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HomeMy WebLinkAboutCP 95-02; Lagoon Waterfront LLC Condominium; Condo Permit (CP) (8)ecu oov WHEN RECORDED MAIL TO: LAGOON WATERFRONT LLC P.O. BOX 2198 CARLSBAD, CA 92018 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND INCLUSIONARY BYLAWS ON REAL PROPERTY WHEREAS, DON L. JACK, hereinafter referred to as "Owner" or "Grantor", is the Owner of that certain real property legally described as: Lot 37 of Tract 5162 in the City of Carlsbad, County of San Diego, State of California as filed in the office of the County recorder of said County, and further described on the attached EXHIBIT as a part hereof. Said property is a one lot condominium commonly known as 45?1 and 4575 Cove Drive, and hereinafter referred to as the "Property" which contains two (2) separate real property single family residential condominiums. Said condominiums are separated by a "Residential Building Division Line" as defined hereinbelow with 4575 Cove Drive on the northernmost side of said Lot 37, and 4571 Cove Drive on the southernmost side of Lot 37, (hereinafter individually referred to as "Unit" and both collectively referred to as "Units"). The term Unit is further described in "Unit Definition" hereinbelow and Individually delineated by EXHIBIT "B" CONDOMINIUM PLAN, recorded concurrently herewith; and WHEREAS, the Property is conditioned by (Minor Subdivision No. 95-04 lr [Condominium Permit No. 9.5-02..It [the Amended and Restated Declaration of Restrictions and Protective Covenants recorded December 3f 1983 (modified since and originally recorded February 17, 1965)] and [other such standard Homeowner's Association Covenants, Conditions and Restriction documents as associated with the master homeowner's association know as the Bristol CQVQ Property Owners Association!,, all of which are hereinafter collectively referred to as "Requisites", to said Property; and WHEREAS, No provision of this Declaration is intended to, nor shall it be deemed to modify, waive, delete or amend any condition or provision of said Requisites; and NOW, THEREFORE, Grantor does hereby declare that all of said Lot, Units and Property shall henceforth be sold, held, transferred, conveyed, encumbered, hypothecated, leased, used, occupied, and improved subject to the following Covenants, Conditions, and Restrictions, additionally herein referred to as the "Declaration", all of which are imposed for the purpose of uniformly enhancing and protecting the value, attractiveness, and desirability of the Property in furtherance of general standards for the protection, maintenance, development, subdivision, improvement, and sale of the Property, and every part thereof as a servitude in favor of each and every Unit thereof. i! CCttjOOV 4/28/95 1 20d Uld£S:<L 966 T 8Z '^d 8S£9 ZZL 6T9 : '°N 3NOHd GRANTOR FURTHER GRANTS AND DECLARES THE FOLLOWING: ARTICLE I GENERAL PROVISIONS Section 1.01. "Definition of Common Area" The remainder of the subject lot 37 which Is not defined as a Unit, shall be construed as "Common Area*'. Section 1.02. "Definition of Residential Building Division Line" The Residential Building Division Line is identified on the attached EXHIBIT and the EXHIBIT "Bw CONDOMINIUM PLAN recorded concurrently herewith. Said Residential Building Division Line is a hypothetical horizontal separation line which shall run the full depth of the property from the front property line abutting Cove Drive clear to the rear property line abutting Lot 74 of Tract 5162 of San Diego County, and shall literally intersect the lot and structure into two separate portions, exactly through the middle of and parallel to the center demising wall. The intent hereof is to allocate the property so each unit has its own residential lottage even though the lot is legally a one lot condominium. Section 1.03. "Definition of Unit" Each Unit consists of a separate interest in space containing all of the earth, air and improvements located within its boundaries. The lower boundary of a Unit will extend to the center of the earth below ground elevation; the upper boundary of a Unit will be limitless insofar as it will extend to the heavens above ground elevation. The front and rear boundaries of each Unit are shown on the Condominium Plan and extend from the front property line abutting Cove Drive clear to the rear property line abutting Lot 74 of Tract 5162 of San Diego County. The lateral (side) boundaries of each Unit are shown on the Condominium Plan and extend away from the Residential Building Division Line clear to the respective side yard property lines. Included within the boundaries of each Unit are all earth, air and improvements located therein, including but not limited to landscaping, grass, bushes, concrete, rocks, rip-rap walls, building structures, walls, fences, decks, foundations, roofs, windows, doors, railings, bearing walls, columns, floors, hot water heaters, appliances, lighting fixtures, heating and other services, pipes, ducts, flues, chutes, chimneys, conduits, wires and other utility installations, wherever located upon or within a Unit, except any such pipes, wires, utility, or the like installations which serve the other Unit, the same pipes, wire, utility, or the like and other such installations being exclusive use Common Area. Section 1.04. "Grant of Easement" Grantor does hereby grant from one Unit to the other and reciprocally vice versa, an easement incumbent upon each Unit in favor of the other, its successors and assigns, and right of way In, upon, over, under and across the Unit to place, construct, repair, replace, maintain, and use at any time or from time to time, for utility cables, utility conduits, pipes, wires and lines, electrical, water, sewer, and/or the like and all necessary miscellaneous items connected therewith, ("facilities"), together with the right of Ingress thereto and egress therefrom to and along said facilities. Section 1.05. "pfndipg Affect" The Covenants, Conditions, and Restrictions as set forth herein shall run with the Property and shall be binding upon all Persons having any right, title, or interest in and to said Property or any portion thereof, their heirs, successors, and assigns, and shall inure to the benefit of every portion of the Property and any interest therein, and shall inure to the benefit of and be binding upon Grantor or its successors in interest, and each Owner and Unit and respective successive Owners, and may be enforceable by Grantor and/or by any other such affected Owner(s) of the property(les) as provided by this Declaration. Section 1.06. "Constructive Notice and Acceptance11 Every person or entity who owns, occupies or acquires any right, title, estate, or interest in or to any Lot, Unit or other portion of the Property does and shall be conclusively deemed by the acquisition of same, to have consented and agreed to binds themselves or itself, its heirs, personal representatives, successors, transferees and assigns, and agrees to the reasonableness and effect of every limitation, restriction, condition, servitude and covenant contained herein or any amendments thereto, whether or not any reference to this Declaration is CCMCDV £0d Wdt7S:,L 966 T 8Z '^b 8S£9 ZZL 6T9 : '°N 3NOHd *NbDia3Ub contained in the instrument by which such person acquired Interest in the Property, or any portion thereof. Section 1.07. "Rights of Mortgages'* 1. Mortgage Permitted. Each Owner may encumber his Unit with Mortgage obligations). 2. Subordination. The restrictions and/or any provisions set forth herein are hereby declared and expressly made subject and subordinate to any and all mortgages hereto whether or not such mortgage is perfected prior to or later than the date hereof and shall not supersede nor In any way reduce the security or affect the validity of any mortgage or Deed of Trust made in good faith and for value; provided, however, that if any portion of the property is sold under a foreclosure of any mortgage or under the provisions of any Deed of Trust, any purchaser at such sale and his successors or assigns, shall hold any and all property so purchased subject to all of the restrictions and provisions of this Declaration. Section 1.08. "Indemnification" Each Owner shall be liable to the other Owner for any injury to Property or life that may be sustained by the injured Owner, by reason of the other Owner's negligence, or negligence of that Owner's family members, contract purchasers, tenants, guests, or invitees, but only to the extent that such damage is not covered by casualty insurance. Each Owner, by acceptance of his deed, agrees personally and for family members, contract purchasers, tenants, guests, and Invitees, hereinafter "Occupants", to indemnify the other Owner, and to hold him harmless from, and to defend him against, any claim of any such Occupants for personal injury or property damage occurring within the Common Area or the Unit of that particular Owner, except to the extend (i) that such injury or damage is covered by liability insurance in favor of the other Owner or (li) the injury or damage occurred by reason of the willful or negligent act or omission of the other Owner or other person temporarily visiting his Residence. ARTICLE II USE RESTRICTIONS and MAINTENANCE Subject to the exemptions of Grantor as set forth herein, all real property within the Property shall be held, used, and enjoyed subject to the following limitations and restrictions. Notwithstanding anything to the contrary herein, these restrictions shall not be interpreted in such a manner as to permit any activity which would be contrary to any governmental ordinance or regulation. Section 2.01. "10* Foot Front Yard Setback" No Unit shall tandem park any vehicle in front of the existing garages within the 10 foot front yard setback so as to allow said vehicle to overhang or penetrate any portion of the public sidewalks. Section 2.02. "Vehicles" No owner shall park, store, or keep anywhere on the Property Including without limitations to any street, alleys or driveway, any passenger vehicle, any type of large truck, any commercial-type vehicle or dump truck, any cement mixer truck, oil or gas truck, or delivery truck, or any such vehicle with a load capacity which exceeds one (1) ton, any recreational vehicle (camper unit, house-car, motor home, recreational vehicle or the like), bus, trailer, trailer coach, camper-trailer, or boat. Sectipn %.Q3. "Unit Rental" Should either Unit within the Lot be rented, the minimum time increment for such rental shall not be less than 26 days. Section 2.04. "Exterior Maintenance and Repair; Owner's Obligations" All Improvements within the Property or Unit shall at all times be kept in good appearance and repair such as not to create any dangerous, unsafe, unsightly, or unattractive condition. Section 2.05. "Landscape" Each individual Owner or its successors or assigns in interest of a Unit shall be permanently responsible for planting, nurturing, growing, watering, fertilizing, pruning, OttRjCOV 4/28/95 ^ t>0d MdBS-.L 966T 8Z '^y 8S£9 ZZL 6T9 : 10N 3NOHd *NbDId3Wb weeding, preserving, cleaning, maintaining, and proper caring for any and ail landscape or grounds upon Chat particular Unit. All landscaping shall be maintained in an attractive manner and Owner shall keep such landscaping and Unit in a neat, clean, properly weeded, watered and well cared for condition. The intent hereof Is simply that each individual Unit Owner properly maintain his Unit. Section 2.06. "Plastering. Roofing, and Edifice1* Each Owner shall be perpetually responsible for maintaining, replacing, repairing and the proper caring for his own Unit including but not limited to any and all exterior plastering, roofing, external building edifice or elements upon which that particular Unit lies so as not to in anyway detract from the attractive appearance of the property. Section 2.07. "Common Area Maintenance Assessments" Each Owner by deed acceptance, covenants, warrants and agrees for his Unit, to pay one-half (1/2) of all costs of maintenance, repair and replacement for any common walls, walkways, roofing, chimney, wharfage, landscape, or the like. The Owners shall jointly determine what maintenance, repairs and replacements (the "Repairs") are needed from time to time, and the cost of completing them, and the contractors to perform the Repairs. Should the Owners fail in this measure, OR ANY MEASURE to agree upon the Repairs after earnest negotiations in good faith, the matter shall be decided by binding arbitration as set forth hereinbelow and each Owner shall bear one-half (1/2) of all costs thereof. Section 2.08. "Waterfront Wharfage" Each Unit Owner hereby pledges and warrants each to the other, that within two (2) years of initial occupancy, they shall jointly construct and equally share all costs and efforts attributable to a waterfront wharfage (boat dock) facility, of which the same shall be built in conformance with the "Bristol Cove Property Owners Association Minimum Construction Requirements for Wharfage Facilities". Moreover, after completion of such construction, each Unit Owner from that period forth, hereby pledges and warrants each to the other, that they shall equally share any and all on going costs for the perpetual maintenance, replacement, repairing and proper caring for said waterfront wharfage boat dock facility. Section 2.09. "Nuisances" No Unit shall be used in such a manner as to obstruct or Interfere with the residential uses, rights to peace and quiet enjoyment, and the "Bundle of Rights" inherent to each Unit. No noxious or offensive activity shall be carried on, in, or about any Unit, nor shall anything be done thereon which may be or become an unreasonable annoyance or nuisance to any other Unit or Owner. Without limiting the generality of the foregoing provisions, no loud noises, music, or noxious odors, no loud or incessant barking or noisy animals, no exterior speakers, radios, amplifiers, horns, whistles, bells, or other sound devices (other than security devices used exclusively for security purposes), no noisy or smoky vehicles, large power equipment or large power tools, CB radios or large antennas, loud music, electric or electronic equipment, or any other such components, objects, things or the like, nor shall any improvements In the Property be located, used, or placed on a portion of the Property or exposed to the view of another Owner which may unreasonably interfere with any Owners rights to quiet enjoyment and/or full use of fee simple property ownership rights. Section 2.10. "Animal and Insect Restriction" No livestock, reptiles, insects, poultry, horses, goats, pigs, birds, or other animals of any kind shall be raised, bred, or kept by any Unit or Owner, except domestic dogs, cats, fish, birds or other such household pets provided that they are not kept, bred, or maintained for commercial purposes or in unreasonable quantities. As used in this Declaration, "unreasonable quantities" shall ordinarily mean more than three (3) pets per dwelling Unit; provided, however, that the City may determine that a reasonable number in any instance may be more or less. The City shall have the right to prohibit maintenance of any animal which, in its opinion, constitutes a nuisance to any other owner. Animals belonging to owners, occupants, or their licensees, tenants, or invitees within the Property must be either kept within an enclosure or on a leash being held by a person capable of controlling the animal. Furthermore, any Owner shall be absolutely liable to each and all remaining Owners, their families, guests, tenants, and invitees for any nuisance, waste matter, damages or injuries caused by any animals of his Family, his tenants, or his guests. OORjCOV 4/28/95 S0d Uld<L£:<L 966T 82'-^y 8££9 7ZL 6T9 : 10N 3NOHd *NUDia3Wb ISandUJ* ARTICLE III TERMINATION. AMENDMENT. AND SEVERABILITY Section 3.01. "Termination, Amendment and Severabnity* It is the expressed purpose and Intention of the Grantor hereof, and by the execution and recordation of this declaration as directive for any and all such Covenants, Conditions and Restrictions as noted herein, that this declaration and all such Covenants, Conditions and Restrictions created hereby shall without further signatures, amendments, addendums, or documentation of any kind, automatically terminate and expire, become null and void, and be without further force or affect, and shall thereby automatically drop from any and all of the property described herein on January 1, 2030 A.D., unless reinstated In writing and recorded for constructive notice, by a majority of not less than a fifty-one (51%) percent vote of ali owners then in title to said Units. This Declaration may be modification, amended or even revoked of which the same shall become effective upon the Recordation of an instrument signed by a majority of fifty-one (51%) percent of the Owners of Units within the Property setting forth in full any such modification, amendment or revocation and certifying the extinguishment of this Declaration as provided herein. In determining the number of votes that may be cast under this Declaration, each Unit shall be entitled to one (1) vote. When more than one person owns an interest in a Unit, the vote for the Unit shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Unit. Should the Owners fail to agree or reach an impasse, the matter shall be decided by binding arbitration as set forth hereinbelow and each Owner shall bear one-half (1/2) of all costs thereof. ARTICLE IV MISCELLANEOOS Section 4.01. "Enforcement" Breach of any of the Covenants, Conditions and Restrictions contained in this Declaration and the continuation of any such breach may be enjoined, abated, or remedied by appropriate legal or equitable proceedings by any Owner or any Unit or interested party thereof, or by the City or by Grantor. The City shall have the right, but not the obligation, to enforce the provisions of this Declarations. It is hereby agreed that recovery of reasonable damages at law for any breach of the provisions of this Declaration shall be adequate remedy. Breach of any Covenants, Conditions and Restrictions contained in this Declaration shall not defeat or render Invalid the lien on any recorded Mortgage, or any part thereof made in good faith and for value as to any Unit of the Property; but such Covenants, Conditions and Restrictions shall be binding and effective against any Owner of a Unit or Units whose title thereto Is acquired by foreclosure, trustee's sale, or otherwise. Section 4.02. "Arbitration Costa, and Attorney Fees" Except to the extent that the disputing parties should agree in writing to any other method of resolution of any given dispute regarding this Declaration, the parties acknowledge that they, by their acceptance and acquisition of the Property/Unit, hereby acknowledge that it shall be incumbent on each, to settle in as expeditious and inexpensive manner as possible any such controversy or claim arising out of or relating to this Declaration, FIRST THROUGH BINDING ARBITRATION before the use of any legal remedies at law, and should the same constitutes the incurrence of any future legal charges, attorney fees and/or expenditures of court, each party shall pay their own respective expenses and neither party shall seek nor be entitle to collect from one to the other any reimbursements for any such costs as a result of said proceedings. Section 4.03. "Arbitration of Disputes" Each Unit Owner hereby agrees, pledges and warrants each to the other, that any dispute or claim in law or equity arising out of this Declaration or any covenants hereof, after proper discovery procedures, be decided by neutral binding arbitration and not by court action, except as provided by California law for judicial review of arbitration proceedings. The arbitration shall be conducted in accordance with the rules of either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Services, Inc. (JAMS). The selection between AAA and JAMS rules shall be made by the claimant first filing for the arbitration. The parties to an arbitration may agree in writing to use different rules and/or arbitrator(s). In all other respects, the arbitration shall be conducted in accordance with part III, Title 9 of the California Code of Civil Procedure. Judgement upon the award rendered by the arbitrator(s) may be entered into any court GC&RJXV 4/28/95 5 90d Wd6S:i 966T 82'-^b 8S£9 22i 6T9 : '°N 3NOHd having jurisdiction thereof. The parties shall have full rights of discovery in accordance with Code of Civil Procedure #1383.05, and should either party refuse or neglect to appear or participate in any such arbitration proceedings, the Arbitrator shall be empowered to award judgement in accordance with whatever evidence is presented by the parties that do participate. Any action for bodily injury or wrongful death, or for latent or patent defects, to which Code of Civil Procedure SS 337.1 or 337.15 applies are excluded from arbitration hereunder. Section 4.04. "No Representations or Warranties'* No representations or warranties of any kind, express or implied, have been given or made by Grantor, its affiliates, or its agents or employees in connection with the Property or any portion of the Property Including, but not limited to, dealing with its physical condition, attributes, zoning, compliance with applicable laws, or suitability except as specifically and expressly set forth in this Declaration and except as may be Filed by Grantor from time to time with any other governmental authority. Section 4.05. "Insurance Obligations of Owners" Each owner shall be solely responsible for insuring all of his dwelling Unit and improvements including without limitation and/or the structural portions of such dwelling Unit, against loss or damage by fire or any other such casualty. Each Owner shall also be solely responsible for obtaining prudent and adequate comprehensive public liability insurance, including medical payments and malicious mischief, insuring against liability for bodily injury, death, and property damage arising from his activities on his Unit. Section 4.06. "Nqtlces" Any notice permitted or required to be delivered as provided herein shall be in writing and may be delivered either personally, front door notice or by mail. If delivery is made by mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy of the same has been deposited in the United States mail, postage prepaid. Any notice to an Owner shall be mailed or delivered to the lots herein unless a different address has been provided. Section 4.07. "Titles. Interpretation and Intent" The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating general standards for the creation and operation of a residential development, and any violation of this Declaration shall be deemed to be a nuisance. If any portions of this Agreement shall be held invalid, the remainder hereof shall be considered valid and operative while effect shall be given to the intent and spirit manifested by the portion held invalid. The Article and Section headings, titles, and captions have been inserted for convenience only, and shall not" be considered or referred to in resolving questions of interpretation or construction. As used herein, the singular shall include the plural and the masculine, feminine, and neuter shall each include the other, unless the context dictates otherwise. All references herein to "days" shall, unless indicated to be contrary, refer to consecutive calendar days. IN WITNESS WHEREOF, Grantor has executed this Declaration on this 29th day of APRIL . 1996. OWNER/GRANTOI BY: DON L. JACK STATE OFt CALIFORNIA COUNTY OF SAM DIEGO On APRIL . 1996 before me. D. M. ttVAN , Notary Public, personally appeared MR. DON L. JACK. personally known to me - or [ 1 proved to me on the baala of satisfactory evidence to be the person(s) whose narae(s) la/are subscribed to the within Instrument and acknowledged to m that he/ehe/they executed the same 1n his/her/their authorized capacities, and that by his/her/their slgnature(s) on this Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed this Instrument. WITNESS my hand and official seal. Signature: OCSR COV 4/26/95 <L0d NdT0:8 966T 82'^ 8S£9 ~5ZL 6T9 : '°N 3NOHd *NbOId3W« EXHIBIT A ONE LOT CONDOMINIUM LOT 37 SHELTER COVE MAP NO. 5162 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY STATE OF CALIFORNIA EXISTING 3' PACIFIC TELEPHONE ESMT. PER DOCUMENT RECORDED JULY W, WG3 A5 FILE/PAGE NO. 127O7G. O.R. N SCALE I' = 2O' ENVELOPE EXISTING 5' SDG+E EASEMENT PER DOCUMENT RECORDED MARCH 17. WG7 AS FILE/PAGE NO. 3G713. O.R. BASIS OP BEARINGS THE BASIS OF BEARINGS FOR THIS DRAWING IS THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF GOVE DRIVE AS SHOWN ON SHELTER COVE MAP NO. 51G2. I.E. N24'18'25'E MONUMENTATION NOTE- INDICATES LEAD + TAG STAMPED 'L.5. 6486' SET AT 4.OO' OFFSET TO PROPERTY LINE IN LIEU OF 1/2" IRON PIPE AND TAG STAMPED 'US. 648G" PER SHELTER COVE MAP NO. 51G2. RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF 5AN DIEGO COUNTY. CALIFORNIA. 80d: Wd£0:8 966T 85'8S£9 6T9 : '°N SNOHd *NU3IfcEUIU PACIFIC VIEW LTD. P.O. Box 2198 Carlsbad, California. 92018 Tele:(619) 720-9785; Fax:(619) 720-9785 TELECOPIER FACSIMILE TRANSMITTAL DATE: 4/28/96 Sun 7pm TO: Ms. Maggie Roland c/o Ms. Marie Crossland, Title Officer Commonwealth Title Insurance 1455 Frazee Road, 6th Floor San Diego, Ca 92108-3887 Direct Fax: (6t RE: Title Insurance Preliminary Policy No. 974554-4 Dear Maggie, Thanks again for your help. We are greatly appreciative. Enclosed, please find a modified CC&R. I know your bzzzzzzy!!!! But we are trying to close this immed We were given Loan approval just Fri.. Can you please review the first 2 pages. Nothing of consequence was changed on the other pages. If this meets with your ^approval, we'll record immediately.£>AwdL/~<__ Cjtvi /M-v-cLvO t- ~~ Ce»^»*f"\^ Ardw*. FT.Immediately.CaAvJU-*-^ CXfo As always, should you have any questions, please don't hesitate to call me at (619) 720—9785. Thanking you again for your assistance and prompt response, I am, Respectfully, Don L. Jack Managing Member S0d WdW3:8 966T 82'^y 8SC9 ttL 6T9 : '°N SNOHd