136381
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RESOLUTION NO. 13,638
3 A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY CLERK TO
4 EXECUTE A CONSOLIDATED ASSIGNMENT OF PARKING
5 AGREEMENTS BETWEEN THE CITY AND FWH II LITTLE ROCK,
6 LLC, FOR PARKING IN THE DOWNTOWN AREA FOR THE
7 PROPERTY COMMONLY REFERRED TO AS THE PEABODY HOTEL
8 AND THE STATEHOUSE CONVENTION CENTER; AND FOR OTHER
9 PURPOSES.
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11 WHEREAS, pursuant to Little Rock, Ark., Resolution No. 13,621 (December 19, 2012), the City
12 authorized a letter of intent to be sent to FWH II Little Rock, LLC ( "FWH "), as to terms and conditions
13 for a lease agreement between that entity, the City, and the Commission, for the lease of the property;
14 and,
15 WHEREAS, there are various parking agreements that have been entered into between the City and
16 BG Excelsior Limited Partnership for parking to serve the hotel and the convention center; and,
17 WHEREAS, the City, the Commission, and FWH desire to keep these agreements in place by simple
18 assignment of all terms and conditions by the City from BG Excelsior Limited Partnership to FWH;
19 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY
20 OF LITTLE ROCK, ARKANSAS:
21 Section 1. The Mayor and City Clerk are authorized to execute an Assignment, Assumption, and
22 First Amendment to Parking Lot Lease Agreements and Reaffirmation and Extension of Ashley Street
23 Parking Franchise in a form acceptable to the City Attorney and in substantially the same form as that
24 attached as Exhibit A to this resolution.
25 Section 2. The Mayor and the City Clerk are also authorized and directed to do any and all things
26 necessary to effect the preparation, execution and delivery of the Assignment, Assumption, and First
27 Amendment to Parking Lot Lease Agreements and Reaffirmation and Extension of Ashley Street Parking
28 Franchise referred to in Section 1, and the performance of all obligations of the City thereunder including,
29 but not limited to, the execution, and delivery of all papers, documents, certificates and other instruments
30 that may be required for the carrying out of such authority or to evidence the exercise thereof.
31 Section 3. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase, or
32 word of this resolution is declared or adjudged to be invalid or unconstitutional, such declaration or
33 adjudication shall not affect the remaining portions of the resolution which shall remain in full force and
(Page 1 of 171
I effect as if the portion so declared or adjudged invalid or unconstitutional were not originally a part of the
2 resolution.
3 Section 4. Repealer. All laws, ordinances, resolutions, or parts of the same, that are inconsistent
4 with the provisions of this resolution, are hereby repealed to the extent of such inconsistency.
5 ADOPTED: January 22, 2013
6 ATTEST: APPROVED•
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ley, City Clerk Mark odola, Mayor
PRO D S TO LEGAL FORM:
Thomas M. Carpenter, City torney
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1 EXHIBIT A
5 Prepared By and Return To:
6 Sumpter M. McGowin II, Esq.
7 Wyatt, Tarrant & Combs, LLP
8 1715 Aaron Brenner Drive, Suite 800
9 Memphis, Tennessee 38120
10 (901) 537 -1000
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12 ASSIGNMENT, ASSUMPTION, AND FIRST AMENDMENT TO
13 PARKING LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION
14 OF ASHLEY STREET PARKING FRANCHISE
15
16 This Assignment, Assumption, and First Amendment to Parking Lot Lease Agreements
17 and Reaffirmation And Extension of Ashley Street Parking Franchise (the "Agreement ") is
18 entered into as of this _ day of , 2013 by and among FWH II Little Rock, LLC,
19 a Delaware limited liability company ( "Lessee "), the City of Little Rock, a municipal corpo-
20 ration organized and existing under and by virtue of the laws of the State of Arkansas act -
21 ing by and through its agent, the City Advertising and Promotion Commission of Little
22 Rock, Arkansas ( "Lessor "), and BG Excelsior Limited Partnership, an Arkansas limited
23 partnership ( "BGE ").
24
25 RECITALS
26
27 WHEREAS, Lessor and BGE are parties to that certain Parking Lease Agreement,
28 as amended, dated the 16th day of September, 1988 which was assigned to BGE pursuant to
29 that Assignment of Parking Lease filed in the Official Records of Pulaski County, Arkansas
30 (the "Filing Office ") on October 3, 2000, at Instrument Number 2000070054 (the "Block 99
31 Lease ") pursuant to which Lessor has leased to BGE up to 50 parking spaces in the lots de-
32 scribed in Exhibit A attached hereto;
33
34 WHEREAS, Lessor and BGE are parties to that certain Parking Lot Lease Agree -
35 ment (E% of Block 3 Original City), as amended, dated the 1st day of April, 1998, which
36 was assigned to BGE pursuant to that Assignment of Parking Lease filed in the Filing Of-
37 fice on October 3, 2000, at Instrument Number 2000070054 (the "E 1/2 of Block 3 Lease ")
38 and pursuant to which Lessor has leased to BGE certain parking facilities described more
39 fully in Exhibit B attached hereto;
40
41 WHEREAS, Lessor and BGE are parties to that certain Agreement to Rent Parking
42 Spaces in 2nd and Main Deck, as amended, dated the 18t day of April, 1998 which was as-
43 signed to BGE pursuant to that Assignment of Parking Lease filed in the Filing Office on
44 October 3, 2000, at Instrument Number 2000070054 (the "2nd and Main Deck Parking
45 Lease" and, together with the Block 99 Lease and the E1 /2 of Block 3 Lease, the "Parking
46 Leases ") and pursuant to which Lessor has leased to BGE 100 parking spaces in the lots
47 described more fully in Exhibit C attached hereto (collectively, the "Demised Premises ");
(Page 3 of 171
1
2 WHEREAS, the Lessor and BGE, are parties to that certain Amended, Restated,
3 and Substituted Lease and Concession Agreement dated September 18, 2000, as amended
4 by that certain First Amendment to Amended, Restated, and Substituted Lease and Con -
5 cession Agreement dated May 16, 2001 and by that certain Second Amendment to Amend -
6 ed, Restated, and Substituted Lease and Concession Agreement dated October 1, 2002 (col-
7 lectively, the "Prior Hotel Lease ");
8
9 WHEREAS, Lessee, URCO, Inc., a Tennessee corporation, and BGE are parties to
10 that certain Purchase and Sale Agreement dated 25th day of June, 2012 (the "Purchase
n Agreement "), as amended, pursuant to which Lessee will purchase the leasehold interest
12 represented by the Prior Hotel Lease from BGE;
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14 WHEREAS, in connection with the execution of the Purchase Agreement, Lessor
15 has terminated the Prior Hotel Lease and Lessor and Lessee have entered into that certain
16 Lease and Concession Agreement dated _ day of , 2013 (the "Hotel Lease ");
17
18 WHEREAS, in connection with the execution of the Purchase Agreement and the
19 Hotel Lease, BGE wishes to assign the Parking Leases, Lessee wishes to assume the Park -
20 ing Leases, and Lessor wishes to give certain assurances to Lessee with regard to BGE's
21 performance of its obligations under the Parking Leases;
22
23 WHEREAS, Lessor adopted Ordinance No. 18,286 on June 6, 2000 ( "Ordinance No.
24 18,286 "), which ordinance was recorded in the Filing Office on August 24, 2000, at Instru-
25 ment No. 2000059888, pursuant to which Lessor has granted to BGE an exclusive franchise
26 "in and to the right -of -way of Ashley Street laying between the eastern and western por-
27 tions of Block 80, Original City of Little Rock, Pulaski County, Arkansas, as configured on
28 the date of the grant of [the] franchise," (the "Ashley Street Parking Lot ") as more particu-
29 larly described in Exhibit D attached hereto, "for the exclusive use of the surface of Ashley
30 Street, including the right to control access to said street for any purpose whatsoever, sub -
31 ject to Grantor's right to access said street for police, fire and governmental purposes, and
32 the right of access as needed by any utilities for which a valid and enforceable franchise
33 with the City is in place (the "Franchise ");
34
35 WHEREAS, in connection with the assumption by the Lessor of the Lease and the
36 Parking Leases, the Lessor wishes to reaffirm and extend to Lessee the benefits granted
37 pursuant to Ordinance No. 18,286 with respect to the Franchise;
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39 NOW, THEREFORE, in consideration of the foregoing recitals and the mutual cove -
40 nants contained herein, the sufficiency of which is hereby acknowledged, the parties hereby
41 agree as follows.
42
43 Estoppel.
44 Lessor hereby represents and warrants that:
45 Lessor is the lessor under the Parking Leases, and, as of the
46 date hereof, the Parking Leases are valid and in full force and effect
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1 without modification or amendment (except as noted above) and are
2 enforceable against Lessor in accordance with their respective terms.
3 Lessor is the owner of fee simple title to the Demised Premises;
a the Parking Leases, respectively and together, embody the
5 entire agreement between Lessor and BGE with respect to the use and
6 occupancy of the Demised Premises. There are no other agreements or
7 understandings between Lessor and BGE with regard to the use or
s occupancy of the Demised Premises;
9 BGE has no monetary obligation to Lessor in respect to the use
10 and occupancy of the Demised Premises, except for the rents
11 specifically set forth in the Parking Leases. BGE is current in the
12 payment of all rentals due and payable under the Parking Leases;
13 there have been and are no defaults under the terms and
14 conditions of the Parking Leases by either Lessor or BGE and there are
15 no events which have occurred which, with the giving of notice or the
16 passage of time, or both, would constitute a default by either Lessor or
17 BGE thereunder;
18 the Demised Premises is not subject to any other lease, contract,
19 bill of assurance or other agreement that would in any way prevent or
20 restrict Lessee's full access to the Demised Premises; and
21 Lessor is the grantor of the Franchise approved pursuant to
22 Ordinance No. 18,286, the Franchise is in full force and effect and has
23 not been repealed, revoked or otherwise amended since the date of the
24 Lessor's adoption of Ordinance No. 18,286. The Lessor is the owner of
25 fee simple title to the Ashley Street Parking Lot.
26 BGE hereby represents and warrants that:
27 BGE is the lessee under the Parking Leases, and, as of the date
28 hereof, the Parking Leases are valid and in full force and effect without
29 modification or amendment (except as noted above) and are
30 enforceable against Lessee in accordance with their respective terms;
31 the Parking Leases, respectively and together, embody the
32 entire agreement between Lessor and BGE with respect to the use and
33 occupancy of the Demised Premises. There are no other agreements or
34 understandings between Lessor and BGE with regard to the use or
35 occupancy of the Demised Premises;
36 BGE has no monetary obligation to Lessor in respect to the use
37 and occupancy of the Demised Premises, except for the rents
[Page 5 of 171
i specifically set forth in the Parking Leases. BGE is current in the
2 payment of all rentals due and payable under the Parking Leases;
3 there have been and are no defaults under the terms and
4 conditions of the Parking Leases by either Lessor or BGE and there are
5 no events which have occurred which, with the giving of notice or the
6 passage of time, or both, would constitute a default by either Lessor or
7 BGE thereunder; and
8 BGE is the grantee of the Franchise and has fully complied with
9 and is not in default of, its obligations thereunder, nor has BGE
10 received notice of the existence of a default under the Franchise or of
11 Lessor's intention to revoke, repeal or otherwise modify the terms of
12 Ordinance No. 18,286.
13 Assignment and Assumption.
14 BGE hereby assigns all of its right, title and interest in and
15 to the Parking Leases to Lessee and Lessee hereby assumes such right,
16 title and interest to the Parking Leases and agrees to be bound by all
17 the terms and conditions of the Parking Leases.
18 Lessor hereby consents to such assignment and hereby
19 releases BGE from all obligations under the Parking Leases.
20 Amendment of Lease. The provisions of each Parking Lease are hereby
21 amended and superseded to the extent of any conflict therewith, as follows:
22 A. CANCELLATION. "In addition to any other right to cancel
23 the Parking Leases, Lessee shall have the right to cancel a
24 Parking Lease or any of the Parking Leases, immediately upon
25 the delivery of written notice to the Lessor in the event of the
26 termination for any reason of that certain Lease and
27 Concession Agreement dated _ day of , 2013,
28 as amended (the "Hotel Lease ") to which Lessee is a party."
29 RENEWAL.
30 "So long as the Lessee is not in default under the terms of the Parking
31 Leases, or any one of the Parking Leases, Lessor grants to Lessee the right,
32 privilege and option to extend the Parking Leases in successive periods of
33 three (3) years each for so long as the Lessee is a party to the Hotel Lease,
34 upon and subject to the terms, provisions and conditions of this Agreement."
35 USE, ALTERATIONS AND TITLE TO IMPROVEMENTS. The
36 words "Excelsior Hotel' shall be deleted and replaced with the word
(Page 6 of 171
1 "Marriott or other full- service hotel described in the Hotel Lease,"
2 wherever such term shall appear in any of the Parking Leases.
3 ASSIGNMENT. "The Parking Leases shall be assignable by the
a Lessee without the consent of the Lessor to any assignee or other
s successor in interest of the Lessee with respect to the Hotel Lease."
6 Reaffirmation and Extension of Franchise. Lessor, as grantor of the
7 Franchise pursuant to Ordinance No. 18,286, hereby reaffirms the grant of and
s extends to Lessee the exclusive Franchise, and further agrees as requested by
9 Lessee, to adopt such amendatory Ordinance or Ordinances confirming such
10 reaffirmation and extension for the benefit of Lessee, which Ordinance shall be in
11 substantially the form of Exhibit "A" attached hereto and made a part hereof. In
12 addition, Lessor hereby further agrees as follows:
13 A. the Franchise shall expire on the date the Hotel Lease terminates as
14 provided therein;
15 B. this Agreement, and any ordinance amending Ordinance No. 18,286, shall
16 benefit and extend in favor of Lessee, and its successors and assigns, in
17 accordance with the terms and provisions of the Hotel Lease; and
18 C. notwithstanding the foregoing provisions, the Board of Directors of the
19 Lessor reserves to itself the right to exercise any and all legislative authority
20 with respect to Ordinance No. 18,286 and any ordinances amendatory
21 thereto.
22 Miscellaneous. The provisions of this Agreement may not be modified or
23 terminated orally, and shall be binding upon and inure to the benefit of the parties
24 hereto and their respective successors and assigns, including any subsequent owner
25 of the Demised Premises. The provisions of this Agreement shall run with the land.
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1 Governing Law. This Agreement shall be construed, interpreted, enforced
2 and governed by and in accordance with the laws of the State of Arkansas.
3 Execution in Counterparts. This Agreement may be executed in any
4 number of counterparts and by different parties hereto in separate counterparts,
5 each of which when so executed and delivered shall be deemed to be an original and
6 all of which counterparts taken together shall constitute but one and the same
7 instrument.
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[SIGNATURE PAGE TO FOLLOW]
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[COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND
FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENT AND REAFFIRMATION AND EX-
TENSION OF ASHLEY STREET PARKING FRANCHISE]
IN WITNESS HEREOF, the parties execute this Agreement as of the date first above
written.
BG EXCELSIOR
LIMITED PARTNERSHIP
By: BEX, INC., its general partner
By:
Name:
Title:
ACKNOWLEDGEMENT
STATE OF
COUNTY OF
Before me, the undersigned, a Notary Public, duly commissioned, qualified
and acting within and for said County and State, appeared in person the within
named , to me personally known, who
stated that he was the of BEX, Inc., the general partner of BG
Excelsior Limited Partnership, a Tennessee limited partnership, and is duly author-
ized in his capacity to execute the foregoing instrument for and in the name and be-
half of said limited partnership; and he further stated and acknowledged that he
had so signed, executed and delivered the foregoing instrument for the considera-
tion, uses and purposes therein mentioned and set forth.
WITNESS my hand and official seal, this the day of
, 2013.
Notary Public
[Page 9 of 171
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My commission expires:
[COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND
FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENT AND REAFFIRMATION AND EX-
TENSION OF ASHLEY STREET PARKING FRANCHISE]
IN WITNESS HEREOF, the parties execute this Agreement as of the date first
above written.
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25 STATE OF
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27 COUNTY OF
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FWH II LITTLE ROCK, LLC
By: Fairwood Hospitality Investors II, L.L.C.,
its member
By: Fairwood Investors, LLC, its Manager
By:
Name:
Title:
ACKNOWLEDGEMENT
Before me, the undersigned, a Notary Public, duly commissioned, qualified and acting
within and for said County and State, appeared in person the within named
, to me personally known, who stated that he was
the of Fairwood Investors, LLC, a Delaware limited liability company
and the manager of Fairwood Hospitality Investors II, L.L.C., a Delaware limited liability
company and the sole member of FWH II Little Rock, LLC, a Delaware limited liability
company, and is duly authorized in his capacity to execute the foregoing instrument for and
in the name and behalf of said limited liability company; and he further stated and
acknowledged that he had so signed, executed and delivered the foregoing instrument for
the consideration, uses and purposes therein mentioned and set forth.
WITNESS my hand and official seal, this the day of
.2013.
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Notary Public
[COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND
FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENT AND REAFFIRMATION AND EX-
TENSION OF ASHLEY STREET PARKING FRANCHISE]
IN WITNESS HEREOF, the parties execute this Agreement as of the date first
above written.
CITY OF LITTLE ROCK
By: _
Name:
Title:
ACKNOWLEDGEMENT
STATE OF
COUNTY OF
Before me, the undersigned, a Notary Public, duly commissioned, qualified
and acting within and for said County and State, appeared in person the within
named to me personally known, who
stated that he was the of , a
corporation, and is duly authorized in his capacity to ex-
ecute the foregoing instrument for and in the name and behalf of said corporation;
and he further stated and acknowledged that he had so signed, executed and deliv-
ered the foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
WITNESS my hand and official seal, this the day of
, 2013.
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Notary Public
My commission expires:
[COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND
FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENT AND REAFFIRMATION AND EX-
TENSION OF ASHLEY STREET PARKING FRANCHISE]
IN WITNESS HEREOF, the parties execute this Agreement as of the date first
above written.
EXECUTED FOR CERTAIN PURPOSES AS AGENT:
LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION
I:
WARREN SIMPSON, CHAIRMAN
ACKNOWLEDGEMENT
STATE OF
COUNTY OF
Before me, the undersigned, a Notary Public, duly commissioned, qualified
and acting within and for said County and State, appeared in person the within
named to me personally known, who
stated that he was the of a
corporation, and is duly authorized in his capacity to ex-
ecute the foregoing instrument for and in the name and behalf of said corporation;
and he further stated and acknowledged that he had so signed, executed and deliv-
ered the foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
[Page 12 of 17]
I WITNESS my hand and official seal, this the day of
2 .2013.
a Notary Public
s My commission expires:
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EXHIBIT A
Lots 7, 8 and 9 inclusive, Block 99, Original City of Little Rock, Pulaski County, Arkansas,
and Lots 1 through 12 inclusive, Block 100, Original City of Little Rock Pulaski County,
Arkansas, and the east -west Alleys located within Blocks 99 and 100, Original City of Little
Rock, Pulaski County, Arkansas, and Spring Street between the north right -of -way of
Markham Street extended and the south right -of -way line of Garland Street extended, all
as provided on the plat for Original City of Little Rock as recorded in Pulaski County rec-
ords in Book "L" at Pages 330 and 331 and as vacated by Ordinance No. 12,471, recorded
April 21, 1971 in Book 1143, Page 403.
Lots 4, 5 and 6 inclusive, Block 99, Original City of Little Rock, Pulaski County, Arkansas.
(Now known as Vinson Plaza.)
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1 EXHIBIT B
z Lots 1 through 6 inclusive, Block 3, Original City of Little Rock, Pulaski County, Arkansas,
3 and the west half of an alley located in Block 3 lying easterly of Lots 1 through 6 inclusive,
a now closed by Ordinance No. 12,163, of record in Book 1057, Page 403, records of Pulaski
5 County, Arkansas.
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1 EXHIBIT C
2
3 Lots 7 through 12 inclusive, Block 3, Original City of Little Rock, Pulaski County,
4 Arkansas, and the east half of an alley located in Block 3 lying westerly of Lots 7 through
5 12 inclusive, now closed by Ordinance No. 12,163, of record in Book 1057, Page 403, records
6 of Pulaski County, Arkansas. Less and except a strip conveyed to the City of Little Rock,
7 for the purpose of a public street and the installation and maintenance of public utilities
s and other public purposes, described as: a tract of land being a part of Block 3, Original
9 City of Little Rock, Arkansas, being more particularly described as follows: Beginning at a
10 found %2 -inch rebar at the Southeast corner of said Block 3; thence North 80 degrees 26
11 minutes 19 seconds West along the north right -of -way line of East 3rd Street, 22.68 feet;
12 thence along a curve to the left having a twenty (20) -foot radius and a chord bearing and
13 distance of North 54 degrees 35 minutes 20 East, 28.27 feet for a distance of 31.4 feet;
14 thence North 9 degrees 37 minutes 00 seconds East, 261.33 feet to a tangent curve to the
15 left; thence along said curve to the left having a radius of 20.00 feet, and a chord bearing
16 and distance of North 35 degrees 16 minutes 17 seconds West for a distance of 28.23 feet to
17 the South right -of -way line of East 2nd street; thence South 80 degrees 09 minutes 34 se-
18 conds East, along said South right -of -way line, 22.62 feet to a found "X" at the Northeast
19 corner of said Block 3; thence South 9 degrees 37 minutes 00 seconds West, along the East
20 line of said Block 3, for a distance of 301.22 feet to the Point of Beginning.
21
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I EXHIBIT D
2
3 A tract of land located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North,
4 Range 12 West, Pulaski County, Arkansas, said tract being West of Fractional Block 80,
5 Original City of Little Rock, Pulaski County, Arkansas, and being more particularly
6 described as follows:
8 Beginning at a found % -inch rebar at the intersection of the north right -of -way line of west
9 Markham Street and the east right -of -way line of Ashley Street, said point being 2.00 feet
10 North 89 degrees 40 minutes 23 seconds West, of the Original Southwest corner of said
11 Fractional Block 80; thence North 00 degrees 12 minutes 36 seconds East, 300.05 feet along
12 said east right -of -way line of Ashley Street to a found "X" in concrete being the intersection
13 of the east right -of -way line of Ashley Street and the south right -of -way line of La Harpe
14 Boulevard; thence North 89 degrees 18 minutes 24 seconds West, 57.73 feet along said
15 south right -of -way line of La Harpe Boulevard to a found "X" on a concrete retaining wall
16 being the intersection of the south right -of -way line of La Harpe Boulevard and the west
17 right -of -way line of Ashley Street; thence South 00 degrees 12 minutes 36 seconds West,
18 300.42 feet along said west right -of -way line of Ashley Street to the point of intersection of
19 said west right -of -way line of Ashley Street and the North right -of -way line of West
20 Markham Street; thence South 89 degrees 40minutes 23 seconds East, 57.73 feet along said
21 north right -of -way line of West Markham Street to the Point of Beginning.
22
23 The east twelve (12) inches of the right -of -way of Ashley Street between Markham Street
24 and LaHarpe Boulevard in the City of Little Rock, Pulaski County, Arkansas, as vacated by
25 Ordinance No. 13,846 recorded August 19, 1980, as Instrument No. 80 -35197 and the west
26 twelve (12) inches of the east twenty -four (24) inches of the right -of -way of Ashley Street
27 between Markham Street and LaHarpe Boulevard as vacated by Ordinance No. 14,428
28 recorded April 8, 1983, as Instrument No. 83- 16677.
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