Page 1 of 41 Electronically Recorded Tarrant County Texas Official Public Records 11/27/2012 12:14 PM D212289851 — PGS 41 $176.00 Oiwet tous beets AFTER RECORD hey RERSRCSE: Submitter: SIMPLIFILE Robert Db. Burton Winstead, PC 401 Congress’ Ave. Suite 2100 Austin; Texas 78701 re | iii inre ie i SECOND. AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITION S. AND RESTRICTIONS wHn 1 TERE H EIGHTS THIS DOCUMENT AMENDS AND RESTATES THAT CERTAIN AMENDED AND RESTRICTIONS FOR WHITTIER HEIGHTS RECORDED“IN DOCUMENT NO.
D212060960, OFFICIAL PUBLIC RECORDS OF TARRANT, COUNTY, TEXAS.
Declarant: TOLL DALLAS TX LLC, a Texas limited liability compariy This Amended and Restated Declaration of Covenants, Conditions and Restrictions may be used only in connection with the residential community known as Whittier Heights in Tarrant County, Texas and the operation of Whittier Heights Maintenance Association, Inc.
ARTICLE 1 ARTICLE 2.
ARTICLE 3.
Page 2 of 41 TABLE OF CONTENTS DEFINITION DS irccvsrevsnccesscerseeenstensacensecaneecanscaneesaaenssepneseneasanatensensuseees sbacceeeteneeerecesseeescaeeneeenss 2 Usk AND CONSTRUCTION RESTRICTIONS 0... ccccccssesssecesssssseesseesessscescasvecseessaeeeacs 5 4}. 01." “General saceaegenees seseeasenenssseneanenasseesdsevsnsseeasceasnenscueneassuedsesenrersurrerenaeeeerseneeesaeeacansaessseesaeseneesoas 5 “FOO Gtabdividing .cssoossssssssssssssssssssssssnssssssssassssssscssunsessensnnenesasessnessseeseensesereneeeyeuveneeree 5 2. 03". “Hazardous ACEIVUTIOS. oe. reese cereeeracenecnseenressasescenscasepecaensdeseanessseseasessenseneessnseasenenes 6
sssnssssssssassssssscssunsessensnnenesasessnessseeseensesereneeeyeuveneeree 5 2. 03". “Hazardous ACEIVUTIOS. oe. reese cereeeracenecnseenressasescenscasepecaensdeseanessseseasessenseneessnseasenenes 6 2.04, Insurance Rates............. sussscssesacessesssecssccesscenseacessenssuansssorsesenapurssavecuessveaecaversenseassauessaenseans 6 2.05 f NOISC.s.csgeegenriseesceesseetseeesetnsetseetsssiestsstasenssnesisestsesteestssastecaniastcanneeeneeesee 6 2.06 ». Animals - Household Pets ..........cssccssssssssssssecssnsescseceeseesseresensesansiessssessensauessssseseassuatssuees 7 2.07 Rubbish: and Debris sessanescesseesaesusseaccusaseaseseeessusssnesecsansscsnsanneassaeeasenecssecrecersuersensesansenesreaes 7 2.08 Maintenanice and: Use seseneusessvenaceeesensessresersacenecaeeeens seacencecenscsceessceseatesseceecsuenscescesesteaseneeaes 7 2.09 Minin Squiare Footage vanteseaneasseceeseneesecsneeessceeeeeeedersesacceececrersorsceeeesressussraseareaenecenpeeans 8 2.10 Structure Materials: Exterior Items and Surfaces... ceeccsnsceeeeneeneeeseneees seveoraee 8 2.11 Driveways & Garages _— no tchpeosereeeneecseeenecssererenecenssseseersdenesetscessaneasessseseusasesassesseeseasssgeenen 9 2.12 Fences and Wallac weeceesaseecssuessssasssessssccsccessscaesceeeusccesassseensaeceensaserstersererssesess 9 2.13 Landscaping nna epesiisesctticgescssnveeessssnneessecsnneceesnseniecesneeeessaseesessssuntseesseaseessssssnueeessseeees] O 2.14 Mailboxes and Address Plaques. sacegeateeseesecessscesensceeceveneuneseenensecesesedecanseapsaeaneaeeasseseaseens 10 2.15 Antennae... sagctentinnee pegs leecegedionsanseneseseenecnsssssunenesececeesanstussnsaseteeseessessecrssssssarenseL 2.16 Location of Permitted Anterings.. senaverseronevorseersrevesereesenraadenpacsnesesessnseannessaescceeenenesenees 11
gedionsanseneseseenecnsssssunenesececeesanstussnsaseteeseessessecrssssssarenseL 2.16 Location of Permitted Anterings.. senaverseronevorseersrevesereesenraadenpacsnesesessnseannessaescceeenenesenees 11 2ALZ = SHB woes ccccceenseetneee ees paptloscscsenensensegetoneee. liesaeetesacenscereaesonsceeserpersrseeeaaeespradansavecenssaeenees 11 2.18 — TAarnks ...--ceseesserseceersrssensneseserssesenssegevetrecapsderyseaesfrsneeesseseseneseeesesseassnssseceasseaseaseesssvescaesneneen 12 2.19 ‘Temporary Structures seeseceteedluvnenagtlessenttl neve seeneneeesaeenesneresvenseaeesesecdaseeaenesessnetennersentess 12 2.20 Unsightly Articles; Vehicles racine seseaesensevsesenecaesesosscerceceusesessensnenensarseseeates 13 2.21 On Street Parking: Use of Common Atea::: sesdeseseceecesascasssnssesstesssecctsesterseesereees LG 2.22 Mobile Homes, Travel Trailers and Retreatiohal Vehicles sesecsseeeecavecevsscossevssesasananens 13 2.23 Basketball Goals; Permanent and Portable. (roaapangvestgeseesenenesceencescensencracerecasssesesenssensees 13 2.24 Compliance with Restrictions...............-- LvaechevessslopegLerqesesesasessanssssssessssesussssssecssnecesssen 14 2.25 Liability of Owners for Damage to Commion. Area a sensevecsetsorseeseneueneeasearenesnasenenes 14 2.26 No Warranty of Enforceability ....0....0. Levevel vpeleseth sacsessecceessensereeaeactesesesenerees 15 2.27. No Tennis or Recreational Courts; Playscapes.:. seagtilapetioee lin san eecaseaeeeseasesssesneseaenans IS 2.28 Approval’? for Construction; Additional RestrictiOAs.. ya sesesyenseaceneavreneesesaenes: 15 2.29 USO eereeccssesessnescsscossesssecsssessnsesssecesscssseceasessssessseessecaneesansee Dorset osseqshiifeseSeseeseesseeessseenseeeen LD
itional RestrictiOAs.. ya sesesyenseaceneavreneesesaenes: 15 2.29 USO eereeccssesessnescsscossesssecsssessnsesssecesscssseceasessssessseessecaneesansee Dorset osseqshiifeseSeseeseesseeessseenseeeen LD 2.30 Remtals..cscsssmsneneneunenteneisnennanetanansanenae tit cit tt se sessaveessseasecsseces 15 2.31 Alteration or Removal of Improvements sestessesssestsseessessactaatligeten seeptteyeecl nevereretesseseess 16 2.32 Comstruction Activities .....ccccccssecsssesecesssesssessssesssnesesesee Feselgedagecseepelegphgsessssaeesses 16 2.33 Clotheslines; Window Air Conditioners ......000..00.ccccsecereeee: TaenedacseaSiereeetlctey ne 16 2.34 DUMMpinng....seecccssosrecsssssecssnsseesssssssenssssecssssssesscsssssssessssscsssuescssssecsssssseedoceapttl ontfceegdcegpeqeanal 7 2.39 Restriction on Use of Common Area savseesessnsssasesesessnsnssvsseessnssseensessesscfiveayetl ogee seeee S17 WHITTIER HEIGHTS MAINTENANCE ASSOCIATION, INC ....cssssessiussspiicesssseesne 7 B01 Organization n.ccccccccccsscsssseccssecsssssssssssssssssscssessessecsssssscssusecssucecceveeseesevscnseeenstievessserseseees 7 3.02 Membership... cccescccsecsenecsseseesceaensssneaesscesnessenssacesassessasscasesceasaeeseceasscgartenctassssaveasenes 17 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 3.03 Csovernance ARTICEE 3 4, INSURANCE.
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"A: C2 mo 4,03, ~ Insurance ARTICLE 5. “COVENANT FOR ASSESSMENTS ...
5, Ql | 5.05" 5.03 5.04 9,05 5.06 5,07 5.08 5.09 5.10 5.11 ARTICLE 6. COMMITTEE 6.01 6.02 6.03 701 7 O2 7.03 8.01 8.02 6.03 8.04 8.05 8.06 8.07 5.08 8.09 8.10 3.1] Gender...
9.01 9,02 ~ Assessments 4 Regular Annual Assessments ......
Special Asséssinents Individual Asseséirients
05 8.06 8.07 5.08 8.09 8.10 3.1] Gender...
9.01 9,02 ~ Assessments 4 Regular Annual Assessments ......
Special Asséssinents Individual Asseséirients Amount ot Assessment....... seaveusesenensceneeanecans Late Charges... wn ielebevsevececessnecaensecevscsaeasesscencensesassectecsessarnedssesuescssredsseesesscesensseserenseeseees 25 Owner's Personal Obligation for Payment of Assessments Assessment’ Lien... ee LE A ee ie i il ie De il el ee eh ee en nn eee eee err e ee E See e ee ee e e e e | Fetters FFF waueed ll ' Tee eee ee | Consiruction of Improvements”.
Establishment of the ACG@’and the Cémrhittee Approval Process...........0..0 pienecagetiecsdhecsedicanssesescssessssenensenesscacsseeacsasenesensansieesescansese 29 ARTICLE 7. MORTGAGE PROVISIONS Notice of Action Examination of Books sonnet gat eccscsucenseceeceeeceseeessesteussaceurrsavsseasecaseceas 32 Taxes, Assessments and Charges saanes ak Eminent Domain............
Amendment.............0:006 Enforcement...
Higher Authority....... Leeeeeseess Severability ........ccecccsescsesessssesenseeeessesencsssessnenenesssessesseness eoijet league Toneeeaseguceasseeceseseeseesee 33 COMFTCES ose esssssesssessssscsenesecceacsssscsseseseenessessesecsessnnussssustesesasieltulbepitennendSOtipeclgecseneeccenseeee 33 Damage and Destruction : genet, Notices Pe ee ee Pe ee ee ee ee ee ee ee ee ee 2 ee voeeelic. Poa weve fceseoeves 34 View Impairment...
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1 ” 7 Ce L ARTICLE 9. EASEMENTS ..0.00.... cee cceesccssccccseccccsececsscccteceeccapessescecsanscsecsssactcseueseseneceunsteess - . , Right of Ingress and Egress Reserved Easements 1 el et ed ee ee eee ee daaeeneunncuenunenaeueutessaueeuunuuuaeueuneasusenuneaucncarceuccccauuuvepecceeeseeeeenesacececccedaceencceecceccesecccece 23 dc abeaaedauvaceeucdacadeceuuescaaceesacaaeausteuuseddesacccheuuawaeeneeuaneeaeataedcuecceaceecccececcccecceccceccccccce 23 Mechanic sand Materialmen’s Lien ..............ccccece. nes oe oeece cece DS heeutagaunensduacueueenncueusnuseneuensnatedeueueneentenabenanareensecuecunchurenecuceeccececececcceeecencceccececce DA ca cursaneaaaeueraaeursensresdauneaaveuanneeussdnburaaennssuunsanecdssdssdutecdcncencaacecenencccenesenace 24 TREE PRP RFP PERRET PREP 12D SERSCR PRR REPRE aha wef seceeerscenscesnecstensas 28
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a a . 1 “, 1 = a -_ ll SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 5 of 41 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR WHITTIER HEIGHTS RECITALS On AL “Toll Dallas TX LLC, a Texas limited liability company (“Declarant”), previously executed atid: recorded that certain Amended and Restated Declaration of Covenants Conditions’ 7 "Restrictions for Whittier Heights, recorded as Document No. D?12060960, Official Public Records. ‘of Tarrant County, Texas (the “Prior Declaration”).
B. ‘Pursuant to: ‘Section 8.03 of the Prior Declaration, the Prior Declaration may be amended by recording in ‘the Official Public Records of Tarrant County, Texas, of an instrument executed and acknowledged: by tke Declarant acting alone until expiration of the Development and Sale Period. The Development, and Sale Period has not yet expired as Declarant owns a Lot
an instrument executed and acknowledged: by tke Declarant acting alone until expiration of the Development and Sale Period. The Development, and Sale Period has not yet expired as Declarant owns a Lot within the Property on the’ date this I Declaration is recorded in the Official Public Records of Tarrant County, Texas. 4 : We eel = NOW, THEREFORE, it’ is hereby declared that: (i) those portions of the Property (as defined below), which had heretofgré beén- ‘Subjécted to the Prior Declaration, shall be held, sold, conveyed, used and occupied. “stibject to the following covenants, conditions and restrictions which are for the purposes-of protecting thie value and desirability of the Property (as defined below) and which shall run with the Property and shall be binding upon all parties, their heirs, successors and assigns, having right;t title’ or interest in or to the Property or any part thereof, and shall inure to the benefit of each ownér thereof; (ii) all dedications, limitations, restrictions and reservations shown on a Plat (as défined. bélow) and all grants and dedications of easements, rights-of-way, restrictions and related- rights, made prior to any portion of the Property becoming subject to this Second Amended and _ Restated Declaration of Covenants, Conditions and Restrictions for Whittier Heights (this: Declaration”) are hereby incorporated into this Declaration for all purposes as if fully set forth*herein ‘and shall be construed as adopted in each and every contract, deed or conveyance; id) gach contract or deed conveying or deed; and (iv) upon the recording of this Declaration, the Prior De‘ lpration shall be amended, restated and replaced in its entirety by the terms and provisions of this- Declaration.
eed conveying or deed; and (iv) upon the recording of this Declaration, the Prior De‘ lpration shall be amended, restated and replaced in its entirety by the terms and provisions of this- Declaration.
This Declaration uses notes (text set apart in boxes) to illustrate concepts and assist the reader. If there is a conflict between any note and the text of the Declatation, the | text will control. ° l AUSTIN 14673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 6 of 41 ARTICLE 1.
DEFINITIONS Unless the context otherwise specifies or requires, the following words and phrases when used in this Declaration will have the meanings hereinafter specified: “Committee” means the committee created pursuant to this Declaration to review and approve ‘plans: for the construction, placement, modification, alteration or remodeling of any Improvements on: any Lot. All such approvals shall be written and shall be kept as records of the Committeé. a 5 “Anticlas” -theans the “Articles of Incorporation of the Association, filed in the Office of 2% =e oe the Secretary of State. of Texas; as: the same may be amended from time to time.
“Assessment” or “ Assesment” means assessments imposed by the Association under this Declaration. ao waueed ll “Association” means Whittist + Heights Maintenance Association, Inc., a Texas non-profit corporation, created to exercise the authority. and assume the powers specified in Article 3 and elsewhere in this Declaration. os “Board” means the Board of Directors of the Association “Bylaws” mean the Bylaws of the Assodiativin as s adopted and as amended from time to time. ee “City” means the City of Colleyville.
Jt _" i! —_
“Board” means the Board of Directors of the Association “Bylaws” mean the Bylaws of the Assodiativin as s adopted and as amended from time to time. ee “City” means the City of Colleyville.
Jt _" i! —_ “Common Area” means any property and facilities’ that. the Association owns or in which it otherwise holds rights or obligations, including: without limitation, all property designated as open space lots on the Final Plat of Whittier Heights filed on September 25, 2003 in the Official Public Records of Tarrant County, Texas, the Amending Plat of Whittier Heights filed on March 5, 2009 in the Official Public Records of Tarrant County, Texas, and Final Plat of Whittier Heights Phase II filed on January 13, 2012 in the Official’ Public Records of Tarrant County, Texas (collectively, the “Original Plat”). Common Area includés any: property that the Association holds under a lease, license, or any easement in favor of thie’ Association, “Declarant” means TOLL DALLAS TX LLC, a Texas limited liability company. its successors, assigns, or affiliates; provided that, except as otherwise provided. i in. Section 10,02 below, Declarant may not make any assignment(s) of the rights of TOLL DAELAS TX LLC, a Texas limited liability company, as Declarant, to an entity unless such entity is owned and controlled by Toll Brothers, Inc., a Delaware corporation. oe 2 AUSTIN_1 (673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page / of 41 “Declarant-Owned Lot” means any portion of the Property owned by Declarant (and its permitted assigns as set forth in the definition of “Declarant” set forth above and Section 10.02 below) exclusive of any Common Area.
wf
means any portion of the Property owned by Declarant (and its permitted assigns as set forth in the definition of “Declarant” set forth above and Section 10.02 below) exclusive of any Common Area.
wf “Design Guidelines” means the standards for design, construction, landscaping, and exterior items, if any, placed on any Lot adopted pursuant to Section 6.03(c), as the same may be amended ‘from: -fime to time. The Design Guidelines may consist of multiple written design guidelines applying to specific portions of the Property. Notwithstanding anything in this Declaration fo the” contrary, the Committee will have no obligation to establish Design Guidelines” °°" 2 “Dev elopine erit ni 83 ia Period” means the period of time from date this Declaration is recorded through’thé earlier to-cecur of: (a) ninety (90) days after Declarant has sold the last Declarant-Owned Lot with } a conipleted residence thereon to a third party (in the event the Declarant acquires a “Lot within. the Property during the ninety (90) day period after the conveyance of the then-last Declarant-Owned Lot, the Development and Sale Period will be extended until ninety (90) days, after: Declarant has sold the last Declarant-Owned Lot with a Development and Sale Period’ by.a at instrument executed by Declarant and recorded in the Official Public Records of Tarrant County; Texai. The Development and Sale Period is the period in which Declarant reserves: ‘the Tight. to facilitate the development, construction, and _marketing of the Property, and the right to chrect the size, shape and composition of the Property. ° : “Improvement” means every structire ‘and ‘all-appurtenances of every type and kind, whether temporary or permanent in nature of alteréd, including, but not limited to, buildings,
of the Property. ° : “Improvement” means every structire ‘and ‘all-appurtenances of every type and kind, whether temporary or permanent in nature of alteréd, including, but not limited to, buildings, outbuildings, storage sheds, patios, tennis courts, sport courts, recreational facilities, swimming pools, putting greens, garages, driveways, parking areag- and/or facilities, storage buildings, sidewalks, fences, gates, screening walls, retaining walls,” ‘stairs, patios, decks, walkways, landscaping (including exterior lighting, sculpture and" other’ ‘outdoor art, and outdoor recreational "sor Hel mailboxes, Poe signs, antennaé, ‘exterior, alt et ant ne equipment connection with water, sewer, gas, electric, telephone. regulat or’ F cable’ television, or other utilities. | “Lot” means each platted residential lot within the Property, but, excludes Common Area. rs “Manager” has the meaning set forth in Section 3.05(h). a “Members” means every person or entity that holds membership privileges int * the Association.
3 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 8 of 41 “Mortgage” or “Mortgages” means any mortgage(s) or deed(s) of trust securing indebtedness and covering any Lot.
1 = Li] “Mortgage” or “Mortgagees” means the holder(s) of any Mortgage(s).
: “Owner” means the person(s), entity or entities, including Declarant, holding all or a portton- “OL the fee simple interest in any Lot, but does not include the Mortgagee under a Mortgage priot to<its acquisition of fee simple interest in such Lot pursuant to foreclosure of the lien of its- “Mortgage: or an owner of only a mineral interest (with or without surface rights related solely, to, thie mineral interest).
ee simple interest in such Lot pursuant to foreclosure of the lien of its- “Mortgage: or an owner of only a mineral interest (with or without surface rights related solely, to, thie mineral interest).
“Persoii ‘tijedins, any i individual or entity having the legal right to hold title to real property. as yet 7 a * “Plat” means a a’éubdivision plat of any portion of the Property as recorded in the Official Public Records of Tarrant: Covinty, 7 Texas, ans any amendments thereto.
waueed ll Block B, Tot 1 thorough 1 16, Block c G Lots 1 through 21, Block D, and Lots 7 though 10, Block B Whittier Heights, a subdivision Jocated 4 in Tarrant County, Texas, according to the Original Plat recorded in Cabinet A, Slide 8667. and 8668; ‘in the Official Public Records of Tarrant County, Texas; (ii) Lots 1R though 6R, Block E, “Amending Plat Lots 1R-6K, Block E, Whittier Heights, a subdivision located in Tarrant County, ‘Texas, according: to the Original Plat recorded in Cabinet A, Slide 9530, in the Official Public Records. of Tarrant County, Texas; (iii) Lots 19R and 21R, Block A, a Replat of Lots 19, 20 and 21, Block: A of Whittier Heights, a subdivision located in Tarrant County, Texas, according to the Original Plat recorded in Cabinet D212009458, in the Official Public Records of Tarrant County, Texas; anid (iv) Lots 1 through 6, Block 1, Final Plat of Whittier Heights Phase II, a subdivision located. in: Tarrant. County, Texas, according to the Original Plat recorded in Cabinet D212009456, in the Official Public Records of Tarrant County, Texas. : “Restrictions” means the restrictions, covenants,’ and’ “conditions contained in this Declaration, the Design Guidelines, Bylaws, or in any rules and regulations promulgated by the
nt County, Texas. : “Restrictions” means the restrictions, covenants,’ and’ “conditions contained in this Declaration, the Design Guidelines, Bylaws, or in any rules and regulations promulgated by the Association pursuant to this Declaration, as adopted and ameridéd from time to time. Table 1 includes a summary of the Restrictions. we me “Resident” means an occupant or tenant of a Lot, regardless of whether the person owns the Lot. PR EG 4 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 9 of 41 TABLE 1: RESTRICTIONS Declaration Creates obligations that are binding upon the (recorded) >: Association and all present and future owners of ae Property.
Atticles es of Incerporation The Articles of Incorporation of the Association, which establish the Association as a not-for-profit corporation ee under Texas law.
Bylaws ca The By-Laws of the Association which govern the (adopted wy the Asopcation) : Association’s internal affairs, such as_ elections, meetings, etc.
Design Guidelines the, The design standards and architectural and aesthetics (if adopted) oe aon guidelines adopted pursuant to Article 6, which govern Oe Te oe new construction of Improvements and modifications thereto.
Rules: ne . ; The use restrictions and rules of the Association Association) ee - ae of property, activities, and conduct within the Board Resolutions: _ vs The resolutions adopted by the Board which establish (adopted by the Board of the -tules, policies, and procedures for internal governance Association) . and activities‘af the Association.
USE AND CONSTRUCTION .-RESTRICTIONS
by the Board which establish (adopted by the Board of the -tules, policies, and procedures for internal governance Association) . and activities‘af the Association.
USE AND CONSTRUCTION .-RESTRICTIONS 2.01 General. All Lots within the Property will be owned, held, encumbered, leased, used, occupied and enjoyed subject to: (i) the applicable.conditions, restrictions, reservations, eetIL modified as to such Lots; and (iii) any rules and regulations adopted by the Board.
Ordinances and requirements imposed by local goverineiital authorities are applicable not a substitute for compliance with such ordinances and regulitions.- Neither the Declaration nor the Design Guidelines purport to list or describe each restriction which may be applicable to a Lot located within the Property. Each Owner is advised to review all enciumbrances affecting the use and improvement of their Lot prior to submitting plans to the Commitiee ‘for approval.
Furthermore, approval by the Committee should not be construed by. the. Owner that any improvement complies with the terms and provisions of all encumbrances which may “affect the Owner's Lot. Certain encumbrances may benefit parties whose interests are- not: dddrbesed by the Committee. ae 2.02 Subdividing. No Lot may be further divided or subdivided as to increase the number of Lots within the Property, nor may any easements or other interests therein less than n) SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 10 of 41 the whole be conveyed by the Owner thereof without the prior written approval of the Board.
Notwithstanding the foregoing, Declarant may cause Declarant Owned Lots to be combined
ICTIONS Page 10 of 41 the whole be conveyed by the Owner thereof without the prior written approval of the Board.
Notwithstanding the foregoing, Declarant may cause Declarant Owned Lots to be combined and re-platted for the purpose of creating new Lot lines provided the total number of Lots may not be increased without ‘the approval of the Board, and provided further that the main residenitia) structure or any replatted Lot shall not be less than 3,250 square feet.
203° Hazardous Activities.
‘ear No: activities may be conducted on or within fhe Property and no Improvements constructed’ oni any portion of the Property which, in the opinion of the Committee, are or might be unsafe or. hazardous’ to amy person or property. Without limiting the generality of the foregoing, activities that are expressly prohibited include (1) the use or discharge of firearms or fireworks upon any portion of tie Property, unless discharged in conjunction with an event approved in advance by. the: Board or such event is not prohibited by law; (2) the use of storage of gasoline, oil or any” similar type of flammable liquids in other than closed tanks with capacities of five (5) gallons or Jégs within an enclosed structure or permanently screened from view; provided, however, only: stich. Liquids and gases as are customarily used for residential purposes shall be allowed Within’ the “Property; (3) any activities which may be offensive or hazardous by reason of odor, fumes; dust, smoke, noise, vision, vibration or pollution, or which are hazardous by reason of excessive danget, fire’ or explosion; (4) hunting or trapping; (5) open fires, except within safe and well“designed fixeplaces or in contained barbecue units while
or which are hazardous by reason of excessive danget, fire’ or explosion; (4) hunting or trapping; (5) open fires, except within safe and well“designed fixeplaces or in contained barbecue units while attended and in use for cooking purposes; (6) thé. use of bows and arrows, crossbows, slingshots, darts or other projective devices; or’ (7). the. discharge or leakage of any type of hazardous or toxic chemical or material,- uch” as." ‘oil; fertilizers, pesticides or herbicides; provided, however, only such materials as are “customarily used for residential purposes shall be allowed within the Property. No portion of the Property may be used for the takeoff, storage, or landing of aircraft (including, without limitation, helicopters) except for medical emergencies. cna (b) No fertilizers, pesticides or herbicides ather. than those generally available for consumer use and approved by a local, state, or federal’ agency; ‘such as the Food and Drug Administration, for the purpose intended shall be placed, vised ot, ‘stored on any Lot. All with such materials and shall take proper precautions placing, using atid storing such materials so that such materials are contained at all times and do not result 4 in the, unnecessary discharge thereof onto any other Lot. 2.04 Insurance Rates. Nothing may be done or kept on the Property’ which would increase the rate of casualty or liability insurance or cause the cancellation of: any ‘such 3 insurance on the Common Area, or the Improvements located thereon, without the priory Written approval of the Board. : .
2.05 Noise. No horns, whistles, bells, or other sound devices (other than security devises used exclusively for security purposes) may be located, used, or placed on any of the 6
istles, bells, or other sound devices (other than security devises used exclusively for security purposes) may be located, used, or placed on any of the 6 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 11 of 41 Property. No noise or other nuisance will be permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to any other portion of the Property or to its occupants. ‘ oD. 06." ” Animals - Household Pets. No animals, including snakes, pigs, hogs, swine, poultry; ‘fowl, ‘wild animals, horses, cattle, sheep, goats, or any other type of animal not ) consideréd to be. a domestic household pet within the ordinary meaning and interpretation of such wards i may | be kept, maintained, or cared for on the Property. No animal may be allowed to make ari ‘unreasonable amount of noise, or to become a nuisance, and no domestic pets will be allowed’ on ‘the Pkoperty other than within the Owner's residence, or the fenced yard space associated therewith, unless, confined to a leash. The Association may restrict pets to certain areas on the Property.. -No- ‘animal may be stabled, maintained, kept, cared for, or boarded for hire or remuneration on the Broperty, and no kennels or breeding operation will be allowed.
No animal may be allowed. to run at large, and all animals must be kept within enclosed areas which must be clean, sariitary, ‘afid-reasonably free of refuse, insects, and waste at all times. No pet may be left unattended ini ‘yards, porches or other outside area. All pet waste will be removed and appropriately, disposed of by the « owner of the pet. All pets must be registered,
all times. No pet may be left unattended ini ‘yards, porches or other outside area. All pet waste will be removed and appropriately, disposed of by the « owner of the pet. All pets must be registered, source of unreasonable annoyanee 16 others, or r the owner of the pet fails or r refuses to comply with these restrictions, the owner, upott written notice, may be required to remove the pet from the Property. es 2.07 Rubbish and Debris. No rubbish Or debris of any kind may be placed or permitted to accumulate on or within the PYoperty,. ‘and no odors will be permitted to arise therefrom so as to render all or any portion of the’ Property unsanitary, unsightly, offensive, or detrimental to any other property or to its occupanis: Refuse, garbage, and trash must be kept at all times in covered containers, and such containers miust be kept within enclosed structures m1 roperty and public and private rights-ofway; provided, however, that garbage containers shall be permitted to be placed outside of enclosed structures and may be removed from screened. aréas a maximum of two (2) times each week, for no longer than twenty-four (24) hours each time for garbage collection. Each Owner 2.08 Maintenance and Use. No Owner or Resident shall, carry on, or permit to be carried on, any practice on his Lot or on the Property which unreasonably ‘triterferes with the quiet enjoyment and proper use of another Owner of his Lot or the Common: Atea, or which creates or results in a hazard or nuisance on the Property. The Qwner of. each Lot will have the duty and responsibility, at its sole cost and expense, to keep such Lot and. ail Improvements thereon in good condition and repair and in a well-maintained, safe, cleat. and. attractive
will have the duty and responsibility, at its sole cost and expense, to keep such Lot and. ail Improvements thereon in good condition and repair and in a well-maintained, safe, cleat. and. attractive condition at all times. The Board, in its sole discretion, will determine whether a. violation of the maintenance obligations set forth in this Section 2.08 has occurred. Such maintenance ‘includes, but is not limited to the following, which must be performed in a timely manner, as‘determined by the Beard, in its sole discretion: 7 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 12 of 41 (a) Prompt removal of all litter, trash, refuse, and wastes.
(by"., Lawn mowing.
20)” Tree and shrub pruning.
‘ . ie) me Wa tering.
Yee Keeping exterior lighting and mechanical facilities in working order.
(f) ; ; ; Kéeping lawn ‘and garden areas alive, free of weeds, and attractive.
(g) Keeping sidewalks and driveways in good repair.
(h) Complying with ai government health and police requirements.
(i) Repainting’ of all iLimptovernents, (j) Repair of exterior! or dag, and wear and tear to Improvements.
2.09 Minimum Squaié Footage. ° The- total air-conditioned living area in the main residential structure on a Lot, as meastired’ to the Outside of exterior walls but exclusive of open porches, garages, patios and detached accessory pareings shall be not less than 3,250 square feet. a 2.10 Structure Materials; Exterior Items and Surfaces. The exterior walls (excluding doors and windows), below the first floor’ ceiling. plate, of each main residential structure constructed or placed on a Lot shall have the mininium coverage of not less than eighty percent
(excluding doors and windows), below the first floor’ ceiling. plate, of each main residential structure constructed or placed on a Lot shall have the mininium coverage of not less than eighty percent (80%) brick or brick veneer, stone or stone veneer, or stucco, that is approved by the Committee.
No single wall of any main residential structure constructed or Placed on a Lot shall be less than seventy-five percent (75%) brick or brick veneer, stone or’ -stone veneer, or stucco that is approved by the Committee, unless the wall is on an outdoor Or open porch, patio, breezeway or courtyard. The exterior portion of any fireplace chimhey: shall -be one hundred percent (100%) brick or brick veneer, stone or stone veneer, or ‘stuceo. that. is approved by the Committee. No material on the exterior of any building or ‘Other, structure or Improvement except wood, hardboard or stucco, shall be stained or painted. without the prior written approval of the Committee. All wood, hardboard or stucco used: on’ the: exterior of a main residential structure and/or any ancillary structures or Improvements: located. on a Lot must be painted or stained in a color compatible with the exterior design and materials. used in the exterior construction of the main residential structure located on such Lot, and: as 8 approved by the Committee. : The minimum roof pitch required is 8:12, except for porch, shed or ore roofing elements. All roofs of the main residential structure and/or any other ‘buildings or structures located on a Lot are required to have a minimum thirty (30) year warranty shingle or 8 AUSTIN. 1 \673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 13 of 41
to have a minimum thirty (30) year warranty shingle or 8 AUSTIN. 1 \673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 13 of 41 equivalent. The color of roof shingles shall be weathered wood or a similar color. All roofing materials must be fireproof, and are subject to approval of the Committee. The use of various roofing. materials within the Property shall be permitted including 3-tab composition roofs rated for a-‘minimnum. thirty (30) year life and/or tile roofs; provided, however, no roofing material, exeept “for- éxact-kind replacement material, shall be installed without first obtaining the Committee’ $ ‘Prior written approval.
In addition, roofs of buildings may constructed with “Energy Efficiency Roofing” with the advantée weittéri’ approval of the Committee For the purpose of the Section, “Energy ~ Efficiency Roofing”: means..shingles that are designed primarily to: (a) be wind and hail resistant; (b) provide’ heating, and cooling efficiencies greater than those provided by customary composite shingles; Or’ (ey ‘provide solar generation capabilities. The Committee will not prohibit an Owner: from installing” Energy Efficient Roofing provided that the Energy Efficient Roofing shingles: (i). resémble, the shingles used or otherwise authorized for use within the community; (ii) are moré durable than, and are of equal or superior quality to, the shingles used or otherwise authorized for® use within the.community; and (ii) match the aesthetics of adjacent property. An Owner who desires to install Energy Efficient Roofing will be ‘required to comply with any such approval process; the Owner should submit information which will enable the
ics of adjacent property. An Owner who desires to install Energy Efficient Roofing will be ‘required to comply with any such approval process; the Owner should submit information which will enable the Committee to confirm the criteria set. forth-4 4n- this Section. Any other type of roofing material shall be permitted only with the advance written approval of the Committee. Any wood shingles must be rated by the Texas _Départment’ of Insurance as meeting fire retardant standards. a Y 2.11 Driveways & Garages. Uriless otherwise approved by the Committee, each residence shall have an attached garage suitable fOr. parking not less than two (2) or more than four (4) standard size automobiles, which garage: conforms i in design and materials with main structure. Any garages with vehicular access doors.or openings facing a public right-of-way must be set back a minimum of twenty feet (20’) from-the building setback line parallel to the public right-of-way which such garage vehicular access ‘doors: ‘oropenings are facing. Any vehicular access doors facing a public right-of-way must be. cedar-clad and stained either clear or medium brown, unless otherwise approved in writing by’ the ‘Committee. Garage doors shall be closed at all times except to allow entry and exit of vehicles atid persons. and except cleaning of or storing in the garage is occurring. All driveways shall be ‘surfaces with, concrete or other substance approved by the Committee. All driveways must be accéssed from the front of the lot unless otherwise approved by the Committee. All driveways and driveway aprons or parking aprons must be kept free of any storage of vehicles or other material and must be: ‘kept clean of any dirt, debris, or stain. For purposes of this Section, “storage” shall mean the parking or
parking aprons must be kept free of any storage of vehicles or other material and must be: ‘kept clean of any dirt, debris, or stain. For purposes of this Section, “storage” shall mean the parking or placing of any object or material for more than one day. oe 2.12 Fences and Walls. Any fence or wall shall: (i) comply with City. feqtiireménts, including those regarding height, location and materials; (ii) not extend nearer. to, the front street than five (5’) feet behind the front of the house without the prior written approval of the Committee; (iii) be constructed according to architectural design, materials, finish, and 9 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 14 of 41 methods, including site installation, approved by the Committee; (iv) be constructed so that the sides containing the structural supports are not visible from any public right-of-way unless approved: by: ‘the Committee; (v) be not less than six (6') feet in height or more than eight (8’) feet in height as measured from existing ground level unless approved by the Committee; (vi) be constructed” on the property lines, except for front facing fences, which shall comply with subclaiise ii). above, and except for any fence located parallel to the side property line of a corner ‘Tot. adjacéttt to a street, which shall be set along or adjacent to the side yard setback line, and board: on-board construction with a 2x6 cap, using cedar pickets and metal poles; and (vii) constructed sing « ‘cedar pickets and stained either a clear or medium brown. Notwithstanding the foregoing; fericirig 6n the-back of lots facing greenbelts and any fencing visible froma public
(vii) constructed sing « ‘cedar pickets and stained either a clear or medium brown. Notwithstanding the foregoing; fericirig 6n the-back of lots facing greenbelts and any fencing visible froma public right of way shall be constructed of wrought iron fencing five (5’) foot in height. Fences may be privately installed: but: angst ‘be constructed to professional levels of quality approved by the Committee. The design and’ ‘specifications for building fences to the extent not specifically provided herein may: he’ spetified by the Committee.
2.13 Landscaping “Bach Lot shall include at least (a) t two (2) trees with a caliper of three inches (3") or greater. within’ the front yard of each Lot and at least two (2) trees with a maintained at all times thereafter” and (b) otherwise comply with any Design Guidelines promulgated by the Committee (calléctively, ‘the “Minimum Landscaping Requirements”): provided however, neither Declarant. OL. the, €ommittee shall have any right or obligation to review and/or approve, and the Mininiuny Landscaping, Requirements shall not govern or apply to any landscaping installed by an Owner on a-Lot in, areas screened (by fencing or otherwise) and not visible from any other Lot, street; public, right-of-way or common area within the Property. Any trees required to be installed oni’ a Lot pursuant to the Minimum Landscape Requirements shall be replaced by the Lot Owner if Said tree(s) does/do not survive. Tree type may be selected by the Committee and a list of ‘approved landscaping materials may be incorporated into the Minimum Landscaping Requirements: established by the Committee.
Declarant or the Association shall have the right (but has,no obligation) to grade, plant and/or
materials may be incorporated into the Minimum Landscaping Requirements: established by the Committee.
Declarant or the Association shall have the right (but has,no obligation) to grade, plant and/or landscape and maintain, repair, replace and/or change such grading, planting and landscaping on any portion of the Lot which is located outside the building, setback or sight lines, including, all public rights-of-way and easements located on or contiguous, toariy:Lot, as established by the Plat, this Declaration or any governmental entity. Landscaping’ of a Lot; :which must include a sprinkler system in the front yard (and on corner Lots, sprinkler. systems. for. side yards visible from any public right-of-way), shall be completed within thirty (30). days" after the date on which the house receives a Certificate of Occupancy from the City. Each Owner of a Lot shall use reasonable efforts to preserve, keep and maintain the landscaping’ ‘in’ a ‘healthy and attractive condition. No wooden retaining walls shall be permitted in the. front: yard Or where visible from any public right-of-way. No exterior spotlighting shall be permitted which creates a nuisance as determined by the Board for adjacent homeowners. oe OS 2.14 Mailboxes and Address Plaques. Mailboxes, mail stations, and address plaques shall be constructed and located in accordance with the specifications of the applicable Committee and according to requirements of the City and the U.S. Postal Service. There 10 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 15 of 41 presently exists a uniform standard of mailboxes, mail stations, and address plaques, and future
HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 15 of 41 presently exists a uniform standard of mailboxes, mail stations, and address plaques, and future mailboxes, mail stations, and address plaques, and any replacements thereof, shall be in conformity with existing standards, as reasonably determined by the Committee.
2, 1B ” Antennae. Except as expressly provided below, no exterior radio or television antennaé or aerial or satellite dish or disc, may be erected, maintained or placed on a Lot without the’ ‘Priors ‘written approval of the Committee; provided, however, that: ‘ar a. antenna designed to receive direct broadcast services, including direct-tohome satellite services, that are one meter or less in diameter: (b) ‘ar ainténna: ‘Résigned to receive video programming services via multipoint distribution services; ‘induding. ‘multichannel multipoint distribution services, instructional television fixed services, and. focat multipoint distribution services, that is one meter or less in diameter or diagonal measurement; or (c) an antenna ihat i is s designed to receive television broadcast signals; (collectively, (a) through (c) are referred ‘to herein as‘the “Permitted Antennas”) will be permitted subject to reasonable requirements as to location and. ‘screening as may be set forth in rules adopted by the Committee, consistent with applicable. law, in 1 order to minimize obtrusiveness as viewed from 2.16 Location of Permitted Antennas. AvPermitted Antenna may be installed solely on the Owner's Lot and may not encroach upon any street, Common Area, or any other portion of the Property. A Permitted Antenna may. _be installed in a location on the Lot from which an
stalled solely on the Owner's Lot and may not encroach upon any street, Common Area, or any other portion of the Property. A Permitted Antenna may. _be installed in a location on the Lot from which an acceptable quality signal can be obtained and where- least visible from the street and the Property, other than the Lot. In order of preference; the locations of a Permitted Antenna which will be considered least visible by the Comumnittee’are as follow S: (a) Attached to the back of the residence constructed’ on the Lot, with no part of the Permitted Antenna any higher than the lowest point of the roofline and screened from view of adjacent Lots and the street; then eS (b) Attached to the side of the residence constructad ‘oni n the tot with no part of the Permitted Antenna any higher than the lowest point of the roofline atid screened from view of adjacent Lots and the street. woe The applicable Committee may, from time to time, modify, singin, or. supplement the rules regarding installation and placement of Permitted Antennas.
2.17 Signs. No sign of any kind may be displayed to the publi view on any ‘Lot without the prior written approval of the Committee, except for: (a) “For Sale” signs on a Lot placed thereon by the Owner of such Lot, and signs on Declarant-Owned Lots which are part of the Declarant’s overall marketing or construction plans I] AUSTIN_1 1673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 16 of 41 or activities for the Property; (b)"., permits as may be required by legal proceedings; ee) 2 permits as may be required by any governmental entity; aa (ay Bplitical signs may be erected provided the sign: (i) is erected no earlier than the
rmits as may be required by legal proceedings; ee) 2 permits as may be required by any governmental entity; aa (ay Bplitical signs may be erected provided the sign: (i) is erected no earlier than the 90% day. before: the:date of the election to which the sign relates; (ii) is removed no later than the 10" day’ after thé date of the election to which the sign relates; and (iii) is ground-mounted.
Only one sign may. be erected for each candidate or ballot item. In addition, signs which include any f the components or characteristics described in Section 202.009(c) of the Texas Property Code ‘are Prohibited 2% =e oe (e) ano “soliciting” sign near or on the front door to the residence constructed on the Lot, provided, that the sign not exceed twenty-five (25) square inches; and (f) a religious item on: nthe entry door or door frame of a residence (which may not individually or in vombinati ith. other religious items on the entry door or door frame of the residence, does not exceed twenty-five 23 square.) inches.
(g) Representatives of the sociation may remove any sign not otherwise permitted by this Section 2.17 or approved in advance by the Cornmnittee.
2.18 Tanks. Uniess installed by the Declarant i in 1 conjunction with development of the Property for residential purposes, the Committee must approve any tank used or proposed in connection with a single-family residential structure; including tanks for storage of fuel, water, oil, or LPG, and including swimming pool filter tanks... No elevated tanks of any kind may be erected, placed or permitted on any Declarant- Owned. Jot or Lot without the advance written approval of the Committee. All tanks must be screened sé as not to be visible from any other
ny kind may be erected, placed or permitted on any Declarant- Owned. Jot or Lot without the advance written approval of the Committee. All tanks must be screened sé as not to be visible from any other portion of the Property. This provision will not apply, to" a tank used to operate a standard residential gas grill. ria 2.19 Temporary Structures. No trailer (sales or constiuctiony; ‘tent, shack, or other temporary building, improvement, or structure may be placed upeh the Property without the prior written approval of the Committee; provided, however; _ that, femporary structures necessary for storage of tools and equipment, and for office space for architects, builders, and foremen during actual construction may be maintained with the prior approval of Declarant for Declarant-Owned Lots, approval to include the nature, size, duration}: aiid’. logation of such structure. Any outbuilding permitted hereunder may not be used for habitation; no window heating or air conditioning unit may be installed to serve any permitted outbuilding, arid ‘Ho utilities, including electricity, gas, cable, or telephone, may be extended to serve. any: permitted outbuilding. The Committee will be entitled to determine, in its sole and absolute discretion, whether an outbuilding constructed on any Lot complies with the foregoing requirements.
Notwithstanding anything to the contrary contained in this Declaration, Declarant shall be 12 AUSTIN_ 1 673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 1/ of 41 permitted to maintain sales and/or construction trailers.
2.20"... Unsightly_Articles; Vehicles. No article deemed to be unsightly by the
RATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 1/ of 41 permitted to maintain sales and/or construction trailers.
2.20"... Unsightly_Articles; Vehicles. No article deemed to be unsightly by the Committee shall be permitted to remain on any Lot so as to be visible from adjoining property or froni public, or private thoroughfares. Without limiting the generality of the foregoing, trailers; graders, trucks other than pickups, boats or other aquatic vehicles, tractors, campers, wagons; “buses;*-motorcycles, motor scooters, all terrain vehicles and garden maintenance equipment: shall be kept at all times, except when in actual use, in enclosed structures or screened from: “ieW"and no repair or maintenance work shall be done on any of the foregoing, or on any automobile (other fhan minor emergency repairs), except in enclosed garages or other structures. Notwithstanding, the forgoing provision, all terrain vehicles, motor scooters, and motorized mini-bijkés may ‘not be used on the Property or on any road or street within the Property. Lot Ownérs shall Tot ‘keep more than two (2) automobiles in such manner as to be visible from any other. portion, ‘of the Property for any period in excess of seventy-two (72) hours. Service areas, storage. aréas, compost piles shall be appropriately screened from view, and no lumber, grass, plant waste, shrub: or tree clippings, metals, bulk materials, scrap, refuse or ‘trash shall be kept, stored, Or allowetl to accumulate on any portion of the Property except other vehicles (including, without" Jimitation, motorcycles or motor scooters) which are inoperable or do not have a current license’ tag shall be permitted to remain visible on any Lot or to be parked on any roadway within the Property.
imitation, motorcycles or motor scooters) which are inoperable or do not have a current license’ tag shall be permitted to remain visible on any Lot or to be parked on any roadway within the Property.
Recreational vehicles, i.e., motor homes arid travel trailers, may not be parked or stored in such manner as to be visible from any othér portion of the Property for any period in excess of forty-eight (48) consecutive hours during ack three (3) month period.
No garage may be permanently enclosed or “otherwise used for habitation unless approved in advance by the Committee. 7 as ve 2.21 On Street Parking; Use of Common Aied. No. Vehicle may be parked on any road or street within the Property for more than twenty-four (24), hours unless in the event of an emergency. “Emergency” for purposes of the foregoing sentencé shall mean an event which jeopardizes life or property. “Parked” as used herein shall. Be defined as a vehicle left unattended by a licensed operator for more than thirty (30) cahsecutive: ‘minutes. Except as otherwise designated by Declarant or the Board, motor vehicles including, but not limited to, mini-bikes, snowmobiles and motorcycles, may not be driven on ‘the Semmon, Area by any Owner, occupant or guest.
2.22 Mobile Homes, Travel Trailers and Recreational Vehicles: Ne mobile homes any tume. ae 2.23 Basketball Goals; Permanent and Portable. Permanent basketball ‘gadis are not permitted to be placed on any Lot. Portable basketball goals are permitted. Basketball goals 13 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 18 of 41
rtable basketball goals are permitted. Basketball goals 13 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 18 of 41 must be properly maintained and painted, with the net in good repair. All basketball goals must be approved by the Committee prior to being placed on any Lot.
3, 24° ~ Compliance with Restrictions. Each Owner shall maintain their Lot and any and all: Improvements thereon in a safe, clean and sanitary manner and condition and in good order and fepair. Each Owner, Resident, and their family, occupants of a residence, tenants, and the: Euests, invitees, and licensees of the preceding must comply strictly with the provisions of the Restrictions, the Declaration and Bylaws as the same may be amended from time to time.
Failure to: comply with any of the Restrictions will constitute a violation of the Restrictions, may result ina fine against the Owner or Resident in accordance with Section 5.11 of this Declaration, and will give‘risé ta. a cause. of action to recover sums due for damages or injunctive relief, or both, maintainable- by, Deélafant, the Manager, the Board on behalf of the Association, the Committee, or by-an. aggrieved Owner. Without limiting any rights or powers of the Association, the Board, may” (but will not be obligated to) remedy or attempt to remedy any violation of any of the provisions ef Restrictions, and the Owner whose violation has been so remedied will be personally liable té- the-Association for all costs and expenses of effecting (or attempting to effect) such remedy. “The Association shall have the right (but not the obligation) Owner at least thirty (30) calendar’ days written, notice to cure any maintenance problems or
ting (or attempting to effect) such remedy. “The Association shall have the right (but not the obligation) Owner at least thirty (30) calendar’ days written, notice to cure any maintenance problems or deficiencies. In the event that the’ Association, exercises its right of entry for maintenance purposes, the Association shall have’ the right, td assess the particular Owner for the cost of such maintenance. The Association, by its Board, shall havé'the right to establish rules governing the maintenance of any Lot or Improvement. If such Owner fails to pay such costs and expenses upon demand by the Association, such costs, and. éxpénses (plus interest from the date of demand until paid at the maximum lawful rate, ‘or if there i is no such maximum lawful rate, at the rate of one and one-half percent (1-1/2%) per morith). will be assessed against and chargeable to the Owner's Lot(s). Any such amounts assessed and. chargeable against a Lot will be secured by the liens reserved in this Declaration for Assessments and 1 may be collected by any means provided in this Declaration for the collection of Assessments; provided, however, no such lien shall be subject to nonjudicial foreclosure. Each such Owner. wil indemnify and hold harmless the Association and its officers, directors, committee members, employees and agents from any cost, loss, damage, expense, liability, claim or cause of action v inadirred 0 or that may arise by reason of the Association’s acts or activities under this section. ° we 2.25 Liability of Owners for Damage to Common Area: No Ownei or Resident may in any way alter, modify, obstruct, add to, store items in or on or otherwise perform any work upon the Common Area without the prior written approval of the Board. Bach Owner and/or
i or Resident may in any way alter, modify, obstruct, add to, store items in or on or otherwise perform any work upon the Common Area without the prior written approval of the Board. Bach Owner and/or Resident will be liable to the Association for any and all damages to: (i) the Conimion:Area and any improvements constructed thereon; or (ii) any Improvements constructed on‘any Lot, the maintenance of which has been assumed by the Association, which damages’ were. <aised., by the neglect, misuse or negligence of such Owner, or the Owner's family, or by’any tenant or other occupant of such Owner's Lot, or any guest or invitee of such Owner or Resident. The full cost of all repairs of such damage may be levied as an Individual Assessment. / 14 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 19 of 41 2.26 No Warranty of Enforceability. The Declarant makes no warranty or representation as to the present or future validity or enforceability of any restrictive covenants, terms, OF- ‘provisions contained in the Declaration. Any Owner acquiring a Lot in reliance on one or more of such restrictive covenants, terms, or provisions will assume all risks of the validity and enforceability thereot and, by acquiring the Lot, agrees to hold Declarant harmless therefrom, ‘egeee 2. oF “No: Tennis or Recreational Courts; Playscapes. No tennis, recreational or sport courts shall be constructed on any Lot unless expressly approved by the Committee. The Committee” may: prohibit | the installation of a tennis, recreational or sport court on any Lot.
Playscapes or.any : similar recreational facilities may not be constructed on any Lot without the
. The Committee” may: prohibit | the installation of a tennis, recreational or sport court on any Lot.
Playscapes or.any : similar recreational facilities may not be constructed on any Lot without the advance written approval’ of the. Committee. The Committee may prohibit the installation of playscapes or similar recreational facilities on any Lot.
constructed upon any Lot- without the prior written approval of the Committee. Without limitation on the foregoing, rio Owner shall erect or permit to be erected on any Lot any fence, in-ground pool, tennis court: Or- ‘other. outdoor game court, storage shed or other exterior building, addition or improvement, -without the prior written consent and design approval of the Committee. No aboveground pools i inay | be erected or maintained at any time.
2.29 Use. All Lots, unless? dedicated to the. Association as Common Area, must be improved and used solely for single fatnily residential’ use, inclusive of one private garage, in accordance with Section 2.11 herein, for each’ residence constructed thereon, fencing and such other Improvements as are necessary or custorharily incident to residential use and that are in accordance with this Declaration. Each residénce- wathin’ the Property shall be occupied by no more persons than the maximum permitted by law. No-commercial, industrial, recreational or professional activity not permitted by the present , zoning, or other applicable laws or ordinances, shall be pursued on any Lot at any time. No Ovwijer;s shall permit his Lot to be used or occupied for any prohibited purpose. : “ 2.30 Rentals. Nothing in this Declaration will prevent the- rental of any Lot and the
d on any Lot at any time. No Ovwijer;s shall permit his Lot to be used or occupied for any prohibited purpose. : “ 2.30 Rentals. Nothing in this Declaration will prevent the- rental of any Lot and the Improvements thereon by the Owner thereof for residential put poses}. ‘provided that: (i) all rentals must be for terms of at least six (6) months; and (ii) no portion’ of a.Lot (other than the entire Lot) may be rented.. Regardless of whether or not expressed inthe applicable lease, all Owners shall be jointly and severally liable with the tenants of such. Lot, tothe Association for any amount which is required by the Association to effect such repaits or to ‘pay any claim for any injury or damage to property caused by the negligence of the tenant of such: L6t or for the acts or omissions of the tenant(s) of such Lot which constitute a violation of: or’ non-cdimpliance with, the provisions of the Restrictions All leases shall comply with and. be stibject ‘tothe provisions of the Restrictions and the provisions of same shall be deemed... “expressly incorporated into any lease of a Lot. This Section shall also apply to assignments and: tenewals of leases. Upon entering into an agreement for the lease of a Lot, an Owner shall provide written notice to the Board, or its designee, of the lease agreement and furnish the names of the 15 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 20 of 41 prospective tenant. The Board may require that the Owner deliver to the tenant, a copy of the Restrictions and obtain a written instrument executed by the tenant acknowledging receipt of the Restrictions which receipt will be provided to the Board..
e Owner deliver to the tenant, a copy of the Restrictions and obtain a written instrument executed by the tenant acknowledging receipt of the Restrictions which receipt will be provided to the Board..
2, 31 Alteration or Removal of Improvements. Any construction, other than normal mainteriance; “which in any way alters the exterior appearance of any Improvement or the removal of any’ ‘Improvement may be performed only with the prior written approval of the Committee: "Except as otherwise provided in Section 9.01 below, no Owner shall perform or permit to be performed any work to any portion of his Lot or Improvement, which work may require access 1d, over OF. through the Common Areas without the prior consent of the Committee except ; in: case of an emergency. No Owner shall perform or permit to be performed any work to any portion ‘of his Lat or Improvement, which work may require access to, over or through Lots not owned by. such Owner without the prior consent of the Lot Owner or the Committee except in‘ case of? an. emergency. Except as otherwise provided in Section 9.01 below, all such work may only: be. perfotined by a person who shall deliver to the Committee prior to commencement of such work, in f form salistactory to the Committee: (a) releases of the Board, Committee, and the Association for all claims that such person may assert in connection. with such work; (b) imdemnities of the Board, Cotiunittee, and the Association, holding each and all of them harmless from and against. any. <laims asserted for loss or damage to persons or property, including, but not limited to, Common Areas ¢ or other Lots; (c) certificates of msurance, including’ liability and workmen’s compensation coverage, in amounts and with companies reasonably acceptable to the Board; and
limited to, Common Areas ¢ or other Lots; (c) certificates of msurance, including’ liability and workmen’s compensation coverage, in amounts and with companies reasonably acceptable to the Board; and (d) = all other information and protections Which the Board may reasonably require.
2.32 Construction Activities. This Declaration thay not be construed so as to unreasonably interfere with or prevent normal construction, activities during the construction of Improvements by an Owner (including Declarant) upon any Lot within the Property. No such construction activities will be deemed to constitute a nuisance: or a violation of this Declaration by reason of noise, dust, presence of vehicles or constructiort machinery; posting of signs or similar activities, provided that such construction is pursued to’ completion with reasonable diligence and conforms to usual construction practices in the area’ _-If during the course of construction upon any Lot there is excessive accumulation of debris of any kind ‘which would render the Lot or any portion thereof unsanitary, unsightly, offensive, or: detrimental. to it or any other portion of the Property, then the Committee may contract for or causé Bitch débris to be removed, and the Owner of the Lot will be liable for all expenses incurred ‘in ‘connection therewith. oa 2.33 Clotheslines; Window Air Conditioners. No clotheslines and. no outdoor clothes drying or hanging shall be permitted within the Property, nor shall anything be hung, painted or displayed on the outside of the windows (or inside, if visible from the outside) or 16 AUSTIN_1 1673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 21 of 41
the windows (or inside, if visible from the outside) or 16 AUSTIN_1 1673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 21 of 41 placed on the outside walls or outside surfaces of doors of any of the residence, except holidayrelated items, and no awnings, canopies or shutters shall be affixed or placed upon the exterior walls or roots of residences, or any part thereof, nor relocated or extended, without the prior written \ corisent of the Committee. Window air conditioners are prohibited.
“gy 34." “Dumpin g. No portion of the Property shall be used or maintained as a dumping.
ground: for: ‘rubbish, trash, new or used lumber or wood, metal scrap, garbage or other waste, except that: such material may be kept in areas of the Property designated for this purpose by Declarant: (in, conriection with its construction) or by the Board, provided that these materials are kept in sanitary containers in a clean and sanitary condition. Owners shall place these containers for collection only, 4 ih the designated areas and only on the day these refuse materials are to be collected, Empty, cofitainers shall be removed promptly after collection.
2.35 Restriction. on Use af Common Area. The Board may prohibit or restrict the use of the Common Area. from: ‘time.to time, on a non-discriminatory basis, but only if such restriction is for safety or ‘compliance with law. Common Areas may only be used by Owners, their guests and invitees, unless: such use is approved in advance, in writing, by the Board.
"oe wu--ed!l WHITTIER HEIGHTS MAINT ENANCE ASSOCIATION, INC.
3.01 Organization. The “Association is a, nonprofit corporation created for the
approved in advance, in writing, by the Board.
"oe wu--ed!l WHITTIER HEIGHTS MAINT ENANCE ASSOCIATION, INC.
3.01 Organization. The “Association is a, nonprofit corporation created for the purposes, charged with the duties, “and vested” with the powers of a Texas non-profit corporation. Neither the Articles nor Bylaws will for any reason be amended or otherwise changed or interpreted so as to be inconsistent with this Declaration.
3.02 Membership.
(a) Any person or entity, upon becoming. an Owner will automatically become a Member of the Association. Membership will be appurtenant to and will run with the ownership of the Lot that qualifies the Owner thereof for thembership, and membership may not be severed from the ownership of the Lot, or in any way: transferred Pledged, mortgaged or alienated, except together with the title to such Lot. to (b) Within thirty (30) days after acquiring legal title to a Lot, each Owner must provide the Association with a copy of the recorded deed by which the Oivner has es acquired title to the Lot.
(c) Every Member will have a right and easement of enjoyment i in: vaind't to. all of ‘the Common Area and an access easement by and through any Common Area, which easements will be appurtenant to and will pass with the title to such Member's Lot, stibject to Section 3.02(b) above and subject to the following restrictions and reservations: ee 17 AUSTIN_ 1 1673126 v9 32918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 22 of 41 (i) The right of the Board to suspend the Member’s right to use the Common Area for any period during which any Assessment against such Member’s Lot remains past due and for any period during which
41 (i) The right of the Board to suspend the Member’s right to use the Common Area for any period during which any Assessment against such Member’s Lot remains past due and for any period during which such member is in violation of any provision of this Declaration; = fii) The right of the Board to dedicate or transfer all or any part - _ on of the Common Area to any public agency, authority or utility for any A oev ef purpose; - e. ™ : The right of the Board to make reasonable rules and _fegiilations regarding the use of the Common Area and any ~Enprevernients thereon; and (iv) ae The right of the Board to contract for services with any third parties on such terms as the Board may determine.
3.03 Governance. Until sixty, (60) days after the date this Declaration is recorded, the Board will consist of three (3). persons, each such person to be appointed by the Declarant. On or before the date that is sixty. (60)* days after the date this Declaration is recorded, the Declarant-appointed Board will <all.a--meeting.of the Members of the Association for the purpose of electing members to the. Board (the “First Member Election Meeting”). At the First Member Election Meeting, the existing. Board members appointed by the Declarant shall resign and the Board will be increased to five (5) persons ‘to Be elected at the Initial Member Election Meeting as follows: (i) two (2) Board members. will be elected with the Owners other than Declarant being allocated one (1) vote per ‘Lot: “and” the ‘Declarant being allocated one (1) vote (without regard to the number of Lots owned. by.- the -Declarant); and (ii) three (3) Board members will be elected with the Declarant being: allocated one (1) vote per Declarant-Owned
ed one (1) vote (without regard to the number of Lots owned. by.- the -Declarant); and (ii) three (3) Board members will be elected with the Declarant being: allocated one (1) vote per Declarant-Owned Lot and four (4) votes for all other Lots within the Propérty, and the Owners other than the Declarant being allocated one (1) vote per Lot. Each such person: elected to the Board will serve until the later to occur of two (2) years from the date of their election or until their successors are elected at the Second Member Election Meeting (defied below).
Within sixty (60) days after the expiration of two @. years after the First Member Election Meeting, the Board will call a meeting of the Menibers..of. the: Association for the purpose of electing replacement members to the Board (the ‘Second Member Election Meeting”). At the Second Member Election Meeting, the replacerent Board. members will be elected as follows: (a) four (4) Board members will be elected with the Owners (including the Declarant) being allocated one (1) vote per Lot; and (b) one (1) Board ineniber, will be elected with the Declarant being allocated one (1) vote per Declarant-Owned Lot ‘and ‘four (ay votes for all other Lots within the Property, and the Owners other than the Declarant beirig. allocated. one (1) vote per Lot. Of the four (4) Board members elected pursuant to Section 3.08 (a); two shall be elected for a term of one (1) year and two shall be elected for a term of two (2) years. The’ Board member elected pursuant to Section 3.03(b) (the “Declarant Board Member”) shall.serve until termination or expiration of the Development and Sale Period (the “Termination Date”).
18 AUSTIN_ 1673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
xpiration of the Development and Sale Period (the “Termination Date”).
18 AUSTIN_ 1673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 23 of 41 Within sixty (60) days after the Termination Date, the Board will call a meeting of the Members of the Association for the purpose of electing a replacement for the Declarant Board Member, which replacement will be elected for a term of two (2) years with each Lot being allocated one (1) vote for’ the. purpose of such election in accordance with Section 3.04.
* Notwitiistanding any provision in the Bylaws or this Declaration to the contrary, if a Board tHiémber § is‘replaced prior to the expiration of such Board member’s term, and such Board member was elected in accordance with Section 3.03(i) or Section 3.03(ii), the Board member may be replaced only ‘by the Board members who were elected in the same manner. For example, if the Board membér was elected pursuant to Section 3.03(ii) such Board member's replacement may only be appointed by, a thajority of Board members who were also elected in accordance with Section 3.03():" If the’ Board. member was elected in accordance with Section 3.03(b), such Board member niay be” replace .by the Declarant until expiration or termination of the Development and Sale Period. .
3.04 Voting Rights, “The e tight to cast votes and the number of votes which may be cast for election of members te the Board {except as provided by Section 3.03) and on all other matters to be voted on by thé Mémbers wall be calculated as set forth below.
(a} The Owner of each Lot will have one (1) vote for each Lot so owned. In the event of the consolidation of two (2) or Thore, Lots for] purposes of construction of a single residence
set forth below.
(a} The Owner of each Lot will have one (1) vote for each Lot so owned. In the event of the consolidation of two (2) or Thore, Lots for] purposes of construction of a single residence thereon, voting rights and Assessments will éontinue to be determined according to the number of original Lots contained in such consolidated Lot.
any Lot (not including the owner of only a “mineral interest, with or without surface rights related solely to the mineral interest), all such persons or:entities will be Members. The vote or votes (or fraction thereof) for such Lot will be exercised by the person so designated in writing to the Secretary of the Association by the Owner of ‘such Let; arid i in no event will the vote for such Lot exceed the total votes to which such Lot is otherwise entitled under this Section 3.04.
3.05 Powers. The Association will have the powets of a Texas nonprofit corporation.
It will further have the power to do and perform any and’ an acts. that may be necessary or Texas ¢ or this Declaration. Without in any way limiting the geherality- of the two preceding sentences, the Board, acting on behalf of the Association, will have’ the Following Powers at all times: (a) Rules and Bylaws. To make, establish and promulgate, and. irk its’ digeretion to amend from time to time, or repeal and re-enact, such rules, regulations, and. Bylaws not in conflict with this Declaration, as it deems proper, covering any and all aspects. of, the Propeity (including the operation, maintenance and preservation thereof) or the Association. Me (b) Insurance. To obtain and maintain in effect, policies of insurance ‘that, in the
ll aspects. of, the Propeity (including the operation, maintenance and preservation thereof) or the Association. Me (b) Insurance. To obtain and maintain in effect, policies of insurance ‘that, in the opinion of the Board, are reasonably necessary or appropriate to carry out the Association’s 19 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 24 of 41 functions.
(c¢)"-, Records. To keep books and records of the Association’s affairs, and to make such books: and records, together with current copies of the Restrictions available for inspection by, the Owners, Mortgagees, and insurers or guarantors of any Mortgage upon request during normal Business hours.
Ce “Assessments. To levy and collect assessments and to determine Assessment Units, as provided in Article 5 below.
(e) | : To enter at any time without notice in an emergency (or™ in the case ofa a Hon-emergency, after thirty (30) calendar days written notice), without being liable to ariy Owner or Resident, upon any Lot for the purpose of enforcing the Restrictions or for the purpose: ‘of maintaining or repairing any area, Improvement or other facility to conform to this Declaration or the Design Guidelines. The reasonable expense incurred by the Association. in connéction with the entry upon any Lot and the maintenance and repair work conducted thereén. or therein, will be a personal obligation of the Owner of the Lot so entered, and may be levied - ‘as’ ‘an- Individual Assessment. The Association will have the power and authority from time, to time, i in'its own name and on its own behalf, or in the name of and on behalf of any Owner who: eonsents, thereto, to commence and maintain actions and
will have the power and authority from time, to time, i in'its own name and on its own behalf, or in the name of and on behalf of any Owner who: eonsents, thereto, to commence and maintain actions and suits to enforce, by mandatory injunction’ or ‘otherwise, or to restrain and enjoin, any breach or threatened breach of the Restrictioris:" The Association is also authorized to settle claims, enforce liens and take all such action “As it may deem: necessary or expedient to enforce the Restrictions. The Association may not alter.-dr demolish any Improvements on any Lot other than Common Area in enforcing this Declaration. before'a judicial order authorizing such action has been obtained by the Association, or before: the Written consent of the Owner(s) of the affected Lot(s) has been obtained. er (f) Legal and_ Accounting Services. To retain- and’ ‘pay for legal and accounting services necessary or proper in the operation of the Association: (g) Conveyances. To grant easements, or ightéoF way in, on, Over, or under any following, to the extent consistent with the Restrictions: (1) Parks, parkways or other recreational facilities-or structures, (ii) Roads, streets, sidewalks, signs, street lights, walks, driveways, trails and paths; (iii) Lines, cables, wires, conduits, pipelines or other devices Ser utility | purposes; meee (iv) Sewers, water systems, storm water drainage systems, sprinkler systems and pipelines; and/or 20 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 25 of 41 (Vv) Any similar improvements or facilities.
Nothing set forth above, however, will be construed to permit use or occupancy of any
D DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 25 of 41 (Vv) Any similar improvements or facilities.
Nothing set forth above, however, will be construed to permit use or occupancy of any Improvemetit or other facility in a way that would violate applicable use and occupancy restrictions imposed by the Restrictions or by any governmental authority.
* Manager. To retain and pay for the services of a person or firm (the “Manager”), to manage se anid operate the Association, including its property, to the extent deemed advisable by the Board. Additional personnel may be employed directly by the Association or may be furnished by: ‘the> Manager. Each contract entered into between the Association and the Manager will. be: ‘terminable by the Association without cause upon sixty (60) days written notice to the Maiiager, . .T6..the* ‘extent permitted by law, the Board may delegate any other duties, powers and’ functiong t6~the Manager. THE MEMBERS HEREBY RELEASE THE ASSOCIATION AND THE: MEMBERS OF THE BOARD AND COMMITTEE MEMBERS FROM LIABILITY FOR ANY. OMISSION OR IMPROPER EXERCISE BY THE MANAGER OF ANY SUCH DUTY, POWER OR FUNCTION SO DELEGATED.
(i) Property Services! to: pay “for water, sewer, garbage removal, street lights, ane scaP ings gardening and all other utilities, services, repair and maintenance for the Common (j) Other Services and Piopetties” “To obtain and pay for any other property and services, and to pay any other taxes or assessments: that the Association or the Board is required or permitted to secure or to pay for pursuant.td applicable law (including the Texas Non-Profit Corporation Act) or under the terms of the Restrictions or as determined by the Board.
(k} Construction on Common Area. Toe construct new Improvements or additions to
w (including the Texas Non-Profit Corporation Act) or under the terms of the Restrictions or as determined by the Board.
(k} Construction on Common Area. Toe construct new Improvements or additions to any property owned, leased, or licensed by the Association, Subject to the approval of the Board. : (1) Property Ownership. To acquire and own real and peso property, including habitat, whether by grant, lease, easement, gift or otherwise.’ ; 3.06 Acceptance of Common Area, The Association. may y acquire, hold, and dispose of any interest in tangible and intangible personal property and real Pproperty:. Specifically, and not by way of limitation, Declarant shall transfer the Common Area, ‘described on Exhibit “A” attached hereto, to the Association contemporaneously with the execution’ of this Declaration by all parties, except that Declarant may reserve from such transfer and conveyahée an, undivided 50% interest in the mineral estate of the Common Area and may retain 50%, of allor any portion of the bonuses, rentals or royalty attributable to the mineral estate of the Gommen Area transferred and conveyed to the Association. Notwithstanding the foregoing, Declatant shail convey to the Association, and shall not retain, any of the executive rights in the inineral. estate of the Common Area. The Association will accept such transfers and conveyances,’- Transfer and conveyances of Common Area, other than the Common Area described on Exhibit “A” attached hereto, trom the Declarant to the Association must be approved by the Board.
21 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 26 of 41 3.07 Indemnification. To the fullest extent permitted by applicable law but without
-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 26 of 41 3.07 Indemnification. To the fullest extent permitted by applicable law but without duplication (and subject to) any rights or benefits arising under the Articles or Bylaws of the Association, the Association will indemnify any person who was, or is, a party, or is threatened to be ‘imadé a party to any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is, or was, a director, officer, cominittee member, employee, servant or agent of the Association against expenses, the best interests of the Association, or (2) with respect to any criminal action or proceeding, had no reasonable. cause to” believe his conduct was unlawful. The termination of any action, suit or proceeding by. settletnent; ‘or upon a plea of nolo contendere or its equivalent, will not of itself create a presumption. that the person did not act in good faith or in a manner which was reasonably believed ‘te be. in, or not opposed to, the best interests of the Association or, with respect to any criminal. action Or proceeding, had reasonable cause to believe that his conduct was unlawful. ‘N otwithstanding anything: in 1 this section 3. 07 or elsewhere in n the Restrictions to Evermore Corp., The David Bagivell Cottipany, David S. Bagwell, Susan Bagwell, William Dale Crane, Cindy Brazil, Taylor ‘Steele, “Or any employee or owner of Broadland Limited Partnership, Evermore Corp., The David. Bagwell Company, or any entity in which David S.
Bagwell, Susan Bagwell, William Dale‘Crane-Have an ownership interest (each and collectively,
Broadland Limited Partnership, Evermore Corp., The David. Bagwell Company, or any entity in which David S.
Bagwell, Susan Bagwell, William Dale‘Crane-Have an ownership interest (each and collectively, the “Bagwell Parties”), unless expressly. approved. iri advance and in writing by the Board after the date this Declaration has been recorded in the. Official Public Records of Tarrant County, Texas, and provided further that if any of the Bagwell. Parties is a Board member, such Board member may in no event cast a vote, or participate in, ‘any. such approval. Notwithstanding the foregoing sentence, the Board shall in no event have the:authority to consent to indemnify any of the Bagwell Parties for a period commencing on ‘thé date Declaration has been recorded in the Official Public Records of Tarrant County, Texas: inti the > expiration of 60 days thereafter, without the consent of 51% of the Members. | 3.08 Insurance. The Board may purchase and cause » to be maintained, at the expense of the Association, insurance on behalf of any person who is. acting. as a director, officer, committee member, employee, servant or agent of the Association against any liability asserted against him or incurred by him in any such capacity, or arisirig. out. of his status as such, whether or not the Association would have the power to indemnify him against such hability or otherwise. Be ee 3.09 Protection of Declarant‘’s Interests. Despite any assumption ‘of control of the Board by Owners other than Declarant, until the expiration or termination of the Development and Sale Period, the Board is prohibited from taking any action which would discriminate against Declarant, or which would be unreasonably detrimental to the sale of ‘Lots ‘owned by
of the Development and Sale Period, the Board is prohibited from taking any action which would discriminate against Declarant, or which would be unreasonably detrimental to the sale of ‘Lots ‘owned by Declarant. The Board will be required to continue the same level and quality of maintenance, operations and services as that provided immediately prior to assumption of control of the Board by Owners other than Declarant until the expiration or termination of the Development 22 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 2/ of 41 and Sale Period.
ARTICLE 4.
INSURANCE oes 61. “Insurance. Each Owner will be required to purchase and maintain commercially standard i insitraiiee on the Improvements located upon such Owner's Lot. The Association will not be required to maintain insurance on the Improvements constructed upon any Lot. The Associatiort may, however, obtain such insurance as it may deem necessary, including but not limited to ‘such. ‘Palicies of liability and property damage insurance as the Board, in its discretion, may deem: ‘necessary. Insurance premiums for such policies will be a common expense to be inchided. in. the.assessments levied by the Association. The acquisition of insurance by the Association will: be without prejudice to the right and obligation of any Owner to obtain additional individual ' jrisurance. During the Development and Sale Period, Declarant reserves the right to satisfy, the.insurance obligations of the Association with a master insurance program controlled by Declaratit, provided that the costs for such insurance shall not be a common expense included:in’ assesstnerits levied by the Association.
"oe wu--ed!l
on with a master insurance program controlled by Declaratit, provided that the costs for such insurance shall not be a common expense included:in’ assesstnerits levied by the Association.
"oe wu--ed!l 4.02 Restoration. In the eueRt of. any fire or other casualty, the Owner will promptly repair, restore and replace any damaged-or destroyed structures to their same exterior condition existing prior to the damage or destruction. thereof. Such repair, restoration or replacement will be commenced and completed in a “good. and workmanlike manner using exterior materials identical to those originally used in the Structures’ damaged or destroyed. To the extent that the Owner fails to commence such repair, restoration. or replacement of substantial or total damage or destruction within one hundred and twenty (120) days after the occurrence of such damage or destruction, and thereafter prosecute same‘to- eofnpletion, or if the Owner does not clean up any debris resulting from any damage within thirty (30} calendar days after written notice of such damage, the Association may commence, ‘complete: ‘or. effect such repair, restoration, replacement or clean-up, and such Owner will be personally liable to the Association for the cost of such work; provided, however, that if the Owner. is: ‘prohibited or delayed by law, novation or administrative or public body or triburial: ‘from. commencing such repair, Owner fails to pay such cost upon demand by the Association, ‘thé est thereof (plus ; interest from the date of demand until paid at the maximum lawful rate, of if there i iso such maximum lawful rate, than at the rate of one and one-half percent (112%) per. monthiy shall be levied against the Owner and the Owner’s Lot as an Individual Assessment. — ne
te, of if there i iso such maximum lawful rate, than at the rate of one and one-half percent (112%) per. monthiy shall be levied against the Owner and the Owner’s Lot as an Individual Assessment. — ne 4.03 Mechanic’s and Materialmen’s Lien. Each Owner whose stiiacture. is $ repaired, restored, replaced or cleaned up by the Association pursuant to the rights granted under this Article 4, hereby grants to the Association an express mechanic’s and materialmen’ 3 lién for the reasonable cost of such repair, restoration, or replacement of the damaged or destroyed Improvement to the extent that the cost of such repair, restoration or replacement exceeds any insurance proceeds allocable to such repair, restoration or replacement and delivered to the 23 AUSTIN_1 4673126 v9 52918-1319 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 28 of 41 Association. Upon request by the Board, and before the commencement of any reconstruction, repair, restoration or replacement, such Owner will execute all documents sufficient to effectuate Such mechanic's and materialmen’s lien in favor of the Association.
ARTICLE 5.
COVENANT FOR ASSESSMENTS 2. 01" “Assessments (a a) “Assessnients established by the Board will be levied against each Lot in accordance with, this Article 5.
(b) Each Owner of Aa. Lot by acceptance of a deed thereto, whether or not it shall be so expressed in each stich. deed -or.conveyance, shall be deemed to have covenanted and agreed to pay to the Association,. Assessments as set forth herein. Each Assessment, together with such interest thereon and costs of collection as hereinafter provided, shall be a charge on and a continuing lien against the ‘Lots’ upon, which each such Assessment is made. Each such
, together with such interest thereon and costs of collection as hereinafter provided, shall be a charge on and a continuing lien against the ‘Lots’ upon, which each such Assessment is made. Each such Assessment, together with interest. thereon and costs of collections thereof, including reasonable attorneys fees, shall also be the personal obligation of the Owner of the Lot assessed at the time the Assessment is made. The Association may enforce payment of such Assessments in accordance with the provisions of- this, Aiticle.. “Assessments liens may only be enforced by judicial foreclosure. ~ : 5.02 Maintenance Fund. The Board. will establish a maintenance fund into which will be deposited all monies paid to the Association and. from which disbursements will be made in performing the functions of the Association under. this Declaration. The funds of the Association must be used solely for purposes authorized by this Declaration or the Bylaws as they may from time to time be amended. are 9.03 Regular Annual Assessments. Prior to the ‘beginning of each fiscal year, the Board will estimate the expenses to be incurred by* the. ‘Association during such year in performing its functions and exercising its powers under’ this Declaration and the Bylaws, including, but not limited to, the cost of all management, repair, arid: maintenance, the cost of providing street and other lighting, the cost of administering and enforcing the covenants and restrictions contained herein, and will estimate the amount neéded to. maintain a reasonable provision for contingencies and an appropriate replacement resérve, and. will give due consideration to any expected income and any surplus from the prior ‘year's S fund. . Assessments
in a reasonable provision for contingencies and an appropriate replacement resérve, and. will give due consideration to any expected income and any surplus from the prior ‘year's S fund. . Assessments sufficient to pay such estimated net expenses will then be levied at the level of ‘Assessments set by the Board in its sole and absolute discretion, and the Board’s determination’ will be. final and binding so long as it is made in good faith. If the sums collected prove inadequate: for any reason, including nonpayment of any individual Assessment, the Association may.at any time, and from time to time, levy further Assessments in the same manner. All stich- regular Assessments will be due and payable to the Association quarterly on or before the, first day of each calendar quarter beginning January 1* of each year, or in such other manner as the Board 24 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 29 of 41 may designate in its sole and absolute discretion.
N otwithstanding the foregoing or anything to the contrary contained herein, in no event shall the Board. i increase the Assessments for any calendar year by an amount in excess of ten percent (10%) ofthe amount of the Assessments charged to Owners of a Lot in the immediately precedinig, calendar year.
5, 04 “Spécial Assessments. In addition to the regular annual Assessments provided for above, the. Board may levy special Assessments whenever in the Board’s opinion such special Agséssménts. are necessary to enable the Board to carry out the functions of the Association. under, this Declaration. The amount of any special Assessments will be at the
Board’s opinion such special Agséssménts. are necessary to enable the Board to carry out the functions of the Association. under, this Declaration. The amount of any special Assessments will be at the reasonable discretion, of the’ Board. In addition to the special Assessments authorized above, the Association may, int any. fiscal year, levy a special Assessment applicable to that fiscal year only for the purpose: of- defraying, in whole or in part, the cost of any construction, reconstruction, repair, or ‘replacement of a capital improvement upon the Common Area. Any special Assessment levied by’ the Association will be levied against all Owners based on Assessment Units. : OO ee i. eee 5.05 Individual Assessment = Th addition to any other Assessments, the Board may levy an Individual Assessment ; -agaihst arr Owner and the Owner’s Lot. Individual Assessments may include, but aré:not- limited fo: interest, late charges, and collection costs on delinquent Assessments; reimbursement for costs incurred in bringing the Owner's Lot into compliance with the Declaration; finés for violations ‘of the Declaration; transfer-related fees and resale certificate fees; fees for estoppel letters and project documents; insurance deductibles; reimbursement for damage or Waste catised by willful or negligent acts of the Owner, Owner's guests, invitees or residemrts--of- the ‘Owner's Lot; common expenses that benefit fewer than all of the Lots, which may be assessed according to benefit received; fees or services to Lots provided through the Association and which are re equitably paid by each Lot according to the benefit received. E .
services to Lots provided through the Association and which are re equitably paid by each Lot according to the benefit received. E .
5.06 Amount of Assessment. Each Lot shall constitite’ one e “Assessment Unit’. The Sections 5.03 and 5.04 shall be levied uniformly against each Assegement Unit allocated to a Lot.
5.07 Late Charges. If any Assessment is not paid by the ‘due date applicable thereto, the Owner responsible for the payment may be required by the Board: at the Board’ s election at any time and from time to time, to pay a late charge in such amount. as the. Board may designate, and the late charge (and any reasonable handling costs) will, be levied as an Individual Assessment against the Lot owned by such Owner. Met a 5.08 Owner's Personal Obligation for Payment of Assessments. Asséssments'lévied as provided for herein will be the personal and individual debt of the Owner of the Lot against which are levied such Assessments. No Owner may exempt himself from liability for such 25 AUSTIN_I 4673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 30 of 41 Assessments. In the event of default in the payment of any such Assessment, the Owner of the Lot will be obligated to pay interest on the amount of the Assessment at the highest rate allowed by applicable usury laws then in effect on the amount of the Assessment from the due date.therefor for if there is no such highest rate, then at the rate of 1 and 1/2% per month), gether with ali costs and expenses of collection, including reasonable attorneys fees.
5. to" " Assesoment Lien. The payment of all sums assessed in the manner provided in
te of 1 and 1/2% per month), gether with ali costs and expenses of collection, including reasonable attorneys fees.
5. to" " Assesoment Lien. The payment of all sums assessed in the manner provided in this Article’ is, together with late charges as provided in Section 5.07 and interest as provided in Section 5. 08 heteof and all costs of collection, including attorney's fees as herein provided, secured by the cofitinuing , Assessment lien granted to the Association pursuant to Section 5.01(b) above, and will bind. ach, Lot in the hands of the Owner thereof, and such Owner's heirs, devisees, personal representatives, successors or assigns. The Assessment lien provided for herein shall be subordinate to ‘the lien of any mortgage or mortgages now or hereafter placed upon a Lot subject to. Assessment. The Association will have the power to subordinate the aforesaid Assessment lien to any Other lien. Such power will be entirely discretionary with the Board, and such subordination’ t may be signed by an officer of the Association. The Association may, at its option and withut prejudice t té the priority or enforceability of the Assessment lien waueed ll unpaid indebtedness, the name of. the: Qumer of the Lot covered by such lien and a description of the Lot. Such notice may be signed by’ one of the officers of the Association and will be recorded in the Official Public Records-af Tarrant County, Texas. Each Owner, by accepting a deed or ownership interest to a Lot stibject to this Declaration will be deemed conclusively te have granted a power of sale to the Association to.secure and enforce the Assessment lien granted hereunder. The Assessment liens arid rights. td foreclosure thereof will be in addition to
lusively te have granted a power of sale to the Association to.secure and enforce the Assessment lien granted hereunder. The Assessment liens arid rights. td foreclosure thereof will be in addition to and not in n substitution of any other rights and remedies the Association may have by law and Owner personally obligated to pay the Assessment dnd: Jor for foreclosure of the aforesaid lien judicially. Assessments liens may only be enforced by- judicial foreclosure. In any foreclosure proceeding, such Owner will be required to pay the césts, expenses and reasonable attorney's fees incurred. The Association will have the power fo. bid (in cash or by credit against the amount secured by the lien) on the property at foreclosure or. othe? legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with the same; Upon. the.written request of any Mortgagee, the Association will report to said Mortgagee any’ unpaid: Assessments remaining unpaid for longer than thirty (30) days after the same are due. The- ‘lien. hereunder will not be affected by the sale or transfer of any Lot; except, however, that in. the ‘everit of foreclosure of any first-lien Mortgage securing indebtedness incurred to acquire such, Lot, the lien for any Assessments that were due and payable before the foreclosure sale will, be. extinguished, provided that past-due Assessments will be paid out of the proceeds of suck foreclosure sale only to the extent that funds are available after the satisfaction of the indebtédness- secured by the first lien Mortgage. The provisions of the preceding sentence will not, however, felieve any subsequent Owner (including any Mortgagee or other purchaser at a foreclosure’ sale}. from
- secured by the first lien Mortgage. The provisions of the preceding sentence will not, however, felieve any subsequent Owner (including any Mortgagee or other purchaser at a foreclosure’ sale}. from paying Assessments becoming due and payable after the foreclosure sale. Upon payment of all sums secured by a lien of the type described in this Section 5.09, the Association will upon the 26 AUSTIN_1 1673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 31 of 41 request of the Owner execute a release of lien relating to any lien for which written notice has been filed as provided above. Such release will be signed by an officer of the Association.
Except as otherwise provided by applicable law, the sale or transfer of a Lot will not relieve the Owner of. ‘uch: Lot or such Owner's transferee from liability for any Assessments thereafter becoming, dite ot from the lien associated therewith. If an Owner conveys its Lot and on the date of such” conveyance Assessments against the Lot remain unpaid, or said Owner owes other sums or “fees urider this Declaration to the Association, the Owner will pay such amounts to the Association. out of the sales price of the Lot, and such sums will be paid in preference to any other charges against the Lot other than a first lien Mortgage or Assessment Liens and charges in favor of the State. of Texas or a political subdivision thereof for taxes on the Lot which are due and unpaid. “The. Owner conveying such Lot will remain personally liable for all such sums until the same are‘fully’ paid, regardless of whether the transferee of the Lot also assumes the obligation to pay stich aMOUnss, 10 Exempt Propérty. f Pia The Common Area will be exempt from the Assessments
he same are‘fully’ paid, regardless of whether the transferee of the Lot also assumes the obligation to pay stich aMOUnss, 10 Exempt Propérty. f Pia The Common Area will be exempt from the Assessments provided for in this Articles mw 5.11 Fines and Dainagies ‘Asiessment The Board may assess fines against an Owner for violations of any restriction set. forth in this Declaration, the Design Guidelines, or any rules adopted by the Board which have been ‘committed by an Owner, an occupant of the Owner's Lot, or the Owner or occupant’s faniiily, guests, employees, contractors, agents or invitees. Any fine and/or charge for damage levied in. accordange* with this section will be considered an Individual Assessment. Each day of violation. may., be.considered a separate violation if the violation continues after written notice to the Qwner. Fhe Board may assess damage charges _against an Owner for pecuniary loss to the Association from property damage or destruction of Common Area or any facilities located by the Oiwrier, or fhe Owner's family, guests, agents, occupants, or tenants. The Board and any Mariager. will have authority to send notices to alleged violators, informing them of their violations and askirig them to comply with the rules and/or informing them of potential or probable fines ¢ Or damage a assessments. The Board may from time to time adopt a schedule of fines. rr (a) the Association, acting through an officer, Board ember Or. : Manager, must give the Owner notice of the fine or damage charge not later than thitty 9) days after the assessment of the fine or damage charge by the Board; a : (b) the notice of the fine or damage charge must describe the evilatione or damage: (c) the notice of the fine or damage charge must state the amount of the fine, or
or damage charge by the Board; a : (b) the notice of the fine or damage charge must describe the evilatione or damage: (c) the notice of the fine or damage charge must state the amount of the fine, or damage charge; - nS (d) the notice of a fine or damage charge must state that the Owner will have thirty (30) days from the date of the notice to request a hearing before the Board to contest the fine or damage charge; and 27 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 32 of 41 (e) the notice of a fine must allow the Owner a reasonable time, by a specified date, to cure the violation (if the violation is capable of being remedied) and avoid the fine unless the Owner was given notice and a reasonable opportunity to cure a similar violation within the preceding Six <9), months.
: “Fine, afd/or damage charges are due immediately after the expiration of the thirty (30) day period. for réquesting a hearing. If a hearing is requested, such fines or damage charges will be due immédiately after the Board’s decision at such hearing, assuming that a fine or damage charge of some ariotint i is confirmed by the Board at such hearing.
The payinent, of each fine and/or damage charge levied by the Board against the Owner of a Lot is, together: with interést as provided in Section 5.08 hereof and all costs of collection, including attorney’s” fees as hérein provided, secured by the lien granted to the Association pursuant to Section 3. 01(b) of this” Declaration. Unless otherwise provided in this section, the fine and/or damage charge | will be. considered an Assessment for the purpose of this Article, and will be enforced in accordance with the. terms and provisions governing the enforcement of
ction, the fine and/or damage charge | will be. considered an Assessment for the purpose of this Article, and will be enforced in accordance with the. terms and provisions governing the enforcement of assessments pursuant to this Article 5.
"oe wu--ed!l ARTI CLE 6, COMMITTEE 6.01 Construction of Improvements. No Improvement may be erected, placed, constructed, painted, altered, modified-or remodeled” on any Lot, without the prior written approval of the Committee. Oe 6.02 Establishment of the ACC and the Commit i tes: (a) Initial Appointment. There shall: ‘initially’ ‘be two (2) architectural control committees: a Declarant-appointed architectural cohtrol éomumittee (the “Toll Committee”) and an architectural control committee (the “ACC”). The. Toll, Committee will have the sole authority to review and approve or deny Improvements | and. adopt Design Guidelines on all Declarant-Owned Lots. The ACC will have the sole authority, {6 review and approve or deny plans and specifications related to the construction and/or: installation: of Improvements and adopt Design Guidelines on all Lots other than the Declarant- -Owried, Lots.’ :When referenced in this Declaration, the “Committee” shall mean and refer to (i) the Toll. Committee with respect to the construction and/or installation of Improvements on all Declarant-Owned, Lots and (ii) the ACC with respect to construction and/or installation of Improvements: on ‘all Lots other than the Declarant-Owned Lots. The Toll Committee shall be comprised of three (3); members selected by Declarant. Declarant’s right to appoint members of the Toll Committee. will automatically expire upon the expiration of the Development and Sale Period. The ACC shiall be-established
mbers selected by Declarant. Declarant’s right to appoint members of the Toll Committee. will automatically expire upon the expiration of the Development and Sale Period. The ACC shiall be-established by the Board and shall be comprised of three (3) members appointed by the Board. If the Board fails to establish the ACC, the Board may perform all of the functions of the ACC*hereurider.
Upon expiration of the Development and Sale Period, the Toll Committee, without further act of the Board or Declarant, shall cease to exist and the ACC shall be the Committee for all purposes 28 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 33 of 41 of this Declaration. The Toll Committee and the ACC will each provide the other with copies of approvals and variances granted by each such Committee within thirty (30) days after such approvals or variances have been granted.
tb). * Term and Subsequent Appointments. The members of the Toll Committee shall serve until they resign or are removed by the Declarant, which the Declarant may do at any time? The. rriembers of the ACC shall serve for 24 months. Appointments to the Committee shall be made by” the Declarant in the case of the Toll Committee, and the Board in the case of the ACC, in atécordance with Section 6.02(a) above. The Committee may engage the services of a third party tovreview plans and specifications pursuant to this Article.
(c) (Compensation: Fée for Review. No member of a Committee shall be entitled to compensation for-its services! provided that the Committee may charge a reasonable fee (no more than $200.00 per submissiany to cover its costs in reviewing any plans and inspecting a Lot
entitled to compensation for-its services! provided that the Committee may charge a reasonable fee (no more than $200.00 per submissiany to cover its costs in reviewing any plans and inspecting a Lot and/or Improvements .constfucted, thereon, which fee shall be paid by an Owner to the Association at the time of stibmission of plans to the Committee for review and approval. No additional fee may be charged for’ te-submissions of plans previously submitted to the 6.03 Approval Process.2 "7 (a) Submission _of Plans.’ Any paity wishing to construct a residence, accessory building or other structure on a Lot~shall submit fwo (2) copies of complete plans and specifications to the Committee for its approval prior: to commencing construction. Such plans and specifications shall include engineering... information, landscaping description, and construction plans showing the location and: elevations’ ‘ef the proposed residence, accessory building or other structure and the materials to be ‘used in constructing the same, all in sufficient detail to enable the Committee to evaluate the proposed residence, accessory building or other structure. The Committee may request additional: information, including samples of proposed materials to aid it in its decision process. After receipt of.a complete set of plans and specifications, the Committee shall promptly review the’ sarrie- and. notify the Owner submitting whether it approves the plans or whether it requires changes. thereto. Alternately, the submitting, accompanied by a statement of the reasons for disapproval No construction shall be commenced on any portion of any Lot within the Property unless and until the plans for the
ternately, the submitting, accompanied by a statement of the reasons for disapproval No construction shall be commenced on any portion of any Lot within the Property unless and until the plans for the residence, accessory building or other structure in question has been approved i im: vwriting by the Committee. 8 (b) Time for Review/Approval. The Committee shall approve: or ‘disapprove all plans properly submitted to it for construction within twenty (20) days after’ the date if'receivies a complete set of plans and specifications therefore, if the Committee fails to ‘specifically approve or disapprove of any plans within such twenty (20) day period, then the Coiminittee shall be deemed to have approved the plans submitted. The affirmative vote of a majority of the members of the Committee shall constitute approval of such Committee.
29 AUSTIN 1 \073126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 34 of 41 (c) Design Guidelines/Building Standards. The Committee may, but is not required to, from time to time, establish specific guidelines and building standards (collectively, the “Design. Guidelines’ ’) to assist Owners in determining the type of residence, accessory building or other sttucture, improvement, modification, or alteration which may be constructed on a Lot within the Propérty. The Committee may amend or modify such Design Guidelines from time to time ‘in its.sqle discretion. Such Design Guidelines shall supplement this Declaration and shall be getieral guides to permitted construction within the Property, but shall not diminish the authority. of the Committee to approve plans as otherwise herein provided. Notwithstanding
ration and shall be getieral guides to permitted construction within the Property, but shall not diminish the authority. of the Committee to approve plans as otherwise herein provided. Notwithstanding any provision. 6 ‘the contrary in the Declaration, the Committee may issue an approval to builders for the: construction. of residences and associated improvements based on the review and approval of plari types: and adopt a procedure which differs from the procedures for review and approval set forth i in nthe Declaration, (d) Failure _ 0 “Obiain “Approval. The construction, replacement, installation, or placement of any residefice; accessory building or other structure of any type on a Lot without the prior written approval {or deemed approval) from the Committee shall constitute grounds for the imposition by the Conimittee-< or. the Association of an automatic fine against the Owner of said Lot not to exceed Fifty and No/100. Dollars ($50.00) per day (charged in accordance with Section 5.05 of the Declaration), commencing | upon the date on which the unapproved construction, replacement, installatiori or ‘placement commenced and continuing until the earlier of the date on which such Ownet has either (i) obtained Committee approval (or deemed approval) of such or construction, replacement, installation or placement of the offending residence, accessory building(s) or other structute(s); or (ii) removed such offending residence, accessory building(s) or other structure(s) and restoréd its Lot to substantially the same condition as existed prior to commencement: of such: onstruction, replacement, installation or placement thereof. A fine levied under this Section shall. be. charged to the Owner’s assessment
the same condition as existed prior to commencement: of such: onstruction, replacement, installation or placement thereof. A fine levied under this Section shall. be. charged to the Owner’s assessment account, payable upon demand and secured by the Assessnient Lien created in this Declaration.
mv a (e) Limitation of Liability. Neither the Declarant, its officers, directors, partners, agents, employees, representatives, parent or subsidiaries; nor the Association, its directors, officers, agents, employees, or representatives nor any . -Commnittee, including any of its respective members, shall be liable to any person or entity’ for” any’ Official act of an applicable Committee in connection with submitted plans and specifications, Notwithstanding any approval by the Declarant or the Committee, neither Declarant’ nora Committee shall be responsible or liable to any person or entity with respect to any loss, liability, claim or expense which may arise by reason of such approval or the construction‘ of-a- residence, accessory building or other structure on a Declarant-Owned Lot. Neither Declarant, the: Association, the Board, the Committee shall be responsible in any way for any defects * in. any. plans or specifications submitted, reviewed or approved in accordance with the- provisions of this Declaration, nor for any structural or other defects in any work done according. 18) ‘suchyplans ¢ Or specifications. No approval of any plans by either the Committee or Declarant shall be construed to mean that the plans comply with any applicable law, building: code, or governmental regulation, it being the responsibility of the Owner submitting any plans to assure compliance with all applicable laws, Conversely, the issuance of a building permit or 30
ding: code, or governmental regulation, it being the responsibility of the Owner submitting any plans to assure compliance with all applicable laws, Conversely, the issuance of a building permit or 30 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 35 of 41 any approval from any governmental authority shall not, under any circumstance, constitute any evidence that construction of a residence, accessory building or other structure complies with the férms and conditions contained in this Declaration or the Design Guidelines. Neither Declarant, ‘members of a Committee shall have liability for decisions made by them regarding the approval or disapproval of plans, so long as the decisions are made in good faith and are not. discriminatory, arbitrary, « or capricious fe "Variances. The Committee may grant variances from compliance with select provisions of the Design Guidelines or this Declaration, including but not limited to restrictions upon the height, size, shape, placement of structures, building envelopes, colors, or materials; provided, however, rig. variance may be approved that changes the use of a Lot to a use other than for single family resideritial use. All variances must be evidenced in writing and must be signed by at least a tajority. Of the members of the Committee. Notwithstanding the foregoing provision, the Comimittee - ‘nay “only grant a variance to the minimum square footage requirements set forth in Section 2:09, and the percentage masonry requirements in Section 2.10, if the variance is no more than 10% of minimum square footage and masonry requirements set forth in such sections. If a variance’ isgfanted, no violation of the covenants, conditions, or
Section 2.10, if the variance is no more than 10% of minimum square footage and masonry requirements set forth in such sections. If a variance’ isgfanted, no violation of the covenants, conditions, or restrictions contained in this’ Bedlaration, or the Design Guidelines will be deemed to have occurred with respect to the matter for “which the variance was granted. The granting of such variance will not operate to waive, of amend any of the terms and provisions of this Declaration or the Design Guidelines for any ‘purpose .except as to the particular property and in the particular instance covered by the Variance, and.such variance will not be considered to establish a precedent for any future waiver, .Modification, or amendment of the terms and provisions of this Declaration or the Design- Guidelines. : ARTICLE. ak MORTGAGE PROVISIONS S wt | eetIL and address of such holder, insurer, or guarantor and the street: address of the Lot to which its Mortgage relates (thereby becoming an “Eligible Mortgage Holder’) will be entitled to timely written notice of: ie .
(a) Any condemnation loss or any casualty loss which affects a~ -inaterial portion of the Property or which affects any Lot on which there is an Eligible Mortgage: held, insured, or guaranteed by such Eligible Mortgage Holder; at ot os (b) Any delinquency in the payment of assessments or charges owed for’ a ‘Lot subject to the Mortgage of such Eligible Mortgage Holder, where such delinquency has continued for a period of sixty (60) days, or any other violation of the Restrictions relating to 31 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 36 of 41 such Lot or the Owner or occupant which is not cured within sixty (60) days; or
2918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 36 of 41 such Lot or the Owner or occupant which is not cured within sixty (60) days; or (c}"".. Any lapse, cancellation, or material modification of any insurance policy maintained ty the Association.
703. ~fxamination of Books. The Association will permit Mortgagees to examine the books.ard Fecordls of the Association during normal business hours.
03 “Taxes, Assessments and Charges. All taxes, assessments and charges that may become liéns’ ptior to first lien mortgages under applicable law will relate only to the individual Lots and not to any e other: Portion of the Property.
ee er » 48 oat eats ARTICLE 8.
. aa wy ». GENERAL PROVISIONS 6.01 ‘Term. ‘The 4ering, ‘covenants, conditions, restrictions, easements, charges, and liens set out | m this Declaration will run n with and bind the Property, and will inure to the benefit respective legal representatives,’ heirs, successors, and assigns, for a term beginning « on the date this Declaration is recorded in’ the ‘Official Public Records of Tarrant County, Texas, and continuing through and including, January, A; 2061, after which time this Declaration will be automatically extended for successive “periods of ten (10) years unless a change (the word “change” meaning a termination, or change of tern or-tenewal term) is approved by Members entitled to cast at least eighty percent (80%). of the, number of votes entitled to be cast by members of the Association; provided, however, ‘that such change will be effective only upon the recording of a certified copy of such resolution i in-the Official Public Records of Tarrant County, Texas. Notwithstanding any provision, in. this Section 8.01 to the contrary, if any
e only upon the recording of a certified copy of such resolution i in-the Official Public Records of Tarrant County, Texas. Notwithstanding any provision, in. this Section 8.01 to the contrary, if any provision of this Declaration would be unlawful, void; or. voidable by reason of any Texas law restricting the period of time that covenants on land. Titay. be: enforced, such provision will expire twenty one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. Sel gee 8.02 Eminent Domain. In the event the Association holds.title to the Common Area and it becomes necessary for any public authority to acquiré- all or.any part of the Common Area for any public purpose during the period this Declaration is“in effect, the Board is hereby authorized to negotiate with such public authority for such — acquisition, and to execute instruments necessary for that purpose. Should acquisitions by ‘eminent. domain become necessary, only the Board need be made a party, and in any event the proceeds received will be held by the Association for the benefit of the Members. In the event any protéeds attributable to acquisition of Common Area are paid to Members, such payments will be allocated on the basis of Assessment Units and paid jointly to the Members and the holders of first Mortgages or deeds of trust on the respective Lot.
8.03. Amendment. During the Development and Sale Period, this Declaration may be amended by the affirmative vote of 51% of Lot Owners, provided the Declarant approves any 32 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 3/ of 41 such amendment.
rs, provided the Declarant approves any 32 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 3/ of 41 such amendment.
Frornand after termination of the Development and Sale Period, this Declaration may be amended at any time by the recording in the Official Public Records of Tarrant County, Texas, of an instrument executed and acknowledged by the president and secretary of the Association setting: forth ‘the amendment and certifying that such amendment has been approved by Members erititled. to cast at least sixty-seven percent (67%) of the number of votes entitled to be cast by Menibers ot the Association.
8. oa" "Enforcement, During the Development and Sale Period, the Association or Declarant, in the event the Association fails to act after 15 calendar days of receiving notice from Declarant to act; will have. “the. right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, charges and other terms now or hereafter imposed by the provisions ‘oF this Declaration. Failure to enforce any right, provision, covenant, or condition granted by. this, Declaration will not constitute a waiver of the right to enforce such right, provision, covenants or condition i in. the future.
8.05 Higher Authority: The térms and provisions of this Declaration are subordinate to federal and state law, and local, ordinances. Generally, the terms and provisions of this Declaration are enforceable to the exteitt they. ‘do not violate or conflict with local, state, or federal law or ordinance. os | 8.06 Severability. If any provision of this Declaration is held to be invalid by any
e enforceable to the exteitt they. ‘do not violate or conflict with local, state, or federal law or ordinance. os | 8.06 Severability. If any provision of this Declaration is held to be invalid by any court of competent jurisdiction, such invalidity will riot affect the validity of any other provision of this Declaration, or, to the extent permitted bay applicable law, the validity of such provision as applied to any other person or entity. . a 8.07 Conflicts. If there is any conflict between the provisions of this Declaration, the Articles, the Bylaws, or any rules and regulation’ ‘adopted pursuant to the terms of such documents, the provisions of this Declaration will govern.
8.08 Gender. Whenever the context so requires, al words herein in the male gender will be deemed to include the female or neuter gender, all- singular words will include the plural, and all plural words will include the singular. Mee 8.09 Damage and Destruction.
(a) Promptly after damage or destruction by fire or other castalty’ te ail or any part of the Common Area covered by insurance, the Board, or its duly authorized” agent, will proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair of the damage. Repair, as used in this Section 8.10(a), means repairing or restoring the Common Area to substantially the same ‘cofidition as existed prior to the fire or other casualty.
(b) Any damage to or destruction of the Common Area will be repaired unless a 33 AUSTIN 14673126 v9 52918-19 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 38 of 41 majority of the Board decides within sixty (60) days after the casualty not to repair. If for any
EIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 38 of 41 majority of the Board decides within sixty (60) days after the casualty not to repair. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, ‘or reliable and detailed estimates of the cost of repair, or both, are not made available. to the Association within said period, then the period will be extended until such information’ will ‘be made available.
~t ° “Ta the event that it should be determined by the Board that the damage or destruction” of ‘the Common Area will not be repaired and no alternative Improvements are authorized; ‘theia: ‘thé affected portion of the Common Area will be restored to its natural state and maintainéd, as an undeveloped portion of the Common Area by the Association in a neat and attractive coridition.
a i (d) If insurance ce proceeds are paid to restore or repair any damaged or destroyed Common Area, and’ such _protéeds are not sufficient to defray the cost of such repair or restoration, the Board will. levy. a, Special Assessment, as provided in Article 5, against all Owners. Additional Asséssments may pe made | in like manner at any time during or following the completion of any repair. ! | (e) In the event that any. proceeds of insurance policies are paid to Owners as a result of any damage or destruction: ¢o-any Common Area, such payments will be allocated based on Assessment Units and paid jointly to thé Owners and the holders of first Mortgages or deeds of trust on their Lots. - : (f) In the event that any proceeds’ of. insurance policies are paid to Owners, such payments will be allocated based on Assessment, Units: and will be paid jointly to the Owners
ust on their Lots. - : (f) In the event that any proceeds’ of. insurance policies are paid to Owners, such payments will be allocated based on Assessment, Units: and will be paid jointly to the Owners and the holders of first Mortgages or deeds of trust. on their Lots.
8.10 Notices. Any notice permitted or required, to be given to any person by this Declaration will be in writing and may be delivered efthér personally or by certified U.S. mail, return receipt requested. If delivery is made by mail, it will be deemed to have been delivered on the third (3rd) day (other than a Sunday or legal holiday), after.a copy of the same has been deposited in the United States mail, postage prepaid, addtesséd- to_the person at the address given by such person to the Association for the purpose of service. ob n riotices. Such address may 8.11 View Impairment. Neither Declarant nor the Association quafantee or represent that any view over and across the Lots, or any open space within the Property, will be preserved without impairment. Declarant and the Association shall have no obligation. to relocate, prune, or thin trees or other landscaping. The Association (with respect to any. .Cobimion: ‘Area) will have the right to add trees and other landscaping from time to time, subject’ to. ‘applicable. law.
There shall be no express or implied easements for view purposes or for the Passage of ight and air. : 34 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 39 of 41 ARTICLE 9.
EASEMENTS 9, OL: ” Right of Ingress and Egress. Declarant, its agents, employees and designees will have a: tight: Gf i ipigress and egress over and the right of access to the Common Area to the extent
ASEMENTS 9, OL: ” Right of Ingress and Egress. Declarant, its agents, employees and designees will have a: tight: Gf i ipigress and egress over and the right of access to the Common Area to the extent netessary in. connection with the construction and development of Declarant-Owned Lots.
9. 02. “Reserved Easements. All dedications, limitations, restrictions and reservations shown on the Plat. and all grants and dedications of easements, rights-of-way, and related rights made prior’to. the- recording of this Declaration are incorporated herein by reference and made a part of this Declaration for all purposes as if fully set forth herein, and will be construed as being adopted iiiéach and: every: contract, deed or conveyance executed or to be executed by or on behalf of Declarant. _ “set ' -"h . .
9.03 Easements: " " Declarant and the Association hereby reserves unto itself a perpetual non-exclusive. éasement’ over and across the Property for: (i) the installation, operation and maintenance of. utilities’ and associated infrastructure to serve the Property; (ii) the installation, operation and.- ‘maintenance of cable lines and associated infrastructure for sending and receiving data and/or: other electronic signals, security and similar services to serve the Property; and (iii) the installation;- Opération and maintenance of, walkways, pathways and trails, drainage systems, street lights and. signage to serve the Property. The exercise of the easement reserved herein will not é&Xtend.. to permithing entry into any residence, nor will it unreasonably interfere with the use of any hot or Tesidence or Improvement constructed thereon. : woR ARTICLE-10.° ~SPECIAL DECLARANT RIGHTS
end.. to permithing entry into any residence, nor will it unreasonably interfere with the use of any hot or Tesidence or Improvement constructed thereon. : woR ARTICLE-10.° ~SPECIAL DECLARANT RIGHTS 10.01 Special Declarant Rights. Notwithstandinig any provision of this Declaration to the contrary, Declarant during the Development and Sale"Périod and its duly authorized representatives, agents, associates, employees, successors. and. permitted assigns will have the right and privilege: we (a) to use a sales center and model home Jocated ont: Declarant-Owned Lots, together with such other facilities thereon as may be reasonably required, for. sales and marketing relating to the Property, to show model homes to prospective purchasers of Declarant-Owned Lots, and to erect and maintain advertising signs (illuminated or non-illurminated), sales flags, banners, balloons, decorations, marketing materials and tables, convenient or’ incidental to the completion, renovation, improvement, development and sale of Declarant-Gwned, Lots or homes constructed thereon; a ae (b) to maintain Improvements upon Declarant-Owned Lots as‘ Sales, model, management, business and construction offices; OS (c) to maintain and locate construction trailers and constmiction tools and 35 SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 40 of 41 equipment within the Property, provided that such trailers are not visible from the exterior of Property at; the principal subdivision entry road to the Property; and - ay ,a non-exclusive easement to use and enjoy the Common Area for special events, promotional, activities and grand opening celebrations. In connection with the hosting of
road to the Property; and - ay ,a non-exclusive easement to use and enjoy the Common Area for special events, promotional, activities and grand opening celebrations. In connection with the hosting of special events; promotional activities and grand opening celebrations in the area, Declarant shall- Be permitted to have live entertainment, such live entertainment shall not be permitted after 8: Oo P: mt, ane. any noise created therefrom shall not be deemed a nuisance and shall not cause Declarant ‘anid its representatives, agents, associates, employees, tenants and guests to be deemed in violation of any Provision of the Restrictions.
2% =e oe 10.02 Déclarant’s Rights. Except as otherwise provided below, Declarant’s rights hereunder are not. assignable, and shall automatically terminate upon termination of the Development and ‘Sale. Period. Notwithstanding the foregoing, Declarant may, by written instrument, assign: (i}.in whiole of in part, any of its privileges, exemptions, rights and duties under this Declaration t to. an entity ‘which is owned and controlled by Toll Brothers, Inc.; or (ii) approve amendments i in accordance with. Section 8.03, if the assignee of such rights acquires five (5) or more Lots from Declarant i in a single transaction.
EXECUTED to be offective on- the date this instrument is recorded in the Official Public Records of Tarrant County, Texas.
pio LARANT y TOLL DALLAS TX LLC, a Texas limited liability compan iv aa AOL > ood ame: Title: ree THE STATE OF TEXAS YG 2.
county oF “Tawatt § ee ee instrument was acknowledged before this qth ay of ‘tl Roloe (4 +6. trul “View Presidentos Toll Dallas TX LLG,’ a "Texas limited liability company, on behalf of said limited liability company.
/; ) (SEAL) wee MECH LEE METCALF E
d before this qth ay of ‘tl Roloe (4 +6. trul “View Presidentos Toll Dallas TX LLG,’ a "Texas limited liability company, on behalf of said limited liability company.
/; ) (SEAL) wee MECH LEE METCALF E Sralboy,) NOTARY FUBLIG ; Notary ull Signature 2», 36 AUSTIN, 14673126 v9 52918-1319 WHITTIER HEIGHTS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 41 of 41 EXHIBIT “A” Lots 48X. and, 49X, Block A, Lot 12, Block B, Lot 17X, Block C, and Lot 22X, Block D, Whittier Heights, ari addition to the City of CoHeyville and a subdivision located in Tarrant County, Texas- according: ‘to the map or plat recorded in Cabinet A, Slide 8667, Plat Records of Tarrant County, Texas.
Lots 5OXR, Block A and Lot 13XK, Block B, Amending Plat of Lot 50XR, Block A and Lot 13XR, Block B, Whittier Heights, an addition to the City of Colleyville and a subdivision located in Tarrant Counity,’ Texas according to the map or plat recorded in Cabinet D209060805, Plat Records of Tarrant County. ‘Texas.
Lots 7X and 8X, Block 1; Final Plat of Whittier Heights Phase II, a subdivision located in Tarrant County, Texas, according’ to- the. Original Plat recorded in Cabinet D212009456, in the Official] Public Records of Tarrarit Gourity, Texas SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS