DECLARATION OF COVENANTS, CONDITIONS,
of Covenants, Conditions, and Restrictions (this “Declaration”) is made as of
the _____ day of _________, 2008, by Kaplan Acquisitions, ____, a
WHEREAS, the Property is zoned MF-4-CO-NP;
WHEREAS, Declarant currently intends to purchase the Property and develop a new multifamily project (the “Project”) thereon, and is seeking MF-6-CO-NP zoning from the City of Austin for such development pursuant to City of Austin Zoning Case No. C C14-2007-0202 (the “Zoning Case”);
WHEREAS, Declarant is seeking certain compatibility variances for the Project pursuant to Board of Adjustment Case No. C-15-2007-0127 (the “Variance Case”) (collectively, with the Zoning Case, the “City Applications”);
WHEREAS, in consideration of support for the Zoning Case by the South River City Citizens Neighborhood Association (“SRCC”), and subject to all of the terms and conditions of this Declaration, Declarant has agreed to establish certain restrictive covenants, which are described herein, in connection with the development of the Property.
NOW, THEREFORE, for and in consideration of SRCC’s support before the City of Austin’s boards, commissions, and the City Council of the City Applications, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all of the terms and conditions of this Declaration, the undersigned agrees to hold, sell and convey the Property subject to the following covenants, conditions, and restrictions, which are impressed upon the Property by this Declaration.
Elements. The Project shall be constructed
using green-colored rooftops similar to those used as of the date of this
Declaration at the
1.2 Affordable Housing.
(a) Affordable Units. Subject to adjustment as provided in subpart (b) below, if Declarant constructs the Project, Declarant will negotiate restrictive covenants with the City providing that for a period of forty (40) years the owner of the Property shall make ten percent (10%) of the total units in the Project available to persons whose income is no more than sixty percent (60%) of the median family income (“MFI”) for the City of Austin, as adjusted for family size, as MFI is published from time to time by the US Secretary of Housing and Urban Development.
(b) Additional Affordable Units. Declarant will use reasonable
and affirmative steps to work with the City of
(c) Letter to Residents. Declarant will honor the terms of the Agreement, dated ______________, 2008, with Sunnymeade residents, a copy of which letter is attached hereto as Exhibit “A”.
(d) Housing Vouchers. Declarant agrees that it will participate in the Section 8 housing voucher program with respect to the affordable units to be constructed in the Project.
1.3 Stormwater Detention. If allowed by the City of
(a) Flood Detention. The flood detention facilities for the Project will detain all design storm runoff (2-100 year events) to pre-developed conditions or to the capacity of the existing downstream drainage system, whichever is less. To estimate site runoff, the pre-developed hydrologic conditions are defined as follows:
(b) Proposed Site Discharges. The
stormwater discharges under each simulated design storm event will not exceed
the flows estimated for the pre-developed site as defined above. In addition,
the proposed site discharges will not exceed the existing capacity of the City
(c) Verify No Adverse Downstream Impacts. The proposed on site and off site stormwater controls will be modeled to simulate proposed condition discharges and their impacts on the City of Austin’s storm drain system, including the receiving waters of Blunn Creek. Declarant will use the City of Austin’s hydrologic and hydraulic watershed model of Blunn Creek. Declarant will deliver a copy of its stormwater control analysis results to the City of Austin’s Watershed Protection and Development Review Department, Watershed Engineering Division (WED), for WED’s review.
(d) Water Quality and Erosion Control. Development of the Project shall satisfy the
stormwater control requirements of the City of
2.1 Approval of the City Applications. Notwithstanding any other provision of this Declaration to the contrary, the agreements of Declarant reflected herein are conditioned upon (a) final approval (i) (i.e., third reading) of the Zoning Case by the City of Austin City Council, and (ii) of the Variance Case by the Board of Adjustment, in both cases with no subsequent appeal and in a form reasonably acceptable to Declarant, and (b) Declarant’s or its successors or assigns acquisition of fee simple title to the Property.
2.2 Notification Date. When Declarant receives a final certificate of occupancy for the Project, Declarant shall promptly notify SRCC thereof in writing (the date that such notice is delivered to SRCC is the “Notification Date” herein).
III. Default and Remedies
3.1 Remedies. In the event of a breach or threatened breach of this Declaration, only Declarant, including its successors and assigns, and SRCC shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach. If any party (a “Defaulting Party”) shall fail to comply with any term, provision or covenant of this Declaration and shall not cure such failure within thirty (30) days after receipt of written notice (or if the default is of such character as to require more than thirty  days to cure and the Defaulting Party shall fail to commence to cure the same within such period or shall fail to use reasonable diligence in curing such default thereafter) from an entity with the right hereunder to seek relief for such breach (a “Non‑Defaulting Party”) to the Defaulting Party of such failure, the Non‑Defaulting Party shall have the option of pursuing any remedy it may have at law or in equity, including without limitation specific performance or injunctive relief from a court of competent jurisdiction.
3.2 Security Deposit. As security for the performance of its obligations under this Declaration, Declarant, on the effective date of this Declaration, has placed a $50,000.00 Letter of Credit (the “Security Deposit”) in an escrow account held by _____________________ (the “Escrow Agent”). If, on or before the date that is eighteen (18) months after the Notification Date, as the result of a breach by Declarant hereunder, subject to applicable notice and cure periods, SRCC institutes legal proceedings to enforce its claim that Declarant is in breach hereunder and provides the Escrow Agent written notice thereof, then SRCC may draw on the Security Deposit from time to time thereafter to pay invoices for the actual out-of-pocket expenses it has incurred (but not required to be paid) as a direct result of instituting and pursuing such legal proceedings, including reasonable attorneys’ and other consultants’ fees and court costs by submitting a written request for reimbursement to the Escrow Agent along with copies of such invoices for such expenses (the amounts paid by the Escrow Agent to SRCC hereunder, the “Paid Costs”); provided, however, that if SRCC’s claim that Declarant is in breach hereunder is not successful in such legal proceedings, then SRCC must immediately upon demand reimburse Declarant for twenty-five percent (25%) of the amount of the Paid Costs plus statutory interest calculated from the date or dates such Paid Costs were paid to SRCC by the Escrow Agent. If SRCC has not instituted legal proceedings and given the Escrow Agent written notice thereof on or before the date that is eighteen (18) months after the Notification Date, then the provisions of this Section 3.2 shall automatically lapse and terminate, and the Security Deposit shall be returned to Declarant by the Escrow Agent.
IV. General Provisions
4.1 No Third‑Party Beneficiary. The provisions of this Declaration are for the exclusive benefit of the parties hereto and their successors and assigns, and not for the benefit of any third person, nor shall this Declaration be deemed to have conferred any rights, express or implied, upon any third person or the public. It is expressly understood and agreed that the terms of this Declaration shall not be binding upon the current owner of the Property, it being the intention of the parties that the terms of this Declaration are conditioned upon the occurrence of the events described in Section 2.1 above.
4.2 No Dedication. No provision of this Declaration shall ever be construed to grant or create any rights whatsoever in or to any portion of the Property other than the covenants, conditions, and restrictions specifically set forth herein. Nothing in this Declaration shall ever constitute or be construed as a dedication of any interest herein described to the public or give any member of the public any right whatsoever.
4.3 Notice. All notices required or permitted to be given hereunder, or given in regard to this Declaration shall be in writing and the same shall be given and be deemed to have been served, given and received (a) one (1) business day after being placed in a prepaid package with a national, reputable overnight courier addressed to the other party at the address hereinafter specified; or (b) if mailed, three (3) business days following the date placed in the United States mail, postage prepaid, by certified mail, return receipt requested, addressed to the party at the address hereinafter specified. Declarant and SRCC may change their respective addresses for notices by giving five (5) days’ advance written notice to the other in the manner provided for herein. Until changed in the manner provided herein, the Declarant’s address for notice is as follows, and SRCC’s is as set out by its signature below:
Telecopy: (___) ___-____
Telephone: (___) ___-____
with a copy to:
Drenner & Golden Stuart Wolff, LLP
Attn: Steven C. Metcalfe
Telecopy: (512) 404-2244
Telephone: (512) 404-2200
4.5 Entire Declaration. This Declaration constitutes the entire agreement between the parties hereto regarding the matters set forth herein. The parties do not rely upon any statement, promise or representation with respect to the matters set forth herein that is not herein expressed, and this Declaration once executed and delivered shall not be modified or altered in any respect except by a writing executed and delivered in the same manner as required by this document.
4.6 Severability. If any provision of this Declaration shall be declared invalid, illegal or unenforceable in any respect under any applicable law by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. It is the further intention of the parties that in lieu of each covenant, provision, or agreement of this instrument that is held invalid, illegal or unenforceable, that be added as a part hereof a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may possible and be legal, valid, and enforceable.
4.7 Rights of Successors. The restrictions, benefits and obligations hereunder shall create benefits and servitudes running with the land. Subject to the other provisions hereto, this Declaration shall bind and inure to the benefit of the parties and their respective heirs, representatives, lessees, successors and assigns. Reference to “Declarant” includes the future owners of their respective portions of the Property, including any portions of the Property that may in the future be created as separate tracts pursuant to a resubdivision of any portion of the Property. The singular number includes the plural and the masculine gender includes the feminine and neuter.
4.8 No Merger. It is expressly understood and agreed that the parties hereto do not intend that there be, and there shall in no event be, a merger of the dominant and servient tenements in the Property by virtue of the present or future ownership of any portion of said tenements being vested in the same person(s) or entity, but instead intend that the easement servitudes shall not be extinguished thereby and that said dominant and servient tenements be kept separate.
4.9 Counterparts; Multiple Originals. This Declaration may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
4.11 Exculpation. Any person or entity subsequently acquiring fee or leasehold title to any portion of the Property shall be bound by this Declaration only during the period such person or entity is the fee or leasehold owner of such portion, except as to obligations, liabilities or responsibilities that accrue during said period. Although persons or entities may be released under this Section 4.11, the covenants, conditions, and restrictions in this Declaration shall continue to be benefits and servitudes upon the Property running with the land.
COUNTY OF ________ §
This instrument was acknowledged before me this ____ day of __________, 2008, by _____________, the _____________ of ________________, a ______ __________________, on behalf of the _________________________.
Public, State of
AGREED TO AND ACCEPTED:
COUNTY OF TRAVIS §
This instrument was acknowledged before me on this the ______ day of
__________________, 2008, by _________________________, as
_____________________ of the South River City Citizens Neighborhood Association,
Public, State of