HomeMy WebLinkAboutS-1393-B ApplicationThis Instrument Prepared by:
Price C. Gardner
FRIDAY, ELDREDGE & CLARK, LLP
400 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201
2004087093
18/220/2884 11:88:51 AM
Filed & Recorded in
Official Records of
CAROLYN STALEY
PULASKI COUNTY
CIRCUIT/COUNTY CLERK
Fees $47.88
DECLARATION OF RESTRICTIONS AND COVENANTS,
GRANT OF EASEMENTS AND DEDICATION OF ROADWAY
THIS DECLARATION OF RESTRICTIONS AND COVENANTS (this "Declaration") is made as of
the 14 day of aGTmz�e. , 2004 by HIGHWAY 5/OTTER CREEK INVESTMENTS, LLC, an
Arkansas limited liability company ("I-430 Investments" or "Grantor").
RECITALS
WHEREAS, the Grantor has caused the lands described on Exhibit A-1 attached hereto (the
"Property") to be surveyed by White-Daters, Inc., and a preliminary plat made thereof, identified by the title
"Otter Creek Plaza Addition, Little Rock, Arkansas." The preliminary plat bears the signatures and seals of
Paul M. White and Timothy E. Daters (the "Plat"), a copy of which is attached hereto as Exhibit A-2 and
made a part hereof.
WHEREAS, this Declaration is made with respect to the real property designated and shown as
proposed Lots 1, 2, 3 and 4 on the Plat, which real property is hereinafter referred separately as a "Lot",
specifically by Lot number, i.e., "Lot 2" and collectively as the "Lots", and the legal description of which is
contained on Exhibit "B" attached hereto and by reference incorporated herein; and
WHEREAS, the Grantor is the Fee Owner of the Lots; and
WHEREAS, the Grantor desires to file this Declaration to protect its interest and the interests of
others which may in the future become fee owners (a "Fee Owner") of one or more of the Lots shown on the
Plat. Grantor and those future Fee Owners may be hereinafter collectively referred to as "Parties" or
singularly as a "Party"; and
WHEREAS, the Grantor hereby establishes, to the fullest extent permitted by law, certain covenants,
restrictions, easements and charges (collectively, the 'Restrictions") as are hereinafter set forth, subject to
which all of Lots and every portion thereof, shall be improved, held, exchanged, leased, sold and/or conveyed.
NOW, THEREFORE, in consideration of the foregoing, and the covenants and agrga 6I�teprth
herein, the Grantor agrees as follows:+%.,
ti` �:
Design and Construction of Buildings. The Architectural Committee must approve all initial
construction on each Lot, including architectural theme, design, color, access and parking. All exterior
construction facing Arkansas State Highway #5 or Otter Creek Road must be brick, stucco (real or synthetic)
or another approved masonry facade, excluding concrete block (but not excluding split -faced concrete block),
and using colors approved by the Architectural Committee. If following initial construction of buildings on a
Lot, the existing exterior of any then existing building is substantially remodeled or there is a rebuilding
following a casualty, then unless the remodeling or reconstruction is substantially similar to the prior existing
exteriors, the architectural theme, design, color, materials, access and parking must be approved by the
Architectural Committee. Once initiated, all building construction must be diligently prosecuted to
completion. Any rooftop equipment shall be appropriately screened. All trash collection or dumpster areas
shall be contained in an enclosure constructed of materials substantially similar to the existing exterior of the
building constructed on such Lot and in a manner consistent with the architectural theme, design and color of
the building. For so long as the Grantor owns any Lot, the Architectural Committee shall consist of Grantor.
If Grantor ceases to own any Lot, the Architectural Committee shall continue to consist of Grantor until the
Lot Owners agree on one to four persons to serve as the Architectural Committee. Approvals hereunder shall
not be unreasonably withheld, delayed or charged for. Any submission to the Architectural Committee shall
be deemed approved thirty (30) days after submission unless the Architectural Committee denies such
approval in writing within such thirty (30) day period.
2. Business. The types of uses permitted in Lots shall be of a commercial nature found in
upscale commercial developments in Little Rock, Arkansas consistent with the zoning covering the Lots and
not otherwise prohibited herein or by law or otherwise. Nothing contained herein shall be construed to
require any Owner to open or operate any form of business on any Lot for any period of time or at all. The
uses prohibited on the Lots are:
(a) Undesirable entertainment or recreational facilities. As used herein, "undesirable
entertainment or recreational facility" includes, a skating rink, massage parlor, discotheque, dance hall, teen
club, night club, bar or tavern, flea market, head shop, pornographic or "adult" store, bowling alley, or tattoo
or body piercing parlor or establishment.
(b) Any use which creates a nuisance or materially increases noise or the emission of
dust, odor (but not including restaurants which are otherwise Permitted), smoke, gases, does not preserve the
"sprinkler" fire insurance rates, or increases explosion or radioactive hazards on adjacent Lots.
(c) Manufacturing, distilling, refining, smelting, agriculture, or moving operation;
2
(d) Any mobile home or trailer court, labor camp, junk yard, stock yard, animal raising
or veterinary hospital, except the temporary use of construction trailers during the period of construction,
reconstruction or maintenance shall also be permitted;
(e) Any drilling for, in or removal of subsurface substances;
(f) Any dumping, disposing, incinerating or reduction of garbage or refuse (exclusive of
garbage compactors located in the rear of any building);
(g) Any fire sale, going out of business sale, bankruptcy sale (unless pursuant to a court
order) or auction hours operation;
(h) Any outdoor circuses, outdoor public meetings, or commercial laundry plants;
(i) Any "second hand" store, Army, Navy or government "surplus" store, except for
upscale -type stores; and
0) Any pawnshop, a business whose primary activity is check cashing, paycheck loan
operation, or the like.
The restrictions imposed under this Paragraph 2 shall be a servitude upon the Lots and shall be
binding upon any person acquiring an interest in any part of the Lots, whether in fee, by lease or otherwise.
The restrictions contained in this Paragraph 2 may not be amended except with the unanimous written consent
of the Owners of each Lot.
3. Dedication of Public Right -of Way. Grantor hereby dedicates to the public forever an
easement and right of way on and over that portion of Otter Creek Road along Lots 1, 2 and 3 as shown on
said Plat, to be used as public street.
4. Additional Restriction on Use. For so long as Lot 1 is used as a retail branch bank or
financial institution, no other Lot located on the Plat (or any portion thereof if further subdivided) shall be
used as a bank branch or financial institution.
5. Compliance with Governmental Restrictions. The construction of any buildings or
improvements on any Lot shall comply with and be subject to all building codes, zoning ordinances and
restrictions imposed by the City of Little Rock, Arkansas Highway and Transportation Department and any
other federal, state, county or local authority and any restrictions having jurisdiction over the Property.
6. Enforcement of Obligations. In the event legal proceedings are brought or commenced to
enforce any of the terms of this Declaration against any owner or other person with an interest in a Lot, the
successful party in such action shall be entitled to receive and shall receive from the defaulting Owner any
and all damages permitted by law, plus a reasonable sum as attorneys, fees and costs, to be fixed by the court
in the same action. Each Owner of a Lot shall have the right to enforce the respective duties and obligations
of the parties hereunder.
7. Duration. Unless otherwise canceled or terminated, all of the easements granted in this
Declaration shall continue in perpetuity and all other rights and obligations hereof shall automatically
terminate and be of no further force and effect ninety-nine (99) years after the date of filing hereof.
8. Modifications. All negotiations and oral agreements acceptable to the Grantor have been
incorporated herein. Except as otherwise provided herein, this Declaration may not be modified in any
respect whatsoever or rescinded, in whole or in part, except by a writing executed by the Grantor and then
current Owners of the Lots.
9. Miscellaneous.
(a) Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of any Lot to the general public or for any public purposes whatsoever, it being the
intention of the Grantor and the Owners that this Declaration shall be strictly limited to and for the purposes
herein expressed.
(b) Severability. If any term or provision of this Declaration or the application of it to
any person or circumstance shall to any extent be invalid and unenforceable, the remainder of this Declaration
or the application of such term or provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term and provision of this Declaration shall
be valid and shall be enforced to the extent permitted by law.
(c) Governing Law. This Declaration shall be construed and enforced in accordance
with, and governed by, the law of the State of Arkansas.
(d) No Presumption. This Declaration shall be interpreted and construed only by the
contents hereof and there shall be no presumption or standard of construction in favor of or against any
Owner.
(e) Inurement. This Declaration and the easements, covenants, benefits and obligations
created hereby shall inure to the benefit and be binding upon each owner, and their respective successors and
assigns.
(f) Other A reements. Nothing herein shall restrict an Owner from imposing upon a
tenant of such Owner's Lot more restrictions and/or higher standards than set forth herein.
(g) Subdivision and Zoning Ordinances. Notwithstanding any provision hereof to the
contrary, any lawful restrictions imposed by the City of Little Rock which is more restrictive on use than the
provisions hereof shall be applicable and shall supersede the provisions hereof.
(h) Entire Agreement. This Declaration constitutes the entire agreement regarding this
subject matter between the Parties hereto. The Parties do not rely on any statement, promise or representation
4
not herein expressed, and this Declaration, once executed, delivered and filed, shall not be modified or altered
in any respect except as provided herein.
(i) No Third Party Beneficiaries. No party, other than the Grantor and the Owners of the
Lots and their respective successors and assigns shall have any rights or benefits of this Declaration.
IN WITNESS WHEREOF, this Declaration has been executed as of the date first above written.
Revievied only fcr inclusicn of ririmr!m standard:
require by the City of VtUe Rock subdivisica rcguladona.
Bill of Assurance provisions cc blished by t
develcper may exceed :m.um rcrma, tions cf t`;c
Urde Rock subdivision and zoning crdinar.=.
ro �
of Little Rock Planning Commission
HIGHWAY 5/07TER CREEK INVESTMENTS, LLC
By: GAB, LLC, a anager
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ACKNOWLEDGMENT
STATE OF ARKANSAS )
) ss.
COUNTY OF PULASKI
On this day, before me, a Nota Public, duly commissioned, alified and acting, within and for said
County and State, appeared in perso the within named , to me personally well known, who
stated that he was the of GAB, LLC, the manager of HIGHWAY 5/OTTER CREEK
INVESTMENTS, LLC, an Arkansas limited liability company, and that he was duly authorized in his
capacity to execute the foregoing instrument for and in the name and behalf of said limited liability company,
and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument
for the consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 07 day of
aoi&j 52004.
OFFICIAL SEAL
SHARON A. MILLER
Notary Public - Arkansas
Pulaski County
- ;2o - ao 1�3
Notary Public
JOINDER AND ACKNOWLEDGMENT BY MORTGAGEE
The undersigned, One Bank & Trust, holds a mortgage in the property described in Exhibit
"A-1" of this Agreement. The undersigned hereby joins in the execution of the Agreement for the
following purposes only:
1. CONSENT. To grant consent to the execution of this Agreement by the owner of the
property.
2. ACKNOWLEDGMENT OF AGREEMENT. To subject any and all security interests it
has in the property to the provisions of this Agreement solely to the extent that, if
title to the property is acquired through sale under foreclosure or by deed in lieu of
foreclosure or otherwise, such title shall be subject to the charges and burdens
affecting the property by virtue of this Agreement.
ONE BANK & TRUST:
By:
Title: Yi
Date: fd�lo
ACKNOWLEDGMENT
STATE OF ARKANSAS )
) ss.
COUNTY OF PULASKI )
On this day, before me, a Notary Public, duly co ssio qualified and acting, within and for said
County and State, appeared in per n the within namedii 6 , to me personally well
known, who stated that he was the of One Bank & Trust, and that he was duly authorized in
his capacity to execute the foregoing instrument for and in the name and behalf of said bank and further stated
and acknowledged that he had so signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of
OFFICIAL SEA
SHARON A. I ILLER
Notary Pub'•+ic - Arkansas Not Public
My 12gt=J,,js@000Jres:
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EXHIBIT A-1
A tract of land situated in the South 1/2 of Section 5, Township 1 South, Range 13
West, City of Little Rock, Pulaski County, Arkansas, being more particularly
described as follows:
Commencing at a fence comer being the Southeast corner of said SEU4 SWl/4;
thence North 88 degrees 31 minutes 56 seconds West along the South line of said
Section 5 for a distance of 94.08 feet; thence North 01 degree 28 minutes 04 seconds
East 142.83 feet to a 1/2 inch rebar and the point of beginning on the North right of
way of Otter Creek Road as shown on AHTD Job 605 l3; thence South 89 degrees
10 minutes 17 seconds West along said right of way 375.27 feet to a sixty penny
nail; theae North 88 degrees 48 minutes 39 seconds West along said right of way
74.64 feet to a 1/2 inch rebar and the East right of way of State Highway 5 as shown
on AHTDJob 060446; thence along said East right of way Highway 5 the following
courses and distances: North 49 degrees 24 minutes 22 seconds West 23.33 feet to a
1/2 inchrdbar; thence North 04 degrees 32 minutes 25 seconds West 71.44 feet to a
112 inch rebar, thence North 10 degrees 28 minutes 27 seconds East 195.54 feet to a
1/2 inch rebar, thence North 15 degrees 34 minutes 46 seconds East 237.87 feet to a
1/2 inch rebar and the Southwest property comer of Southwestern Bell; thence
leaving last said right of way South 88 degrees 41 minutes 26 seconds East along the
South property line of Southwestern Bell 565.76 feet to a found 3/8 inch rebar and
the West i1ina. of Arkansas Game & Fish Foundation property; thence leaving
Southwestern Bell South property line South 00 degrees 02 minutes 48 seconds East
along the Nest line of Arkansas Game & Fish Foundation 488.32 feet to a 1/2 inch
rebar and 1he North right of way line of Otter Creek Road; thence South 89 degrees
09 minutes 29 seconds West along last said right of way 167.25 feet to a nail in
bottle cap; thence South 89 degrees 17 minutes 23 seconds West along said right of
way 24.98, feet to a 1/2 inch rebar and the point of beginning.
EXHIBIT A-2 - PROPOSED PLAT
A TRACT OF LAND SITUATED IN THE S1/2 OF SECTION 5, T-1—S, R-13—W,
CITY OF LITTLE ROCK, PULASKI COUNTY, ARKANSAS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A FENCE CORNER BEING THE SOUTHEAST CORNER OF SAID
SE1/4 SW1/4; THENCE N88'31'56"W ALONG THE SOUTH LINE OF SAID SECTION 5,
FOR A DISTANCE OF 94.08 FT-; THENCE N01'28'04"E, 142.83 FT. TO A POINT ON THE
NORTH RIGHT—OF—WAY LINE OF OTTER CREEK ROAD AS SHOWN ON AHTD JOB 60513;
THENCE S89'10'09"W ALONG SAID NORTH RIGHT—OF—WAY LINE 209.17 FT. TO
THE POINT OF BEGINNING; THENCE S89'10'09"W CONTINUING ALONG
SAID NORTH RIGHT—OF—WAY LINE, 166.09 FT.; THENCE N88'48'44"W
CONTINUING ALONG SAID NORTH RIGHT—OF—WAY LINE, 74.64 FT.; THENCE
N49'18'20"W CONTINUING ALONG SAID NORTH RIGHT—OF—WAY LINE, 23.33 FT.
TO A POINT ON THE EAST RIGHT—OF—WAY LINE OF ARKANSAS STATE HWY. # 5
(STAGECOACH ROAD); THENCE N04'31'40"W ALONG SAID EAST RIGHT—OF—WAY
LINE, 71.44 FT.; THENCE N1925'29"E CONTINUING ALONG SAID EAST RIGHT--
OF—WAY LINE, 195.59 FT.; THENCE S8921'53" E, 153.40 FT.; THENCE
SOUTHEASTERLY ALONG THE ARC OF A 200.00 FT. RADIUS CURVE TO THE
LEFT, A CHORD BEARING AND DISTANCE OF S8535'30"E, 36.44 FT.; THENCE
N89'10'53"E, 37.45 FT.; THENCE S00'49'43"E, 250.02 FT. TO THE POINT
OF BEGINNING, CONTAINING 65,343 SQ. FT. OR 1.5001 ACRES MORE OR LESS.
LOT 2, (UNRECORDED) OTTER CREEK PLAZA
A TRACT OF LAND SITUATED IN THE S1 2 OF SECTION 5, T-1-S, R-13-W,
CITY OF LTM E ROCK. PULASKI COUNTY.ARKANSAS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A FENCE CORNER 8EINC THE SOUTHEAST CORNER OF SAID
SEI/4 SW1/4; THENCE NW31-56-W ALONG THE SOUTH LINE OF SAID SECTION S.
FOR A OISTANCE OF 94.08 FT.; THENCE NO1'28'04"E. 142.83 FT, TO A POINT ON 111E
NORTH RIGHT-OF-WAY UNE OF OTTER CREEK ROAD AS SHOWN ON AHTD J08 60513:
THENCE SB71D'O9'W ALONG SAID NORTH R1GHT-OF-WAY LINE 37.77 FT. TO
THE POINT OF BEGINNING; THENCE $89'1O'O9"W CONTINUING ALONG
SAID NORTH RIGHT-OF-WAY LINE, 171.44 FT.; THENCE NOO'49'43"W, 250.02 FT.;
THENCE N89'11'+J E, 174.82 FT.; THENCE SOO'03'13'E, 249.92 FT, TO THE
POINT OF BEGINNING, CONTAINING 43,279 SO. FT. OR 0.9935 ACRES MORE OR LESS.
LOT 3, OTTER CREEK PLAZA
A TRACT OF LAND SITl1ATEO IN THE S1/2 OF SECTION 5, T-1-S, R-13-W,
CITY OF LITTLE ROCK, PULASKI COUNTY, ARKANSAS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A FENCE CORNER BEING THE SOUTHEAST CORNER OF SAID
SE1/4 SW1/4; THENCE N8631-56-W ALONG THE SOUTH LINE OF SAID SECTION 5,
FOR A DISTANCE OF 94.08 FT.: THENCE N01'28'04"E, 142.83 FT. TO A POINT ON THE
NORTH RIGHT -OF --WAY LINE OF OTTER CREEK ROAD AS SHOWN ON AHTD JOB 60513
AND THE POINT OF BEGINNING;
THENCE S89'1O'09"W ALONG SAID NORTH RIGHT-OF-WAY LINE, 37.77 FT.;
THENCE N04703'13"W, 249.92 FT.; THENCE N89'09'53"E, 230.02 FT.
THENCE S00'03'13"E, 250.00 FT. TO A POINT ON THE SAID NORTH RIGHT-OF-
WAY LINE OF OTTER CREEK ROAD; THENCE 58910' i GW ALONG SAID RIGHT-
OF-WAY LINE, 167.26 FT.; THENCE S89'17'15"W CONTINUING ALONG SAID NORTH
RIGHT-OF-WAY LINE, 24.98 FT. TO THE POINT OF BEGINNING, CONTAINING 57,497
S0. FT. OR 1.3198 ACRES MORE OR LESS.
LOT 4 (UNRECORDED) OTTER CREEK PLAZA
A TRACT OF LAND SITUATED IN THE S1/2 OF SECTION 5; T-1-S, 11=13-W,
CITY OF LITTLE ROCK, PULASKI COUNTY. ARKANSAS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A FENCE CORNER SONG THE SOUTWA5T CORNER OF SAID
SE1/4 SW1/4; THENCE N88'31'56"W ALONG THE SOUTH LINE OF SAID SECTSON 5,
FOR A DISTANCE OF 94.08 FT.; THENCE H01'28'04'E, 142.83 FT. TO A POINT ON THE
NORTH RIGHT-OF-WAY UNE OF OTTER CREEK RCNU AS SHOWN (IN 'AHTD JOB 6D513;
THENCE S83'SO,OgrW ALONG s?m NORTH RIGHT -OF --WAY UNE 375.26 FT.; THENCE
74.64 FT
N49'1 B'20"W CONTINUING ALONG SAID NORTH R GHT-OF-WAY LINE, 23.33 FT-' THENCE
TO A POINT ON THE EAST RIGHT-OF-WAY LINE OF ARKANSAS STATE HWY. 1 5
(STAGECOACH ROAR); THENCE NOd3114TW ALONG SWD EAST RlOr-OF-WAY
UNE. 71.44 FT.; FENCE N10'25'29 E CONTINUING ALONG 5A bI --EAST RIGHT--
OF-WAY UNE. 195.59 FT. TO THE POINT OF BEGINNING;
THENCE 1,11535-51% CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE,
238.00 FT.; THENCE S88'40'45'E, 565.76 FT.; THENCE S00CYIS'E,
238.32 FT.; THENCE S81709'551W, 230.02 FT.; THENCE S871 VWW.
174.82 FT.: _}HENCE S89'10'53'W, 37,45 FT.; THENCE WESTERLY ALONG THE
ARC OF A 200.00 FT. RADIUS CURVE TO THE RIGHT, A CHORD BEARING AND
DISTANCE OF N8535'30"Vl, 36.44 FT.; THENCE NBO'21'53•W, 153.40 FT. TO THE
POINT OF BEOINNINC, CONTAINING 147,469 SR. FT, OR 3.3854 ACRES MORE OR LUSS.
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Chile Rock, Arkansas 722�1-13��
37i-4811 Fax 371-4460
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CIVIL ENGINEERING RESPONSE
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THE CIVIL ENGINEEK3NG RF QLUREMENTS FOR FILING OF FINAL FLATS
HAVE BEEN SATISFIED_ APPC� FOR FILING�� HIS PLAT CAN 3
BE ISSUED
SIGNED BY ENGINEER
SIGNED BY SURR
SIGNED BY 91 I ADDRESS CQORDZNATGR
DXF. DISKETTE PLAT
DXF. DISKETTE STORM DRAilW'x-&v
REMARKS
b
Division
City of Little Rock
Planning and Development
Filing Fees
Date , 2Q
Annexation
Board of Adjustment
Cond Use Permit/T U P
Final Plat
Planned Unit Dev
Preliminary Plat
Special Use Permit
Rezoning
Site Plans
Street Name Change
Street Name Signs
Number at
Public Hearing Signs
Number at ea
Total
File No
Location,.,,
ea
lX&a k"cl
City of Little Rock
Planning and Development
Filing Fees
Date: 1 0 1 1� , 20Q((
Annexation
Board of Adjustment
Cond. Use Permit/T.U.P
Final Plat
Planned Unit Dev.
Preliminary Plat
Special Use Permit
Rezoning
Site Plans
Street Name Change
Street Name Signs
Number - - at
Public Hearing Signs
Number at ea.
Total
ea.
File No.�
Location
Applicant
1
By.---- ---�