along said existing right of way line a distance of 482.2 feet to a point; thence
North 22' 08' West along said existing right of way line a distance of 402.5 feet to a
point; thence North 09' 13' West along said existing right of way line a distance of
183.6 feet to the point of beginning and containing 1.40 acres, more or less; and
including oil and gas interests that do not interfere with the surface use for
highway purposes and including further the rights of access and use of frontage
roads save for the assigns of the defendant in the judgment of June 20, 1969 in
Arkansas State Highway Commission v. Evangeline Pratt Waterman (Archer) being
case number 6025, Circuit Court of Washington County, Arkansas, as said judgment
is recorded at page 254, Volume 43, records of the Circuit Court in and for said
county and state; and subject to all easements, roads, lanes, streets, utilities, as
now located, whether recorded or unrecorded.
EXHIBIT "B"
Vacant Land W. Indian Trail & S. Razorback Road.
Legal:
A tract of land situated in the Northeast Quarter (NE'/a) of the Northeast Quarter
(NE Yo) of Section Twenty (20), Township Sixteen (16) North, Range Thirty (30) West
of the 5" Principal Meridian, being more particularly described as follows, to -wit:
Beginning at a point which is 1318.36 feet West and 266.5 feet South 0 degrees 07
minutes West of the Northeast corner of the above described quarter quarter,
thence East over the centerline of an existing well 823.36 feet, thence South 0
degrees 07 minutes West 264.52 feet, thence West 823.36 feet, thence North 0
degrees 07 minutes East 264.52 feet to the point of beginning and containing 5.0
acres, more or less.
AND
A tract of land situated in the Northeast Quarter (NE 1/a) of the Northeast Quarter
(NE'/a) of Section Twenty (20), Township Sixteen (16) North, Range Thirty (30) West
of the 5`h Principal Meridian, being more particularly described as follows, to -wit:
Beginning at a point which is 12.11 feet South of the Northwest corner of said forty,
said point is also 10.0 feet North of the centerline of the St. Louis -San Francisco
Railroad, thence N 83°0'E, paralleling said railroad centerline 10.0 feet to the North,
99.40 feet to the North line of said Northeast Quarter of the Northeast Quarter,
thence East, along said forty line, 725.0 feet, thence South 266.5 feet, thence West
823.66 feet to the West line of said Northeast Quarter of the Northeast Quarter,
thence North, along said forth line, 254.38 feet, to the point of beginning.
Containing 5.02 acres, more or less. Less and except that portion contained in the
railroad right of way in the Northwest corner of herein described tract.
M
NOW
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Blake E. Pennington
Assistant City Attornev
bpenni ngton@fayettevi lle-ar.gov
Jodi Batker
Paralegal
Phone 479.575.8313
Michael A. Martz
KIT WILLIAMS
FAYETTEVILLE CITY ATTORNEY
kwilliamsC'fa%letteville-ar.gov
August 11, 2020
Associate General Counsel, University of Arkansas
421 Administration Building
Fayetteville, AR 72701
Re: Signed Resolution and Real Estate Contract
Dear Michael,
113 W. Mountain Street, Suite 302
Fayetteville, AR 72701-6083
It was nice talking with you today. Enclosed are two duplicate originals of the Real Estate
Contract. Please return one to me for our records. I have also enclosed a certified copy of the
authorizing Resolution 197-20 for the contract which is yours to keep. I will try to get the rest of
the documents that you have provided for the lease, etc. fully reviewed with any comments back
to you as soon as possible.
With kindest regards,
Kit Williams
Fayetteville City Attorney
CC: Mayor Lioneld Jordan
City Clerk/ Treasurer Kara Paxton