HomeMy WebLinkAboutCT 98-12; Magnolia Gardens; Tentative Map (CT) (54)Draft
Recording Requested By
and
When Recorded Return To:
HECHT, SOLBERG, ROBINSON & GOLDBERG LLP HP A FT
Ms. Susan L. Daly 1/11/11 I
600 West Broadway, Eighth Floor
San Diego, California 92101
DECLARATION OF RESTRICTIONS
FOR
MAGNOLIA GARDENS
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ARTICLE
TABLE OF CONTENTS
PAGE
DEFINITIONS 1
1.1 City 1
1.2 Declarant 2
1.3 Declaration 2
1.4 Final Map 2
1.5 First Mortgagee 2
1.6 Improvements 2
1.7 Lot 2
1.8 Mortgage 2
1.9 Mortgagee 2
1.10 Owner 2
1.11 Properties 2
USE RESTRICTIONS 2
2.1 Use of Lots 2
2.2 Business or Commercial Activity 2
2.3 Residence Restrictions 3
2.4 Alteration of Residences; Diligence in Construction Required 3
2.5 Solar Energy.Installations 3
2.6 No Tents or Shacks 4
2.7 Parking and Vehicular Restrictions 4
2.8 No Signs 5
2.9 No Mining or Drilling 5
2.10 Animals 5
2.11 No Nuisance 5
2.12 No Hazardous Activities 5
2.13 Weeds, Rubbish, Sanitary Containers, Etc 5
2.14 Leasing of Lots '6
2.15 No Further Subdivision 6
2.16 Drainage 6
2.17 Subsurface Drainage System 6
2.18 Private Sewer Easement 7
2.19 Encroachment Easement 7
2.20 Slope Control, Use and Maintenance 7
2.21 Access to Slopes and Drainage Ways 7
2.22 Installation of Landscaping 7
2.23 Fencing and Walls; Maintenance 7
2.24 Common Fences 7
2.25 Outdoor Lighting 8
2.26 Street Grades, Cuts and Fills 8
2.27 Window Coverings 8
2.28 Post-Tensioned Slabs 8
2.29 Trees; Street Trees .9
2.30 Sight Distance Corridors 9
2.31 Lots Affected By Building Setback and Fire Protection Requirements 9
2.32 National Pollutant Discharge Elimination System Requirements 9
GOVERNMENTAL REQUIREMENTS 10
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ARTICLE PAGE
IV DECLARANT EXEMPTION 10
V MAINTENANCE RESPONSIBILITIES 11
5.1 In General 11
5.2 Landscaping 11
VI ANNEXATION 11
VII RIGHTS OF LENDERS 11
7.1 Priority of Lien of Mortgage' 11
7.2 Curing Defaults 11
VIM GENERAL PROVISIONS 11
8.1 Enforcement 11
8.2 Severability 12
8.3 Amendments 12
8.4 Extension of Declaration 12
8.5 Reservations of Easements by Declarant 12
8.6 Attorneys' Fees 12
EXHIBITS
A Subsurface Drainage System
B Fence and Wall Plan
C Brush Management Lots & Construction Restriction Areas
SUBORDINATION AGREEMENT(S)
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DECLARATION OF RESTRICTIONS
FOR
MAGNOLIA GARDENS
THIS DECLARATION OF RESTRICTIONS FOR MAGNOLIA GARDENS is made this day of
, 2001, by LOMA VERDE, INC., a California corporation, dba Pacific Scene
Homes (hereinafter called "Declarant")
WITN ESSETH:
A. Declarant is the owner of that certain real property situated in the City of Carlsbad, County
of San Diego, State of California, which is more particularly described as:
Lots 1 through 6, inclusive, of Carlsbad Tract No. 00-05, in the City of Carlsbad, County
of San Diego, State of California, according to Map thereof No. , filed in the
Office of the County Recorder of San Diego County, California, on
, 2001 ("Tract No. 00-05"); and
Lots 1 through 12, inclusive, of Carlsbad Tract No. 98-12, in the City of Carlsbad, County
of San Diego, State of California, according to Map thereof No. , filed in the
Office of the County Recorder of San Diego County, California, on
, 2001 ("Tract No. 98-12"),
(the "Properties").
B. Declarant intends to build detached single family homes within the Properties. No
homeowners association is being established for the Properties and the Properties do not constitute a
Common Interest Development as defined in California Civil Code Section 1351(c).
C. Before selling any portion of the Properties, Declarant wishes to impose on all of the
Properties the following plan of covenants and restrictions.
NOW, THEREFORE, Declarant hereby certifies and declares and does hereby establish the following
general plan for the protection and benefit of the Properties and has fixed and does hereby fix the following
protective covenants and restrictions upon each and every ownership interest in the Properties, under
which said covenants and restrictions each ownership interest therein shall be hereafter held, used,
occupied, leased, sold, encumbered, conveyed and/or transferred. Each and all of said covenants and
restrictions are for the purpose of protecting the value and desirability of and shall inure to the benefit
of the Properties and shall run with and be binding upon and pass with the Properties and each and every
ownership interest therein and shall inure to the benefit of, apply to and bind the respective successors
in title or interest of Declarant.
ARTICLE I
DEFINITIONS
1.1 "City" shall mean and refer to the City of Carlsbad, California.
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1.2 "Declarant" shall mean and refer to LOMA VERDE, INC., a California corporation, dba
Pacific Scene Homes, and its successors and assigns, if Declarant assigns to such successors the rights
of Declarant under this Declaration and if such successors assume any obligations of Declarant hereunder.
Such assignment of rights need not include all of the original Declarant's rights.
1.3 "Declaration" shall mean and refer to this Declaration of Restrictions for Magnolia Gardens,
as it may from time to time be amended.
1.4 "Final Map" shall mean and refer to Tract No. 00-05 or Tract No. 98-012.
1.5 "First Mortgagee" shall mean and refer to any person who holds a Mortgage which is
not inferior in priority to any other Mortgage.
1.6 "Improvements" shall mean and include all construction, development, alteration, grading,
landscaping, addition, excavation, modification, decoration, painting or reconstruction of any exterior
improvement on a Lot, including, but not limited to, a dwelling unit, garage, patio cover, deck, fence
or wall, landscaping or other yard improvements, walkways, driveways or parking areas, poles, signs,
and exterior air conditioning and water softener fixtures or equipment.
1.7 "Lot" shall mean and refer to any plot of land shown as a separate lot or parcel upon
any recorded Final Map or Parcel Map of any portion of the Properties. In the event the boundaries of
any Lot are adjusted in compliance with the California Subdivision Map Act, then "Lot" shall refer to
the Lot as so adjusted.
1.8 "Mortgage" shall mean and refer to a deed of trust as well as a mortgage encumbering
a Lot.
1.9 "Mortgagee" shall mean and refer to the beneficiary of a deed of trust as well as the
mortgagee of a mortgage encumbering a Lot.
1.10 "Owner" shall mean and refer to the record owner, whether one (1) or more persons
or entities, of fee simple title to any Lot which is a part of the Properties, including contract purchasers
who have a possessory interest pursuant to their contract to purchase, and excluding contract sellers
having such interest merely as security for the performance of an obligation.
1.11 "Properties" shall mean and refer to that certain real property described in Recital "A"
of this Declaration and such additional real property as may be annexed to this Declaration pursuant
to Article VII below.
ARTICLE II
USE RESTRICTIONS
2.1 Use of Lots. All Lots within the Properties shall be improved and used solely for
single-family residential use and the purposes set forth in the City Resolution. No building or buildings
shall be erected, constructed, altered or maintained on any Lot other than one (1) detached single-family
residence, together with customary ancillary structures, as permitted from time to time by applicable
zoning ordinances and other governmental regulations. No Owner shall permit anything to be done,or
kept on his or her Lot or within the residence located thereon which would be in violation of any law.
No obnoxious or offensive activity shall be carried on in any residence on a Lot, nor shall anything be
done therein which may be or become an annoyance or nuisance to other Owners.
2.2 Business or Commercial Activity. No Lot shall be used or caused to be used or allowed
or authorized to be used in any way, directly or indirectly, for any business, commercial, manufacturing,
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mercantile, storage, vending or other non-residential purposes; except Lots may be used for model home
sites, construction offices, a design center, and display and sales office purposes during the construction
and sales period by Declarant. The provisions of this Section shall not preclude an Owner from maintaining
a home-office and conducting business activities therefrom on the following conditions: (a) there is not
external evidence of such activity; (b) such activities are conducted in conformance with all applicable
government ordinances; (c) the patrons or clientele of such activities do not visit the Lot or park auto-
mobiles or other vehicles within the Properties; (d) the existence or operation of such activities is not
apparent or detectable by sight, sound or smell from outside of the boundaries of the Lot; and (e) such
activities are consistent with the residential character of the Properties and conform with the provisions
of this Declaration.
2.3 Residence Restrictions. All residences constructed on the Lots shall be subject to the
following restrictions:
(a) All residences shall contain a minimum of 2,500 square feet of interior floor area
(excluding garages, exterior stairways, porches and patios);
(b) All residences shall include a private enclosed garage for not less than two (2)
full-sized passenger vehicles;
(c) The exterior elevations of all residences shall include stucco, masonry, wood,
or a combination thereof; no residence shall have a composition shingle, wood shingle or wood shake
roof;
(d) All residences shall be of a style generally consistent with the architectural scheme
of the Properties;
(e) No balcony or deck attached to any residence shall be higher above the ground
than the highest dwelling floor level of the residence;
(f) All prefabricated residences shall be prohibited.
2.4 Alteration of Residences: Diligence in Construction Required. In the event that the exterior
of any residence on a Lot needs to be repaired or remodeled, it shall be repaired or remodeled in a manner
which is identical or substantially similar to the exterior of the residence at the time that the residence
was conveyed from Declarant to the original retail purchaser. Any other Improvements permitted to be
constructed on the Properties shall conform with the general plan established by this Declaration and
the aesthetic appearance of the Properties. In the event that the exterior of any residence or fence, if
installed by Declarant, needs to be painted, said residence or fence or wall shall be painted in a color
identical or substantially similar to the original color of the residence at the time that the residence was
conveyed from Declarant to the Owner. The work of constructing and erecting any Improvements shall
be prosecuted diligently from the commencement thereof, and the same shall be completed within a
reasonable time. This Section shall not apply to any Improvements made by Declarant on any Lot.
2.5 Solar Energy Installations. With the exception of vegetation and Improvements installed
by Declarant, no vegetation or other Improvement shall be planted or maintained on any Lot in such
a location or at such a height as unreasonably to obstruct the rays of the sun to a previously existing
solar collector that was installed on the roof of any residence located on any other Lot. The installation
of solar energy systems is deemed to be harmonious with the surrounding architecture and the aesthetic
character of the Properties, and nothing herein shall preclude the installation of solar energy systems.
Solar technology installed to serve recreational pools and spas shall be permitted but shall not be located
on any portion of any Lot, or residence thereon, so as to be visible from any street within the Properties,
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unless location elsewhere on the Lot would significantly increase the cost of the system or significantly
decrease its efficiency.
2.6 No Tents or Shacks. No tent, shack, outbuilding, garage, camper, motor home, boat
or' recreational vehicle shall at any time be used on any Lot as a residence, either temporarily or
permanently, nor shall any residence of a temporary character be constructed, placed or erected on any
Lot.
2.7 Parking and Vehicular Restrictions.
(a) Prohibited Vehicles. No "Prohibited Vehicles" (as defined herein) shall be parked,
stored or kept on any Lot except wholly within an enclosed garage, and then only if the garage door
is capable of being fully closed. A Prohibited Vehicle is defined as: any commercial type vehicle (including,
but not limited to, any dump truck, cement mixer truck, oil or gas truck or delivery truck); any inoperable
vehicle or any other similar vehicle; or any vehicle or vehicular equipment, mobile or otherwise, constituting
a nuisance. Prohibited Vehicles shall not be allowed in any driveway or other exposed parking areas,
except for the purposes of loading, unloading, making deliveries or emergency repairs ("Transitory Use"),
provided that no Transitory Use shall extend over more than twenty-four (24) hours during any seven
(7) consecutive days.
(b) Recreational Vehicles. No "Recreational Vehicles" (as defined herein) shall be
parked, stored or kept on any Lot except (i) wholly within an enclosed garage, and then only if the garage
door is capable of being fully closed or (ii) within a fenced yard. A Recreational Vehicle is defined as:
any recreational vehicle (including, but not limited to, any camper unit, house/car or motor home); or
any bus, trailer, trailer coach, camp trailer, boat, aircraft or mobile home. Recreational Vehicles shall
not be allowed in any driveway or other exposed parking areas, except for the purposes of Transitory
Use, provided that no Transitory Use shall extend over more than twenty-four (24) hours during any
seven (7) consecutive days.
(c) Garages and Other Parking Areas. Garages or other parking areas shall be used
only for parking vehicles (including Recreational Vehicles and Prohibited Vehicles); provided, however,
if an Owner has fewer vehicles than the garage will accommodate, the extra space in the garage rriay
be used for temporary storage. No garage shall be used as an habitual living area; provided, however,
an Owner of a residence with a garage which provides for parking of more than two (2) vehicles may
convert his or her additional parking space(s) in the garage into an habitual living area which is a part
of the residence on the Lot subject to: (i) City Code requirements and the prior approval of the City,
if required; and (ii) at least two (2) parking spaces remaining within the garage. There shall be no parking
in the driveways if the Owner's garage is not being utilized to the maximum designed capacity for the
parking of vehicles, or if to do so obstructs free traffic flow, constitutes a nuisance or otherwise creates
a safety hazard. Garage doors shall be kept closed at all times, except as reasonably required for ingress
to and egress from the interiors of the garages.
(d) Repairs. No repairs or restorations of any vehicle or equipment shall be conducted
upon any Lot or elsewhere within the Properties, except (i) wholly within an enclosed garage or (ii) within
a fenced yard where activities are not visible from any street; provided, however, that such activity
is not undertaken as a business, and provided further that such activity may be prohibited entirely if
it constitutes a nuisance.
These restrictions shall not be interpreted in a manner which would permit any activity which
would be contrary to any ordinance of the City or other governmental agency having jurisdiction over
the Properties.
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2.8 No Signs. No sign, poster, billboard, balloon or other display or advertising device of
any kind (including without limitation religious, commercial or political signs) shall be displayed to the
public view on any portion of the Properties, except: (a) such signs, flags, poles and banners (regardless
of,size or configuration) as may be used by Declarant in connection with the development of the Properties
and the sale, lease or other disposition of Lots; (b) entry monuments and similar community identification
signs, if any; (c) one sign having dimensions of not more than 18 inches x 24 inches for each Lot,
advertising the Lot for sale or lease; (d) two (2) signs of customary and reasonable dimensions which
may be displayed on each Lot providing notification that the residence on the Lot is serviced by a security
system; and (e) political signs displayed during the two (2) weeks immediately preceding the date of
a political primary election, general election or special election. All signs and the maintenance thereof
shall conform to the requirements of all applicable governmental ordinances.
2.9 No Mining or Drilling. No portion of the Properties shall be used for the purpose of mining,
quarrying, drilling, boring or exploring for or removing water, oil, gas or other hydrocarbons, minerals,
rocks, stones, gravel or earth.
2.10 Animals. No livestock, reptiles, insects, poultry or other animals of any kind shall be raised,
bred or kept on any Lot, except domestic dogs, cats, fish, birds in cages, and other household pets,
provided that: (a) such animals are not kept, bred or maintained for commercial purposes and do not
result in an annoyance or nuisance to any other occupant of a Lot; (b) no more than one (1) adult dog
or one (1) adult cat for each five thousand (5,000) square feet of land within a Lot are kept on the Lot;
and (c) no more than three (3) of each animal are kept on any Lot, not including offspring under four
(4) months of age. Animals within the Properties belonging to Owners, occupants or their licensees,
tenants or invitees must be kept within an enclosure or an enclosed yard or on a leash being held by
a person capable of controlling the animal. Furthermore, each Owner shall be absolutely liable to each
and all remaining Owners, their families, guests, tenants and invitees for any animals brought or kept
upon the Properties by such Owner or by members of such Owner's family or his or her tenants or guests.
2.11 No Nuisance. No Lot or residence located thereon shall be used in such manner as
unreasonably to obstruct or interfere with the residential use of other Lots, nor in such manner as
unreasonably to annoy the occupants of residences located on other Lots by unreasonable noises, offensive
odors, noxious or offensive trade or activity, or otherwise. No external bells or horns shall be permitted
on any Lot. Nothing herein stated shall disallow installation of an alarm system. Any Owner who has
an alarm system installed shall use reasonable care to prevent false alarm occurrences.
2.12 No Hazardous Activities. No activities shall be conducted on any Lot, and no Improvements
shall be constructed on any Lot, which are or might be unsafe to any person or property.
2.13 Weeds. Rubbish, Sanitary Containers, Etc.
(a) No rubbish, trash, garbage, refuse or other waste material shall be kept or permitted
upon any Lot, except in sanitary containers located in appropriate areas screened and concealed from
view from any other Lot or any street within the Properties, and no odor shall be permitted to arise
therefrom so as to render the Properties or any portion thereof unsanitary, unsightly, offensive or
detrimental to any other property in the vicinity thereof or to its occupants. Trash containers shall be
exposed to the view of neighboring Lots only when set out for a reasonable period of time (not to exceed
twenty-four (24) hours before and after scheduled trash collection hours).
(b) There shall be no exterior fires whatsoever within any Lot, except barbecue fires
contained within receptacles commercially designed therefor, in enclosed yards and located in such a
manner that they do not create a fire hazard. No incinerators shall be kept or maintained within the
Properties.
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(c) No clothing or household fabrics shall be hung, dried or aired within the Properties
in such a way as to be visible from any other portion of the Properties, and no lumber, grass, shrub or
tree clippings, plant waste, metals, bulk materials or scrap shall be kept, stored or allowed to accumulate
on any portion of the Properties, except within an enclosed structure or appropriately screened from
view from any other portion of the Properties.
2.14 Leasing of Lots. Each Owner shall have the right to lease his or her Lot. Any such lease
shall be subject in all respects to the provisions of this Declaration and any failure of the lessee to comply
with the provisions of this Declaration shall constitute a default under the lease. No Owner may lease
his or her Lot or Improvements thereon for hotel, motel, time share or transient purposes. Any lease
which is either for a period of fewer than thirty (30) days or pursuant to which the lessor provides any
services normally associated with a hotel, shall be deemed to be for transient or hotel purposes.
2.15 No Further Subdivision. No Owner, excluding Declarant, shall further partition or subdivide
a Lot within the Properties; provided, however, that this provision shall not be construed to limit the
right of an Owner to: (a) rent or lease his or her entire Lot; (b) sell his or. her Lot; or (c) transfer or sell
any Lot to more than one person to be held by them as tenants-in-common, joint tenants, tenants by
the entirety, or as community property.
2.16 Drainage.
(a) There shall be no interference with the established surface drainage pattern over
any Lot which affects any other portion of the Properties, unless (i) an adequate alternative provision
is made for proper drainage, and (ii) it is in accordance with all applicable governmental codes and
ordinances. "Established Drainage" is defined as the surface and subsurface drainage which exists at
the time the overall grading and landscaping of the Properties is completed by Declarant pursuant to
grading plans approved by the City.
(b) There are created, granted and reserved non-exclusive easements appurtenant
to each Lot in the Properties for drainage according to the Established Drainage, as well as according
to the actual, natural and existing patterns for drainage. Each Owner covenants and agrees that he or
she shall not obstruct or otherwise interfere with the Established Drainage of water from adjacent Lots
in the Properties over his or her Lot or, in the alternative, that in the event it is necessary and essential
to alter the Established Drainage for the protection and use of his or her Lot, he or she will make adequate
provisions for proper drainage in accordance with the applicable governmental grading ordinance.
(c) No drainage shall be allowed from one Lot to another unless that drainage pattern
is part of the Established Drainage pattern. The soil level of each Lot adjacent to a building shall be at
least six (6) inches below the finished floor slab of the adjacent building.
(d) Any drainage ways and related Improvements located on a Lot (except for those
drainage facilities for which a public authority or utility company is responsible) shall be maintained
continuously by the Owner of the Lot in good working order.
2.17 Subsurface Drainage System. A subdrain system has been installed on Lots 5 and 12
of Tract No. 98-12. The directional flow of the subsurface water and the connection point into the storm
drain system are shown on Exhibit "A". The Owner of each Lot affected by the subdrain is hereby granted
an easement appurtenant to the Lot over each of the other Lots for purposes of subsurface drainage
of water.within the subdrain located on each of the Lots.A
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2.18 Private Sewer Easement. Lot^of Tract No. 98-12 is subject to a private sewer easement
for the benefit of and appurtenant to Lot 12 of Tract No. 98-12. The location of this easement is shown
on Tract No. 98-12.
2.19 Encroachment Easement. Each Owner of a Lot is granted an easement over adjoining
Lots for the purpose of accommodating encroachments due to design, construction, engineering erroiv
errors in construction, settlement or shifting of the building, roof overhangs, architectural or other
appendants and drainage of water from roofs. There shall be easements for the maintenance of
encroachments so long as they shall exist; provided, however, that no easement is created in favor of
an Owner if the encroachment occurred due to the willful misconduct of the Owner. In the event a
structure on any Lot is partially or totally destroyed and then rebuilt or repaired, the minor encroachments
over adjoining Lots shall be permitted and there shall be easements for maintenance of encroachments
so long as they shall exist.
2.20 Slope Control, Use and Maintenance. Each Lot Owner will keep, maintain, water, plant
and replant all slope banks located on the Owner's Lot to prevent erosion and control brush, to create
an attractive appearance, and comply with all City requirements. No structure (including stairs, decks
or terraces), planting or other material shall be placed or permitted to remain or other activities undertaken
on any slope banks which may damage or interfere with established slope ratios, create erosion or sliding
problems, or which may change the direction of flow of drainage channels or obstruct or retard the flow
of water through drainage channels.
2.21 Access to Slopes and Drainage Ways. By acceptance of a deed to a Lot, each Owner
agrees for himself or herself and his or her successors in interest to permit free access by Owners of
other Lots to slopes or drainage ways (if any) located on his or her Lot that affect such other Lots, when
such access is essential for the maintenance of permanent stabilization on such slopes or for the
maintenance of such drainage ways for the protection or use of the other Lots.
2.22 Installation of Landscaping. Within six (6) months after close of escrow for sale by
Declarant of a Lot, the Owner shall install an irrigation system, plants, shrubs, trees and any other
appropriate landscaping Improvements on those portions of the Lot which have not been landscaped
by Declarant but are visible from any street within the Properties or surrounding real property. Within
twelve (12) months after close of escrow for sale by Declarant of a Lot, the Owner shall install an irrigation
system, plants, shrubs, trees and any other appropriate landscaping Improvements on the rear yard portion
of his or her Lot. The landscape plans shall not alter the Established Drainage unless alternate plans
for drainage are made; provided, however, should the alternate plans for drainage affect the Established
Drainage on another Lot, the Owner proposing the alternate plans must acquire the written consent
of the Owner whose Lot is affected . All vegetation on a Lot shall be irrigated and fertilized regularly.
2.23 Fencing and Walls: Maintenance. No fence or wall shall be installed by an Owner on
his or her Lot that does not comply with the Fence Plan approved by the City and attached as Exhibit
"B" to this Declaration. No fence or wall within a Lot shall be altered as to type or height without the
approval of the City. In the event fencing or a wall within the Lot requires replacement, the replacement
fencing or wall shall be substantially identical to the fencing or wall being replaced. Any fencing installed
on a Lot by Declarant is not intended to comply with any barrier requirements for installation of a pool
or spa on the Lot. Should an Owner wish to install a pool or spa on his or her Lot and he or she has
obtained the City's approval for such Improvement, that Owner is responsible to install all fencing-or
walls required by law to be installed for the pool or spa.
2.24 Common Fences. There is created, established and granted an easement appurtenant
to all Lots in the Properties for the placement of any common fences/walls originally installed by Declarant,
in the location where Declarant installed such fences/walls, regardless of whether the fences/walls are
located precisely upon the boundary separating two (2) Lots. Those Owners who have a common
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fence/wall which adjoins their Lots and effectively creates the boundary line between the Lots shall
equally have the right to use the fence/wall, and each shall have the exclusive right to the use and the
obligations of maintenance of the interior surface of the fence/wall facing the Owner's residence. Neither
Owner shall drive nails, screws, bolts or other objects more than half way through any common fence/wall,
or impair in any way the structural integrity of the common fence/wall. In the event that any portion
of the common fence/wall, except the interior surface of one (1) side, is damaged from any cause other
than the act or negligence of either party, it shall be replaced or rebuilt at their joint expense. In the
event any portion of the common fence/wall is damaged by the Owner of only one of the Lots, that
Owner shall, at its expense, be responsible for the repair of the damage to the fence/wall. In the event
of a dispute arising in connection with a common boundary fence/wall or the provisions of this Section,
the matter shall be submitted to and decided by binding arbitration. Each party to the dispute shall choose
one arbitrator and those arbitrators shall choose one additional arbitrator. The decision shall be rendered
by a majority of all arbitrators in accordance with the American Arbitration Association Commercial Rules
of Arbitration.
2.25 Outdoor Lighting. Outdoor lighting on a Lot shall be shaded and adjusted so the light
falls only on the Lot on which the lighting is located and does not fall or reflect on other Lots. No mercury
vapor or sodium lights or security lights shall be installed upon any Lot, and such lights are located so
that they shall not be a nuisance to the occupants of any other Lot.
. 2.26 Street Grades. Cuts and Fills. Declarant reserves the right to make such cuts and fills
as are necessary to grade the streets within the Properties in accordance with such grades as the City
or other political subdivision may establish, and the right to provide the necessary support and protection
of streets so graded, including to slope upon abutting Lots.
2.27 Window Coverings. No newspapers or metallic foil shall be placed on any window of
a residence on a Lot, and no sheets shall be placed on any window of a residence of a Lot for a period
in excess of six (6) months.
S-"* N
( 2.28 Post-Tensioned Slabs. Each Owner acknowledges that the concrete slab for some or
all of the-homes constructed on Lots within the Properties may have been reinforced with a grid of steel
cable which was installed in the concrete and then tightened to a very high tension. This type of slab
is commonly known as a "post-tensioned slab". Each Owner further acknowledges that cutting into
a post-tensioned slab for any reason (e.g., to install a floor safe, to remodel plumbing, etc.) is very
hazardous and may result in serious damage to the dwelling unit and/or personal injury. By accepting
a grant deed to a Lot, each Owner specifically covenants and agrees that:
(a) He or she shall not cut into or otherwise tamper with a post-tensioned slab;
(b) He or she shall not knowingly permit or allow any other person to cut into or
tamper with a post-tensioned slab, other than a licensed contractor who has been informed that the
slab is post-tensioned and who has identified the location of the cables running within the slab;
(c) He or she shall disclose the existence of the post-tensioned slab (if any) to any
tenant, subsequent purchaser or lessee of the Lot; and
(d) He or she shall indemnify and hold Declarant, its respective managers, membe/s,
officers, employees, contractors and agents, free and harmless from and against any and all claims,
damages, losses or other liability (including attorney's fees) arising from any breach of this Section.
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2.29 Trees: Street Trees.
(a) Trees. All trees, hedges and other plant materials shall be trimmed by the Owner
of^the Lot upon which they are located so they do not create a nuisance.
(b) Street Trees. Declarant has planted or will plant "Street Trees" on each Lot
within the Properties as required by the City. Any Street Trees planted by the Seller on the front yard
and, with respect to corner Lots only, side yard of a Lot shall not be removed or replaced with a tree
of a different species without the prior approval of the City. The Declarant shall have the right, but not
the obligation, to replace any tree on a Lot which has been removed by the Owner without the prior
approval of such Owner and to enter upon a Lot for such purpose. Each Owner is responsible to maintain
and irrigate the Street Trees located on his or her Lot; Declarant has not installed and does not intend
to install irrigation facilities for the Street Trees.
2.30 Sight Distance Corridors. "Sight Distance Corridor" requirements exist on portions of
Lot 6 of Tract No. 00-05 and Lot 11 of Tract No. 98-12 (the boundaries of which are shown thereon).
No structure, fence, wall, sign or other object over thirty (30) inches in height above the adjacent street
elevation may be placed or permitted to remain within any portion of the Sight Distance Corridor. The
Owner of the Lot on which a Sight Distance Corridor exists shall be responsible for maintaining the height
limitation set forth in this Section.
[Dennis: Are there brush management requirements for this project?]
5.31 Lots Affected By Building Setback and Fire Protection Requirements.
(a) Brush Management Lots. Portions of the Brush Management Lots (the boundaries
of which are\hown on Exhibit "C" attached to this Declaration) are subject to the Fire Protection
Requirements. E^ch Owner of a Brush Management Lot shall maintain his Lot in accordance with^tfte"
Fire Protection Requirements. Brush clearance as required by the Fire Protection Requirements maychange
the character and appearance of the Properties and Declarant shall not be liable to any Qv/ner for work
performed in compliancXwith the Fire Protection Requirements. There is no guararrteefor assurance that
compliance with the Fire iRrotection Requirements will prevent damage or destruction by fire.
(b) Construction Restriction Areas. To reduce fire hazards, the Construction Restriction
Areas of the Brush Management Lots are subject to "building setbajok^and the Fire Protection Requirements.
The Construction Restriction Areas snajl not be improved wjjh-gazebos, patio overhangs, play equipment,
room additions, tool sheds, fences or other combustijjte'structures. The Construction Restriction Area
shall be landscaped and irrigated in confonhancewifn the Fire Protection Requirements. The boundaries
of the Construction Restriction Areas on thepKjsh Management Lots are shown on Exhibit "C" attached
to this Declaration. The construction or instaltationb^non-combustible accessory structures maybe approved
by the City Fire Department. ^
(c) Lofl 2 of Tract 98-12. As requirechbv the City, residential sprinklers have been •'
installed in the home-onLot 12 of Tract 98-12; without the consent of the City, they shall not be removed
or altered; prcjyrtJed however, they may be repaired or replaced^
2.32 National Pollutant Discharge Elimination System Requirements. As required by the Qity,
the Owners and occupants of Lots within the Properties are required toNqomply with the following
requirements:
(a) The Owners and occupants of the Lots shall coordinate efforts to establish or
work with established disposal programs to remove and properly dispose of toxic and hazardous waste
products from the Properties.
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(b) Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze,
solvents, paints, paint thinners, wood preservatives and other such fluids shall not be discharged into
any street, public or private, or into storm drain or storm water conveyance systems. Use and disposal
of^ pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical treatments shall
meet Federal, State, County and City requirements as prescribed in their respective containers.
(c) Best Management Practices as set forth in the "California Storm Water Best
Management Practices Handbook" shall be used to eliminate or reduce surface pollutants when planning
any changes to the landscaping and surface improvements within the Properties.
ARTICLE III
GOVERNMENTAL REQUIREMENTS
The Properties and their use are subject to the jurisdiction of, and the ordinances, regulations
and permits issued by, the City and all other governmental entities for the Properties Each Owner shall
comply with these and all other applicable governmental requirements.
ARTICLE IV
DECLARANT EXEMPTION
Nothing in this Declaration shall be understood or construed to:
(a) Prevent Declarant, or its contractors or subcontractors, from doing on any of the
Properties owned by it whatever they determine to be necessary or advisable in connection with the
completion of subdivision, residential and other improvements, including, without limitation, the alteration
of construction plans and designs as Declarant deems advisable in the course of development; or
(b) Prevent Declarant, or its representatives, from erecting, constructing and maintaining
on any of the Properties owned or controlled by Declarant, or its contractors or subcontractors, such
structures as may be reasonably necessary for the conduct of its or their business of completing said
work and establishing the Properties as a residential community and disposing of the same by sale, lease
or otherwise; or
(c) Prevent Declarant, or its contractors or subcontractors, from conducting on any
land owned or controlled by-Declarant, its or their business of developing, subdividing, grading and
constructing dwelling units and other improvements on the Properties as a residential community and
of disposing of dwelling units thereon by sale, lease or otherwise; or
(d) Prevent Declarant, its contractors or subcontractors, from maintaining such sign
or signs on any land owned or controlled by any of them as may be necessary in connection with the
sale, lease or other marketing of Lots or dwelling units on the Properties; or
(e) Prevent Declarant, at any time prior to acquisition of title to a Lot by a purchaser
from Declarant, to establish on that Lot additional licenses, reservations and rights of way to itself, to
utility companies, or to others as may from time to time be reasonably necessary to the proper development
and disposal of the Properties; or
(f) Prevent Declarant from using any Lot owned or leased by it for model home display
purposes or for real estate sales purposes; or
(g) Limit or interfere with the right of Declarant to subdivide or resubdivide any portion
of the Properties nor to complete Improvements to any Lot owned by Declarant nor to construct additional
Improvements as Declarant deems advisable in the course of selling the Properties, including constructing
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and maintaining on the Properties such structures and displays as may be reasonably necessary for the
conduct of its business of completing the work of development of the Properties and disposing of the
same by sale, lease or otherwise.
ARTICLE V
MAINTENANCE RESPONSIBILITIES
5.1 In General. Each Owner shall keep and maintain in good repair and appearance all portions
of his or her Lot and Improvements thereon including, but not limited to, his or her residence and any
private drainage system, irrigation system, fence and/or wall, and brow ditch which are located within
his or her Lot (other than any portion of his or her Lot the maintenance of which is the responsibility of
the City). In addition, each Owner shall maintain his or her Lot in accordance with all applicable requirements
of the City. No Improvement within the Properties shall be permitted to fall into disrepair. The costs of
maintenance and repair of fences and walls which are Ipcated at the boundary between Lots shall be
shared equally by the Lot Owners; however, each Owner will be solely obligated to maintain the appearance
of interior surfaces of such fences or walls.
5.2 Landscaping. The Owner of each Lot shall water, weed, maintain and care for the
landscaping located on his or her Lot (other than any portion the maintenance of which is the responsibility
of the City) so that the same presents a neat and attractive appearance at all times. All trees, hedges
and other plant materials shall be trimmed by the Owner of the Lot upon which they are located so they
do not create a nuisance, which determination shall be within the sole judgment of the Architectural
Committee. Each Owner shall maintain the landscaping on his or her Lot in accordance with all applicable
requirements of the City.
ARTICLE VI
ANNEXATION
Additional residential property may be annexed to the Properties and to this Declaration upon
the vote or written assent of two-thirds (2/3) of the Lots then subject to this Declaration. Upon such
approval, the owner of the property wishing it to be annexed may file of record a Declaration of Annexation
which shall extend the scheme of this Declaration to such property.
ARTICLE VII
RIGHTS OF LENDERS
7.1 Priority of Lien of Mortgage. No breach of the covenants, conditions or restrictions herein
contained shall affect, impair, defeat or render invalid the lien or charge of any first Mortgage made in
good faith and for value encumbering any Lot, but all of said covenants, conditions and restrictions shall
be binding upon and effective against any Owner whose title is derived through foreclosure or trustee's
sale, or otherwise, with respect to a Lot.
7.2 Curing Defaults. A Mortgagee who acquires title by judicial foreclosure, deed in lieu of
foreclosure or trustee's sale shall not be obligated to cure any breach of the provisions of this Declaration
which is noncurable or of a type which is not practical or feasible to cure.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Enforcement. Declarant, any Owner and the City shall have the right to enforce, by any
proceedings at law or in equity, all restrictions, covenants and reservations now or hereafter imposed
by the provisions of this Declaration. Failure to enforce any provision of this Declaration shall in no event
be deemed a waiver of the right to do so thereafter. Enforcement shall be by proceeding at law or in
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equity against any person or persons violating or attempting to violate any covenant either to restrain
violations and/or to recover damages.
8.2 Severabilitv. Should any provision in this Declaration be void or become invalid or
unenforceable in law or equity by judgment or court order, the remaining provisions hereof shall be and
remain in full force and effect.
8.3 Amendments. These covenants and restrictions may be amended at any time and from
time to time by an instrument in writing signed by the Owners of two-thirds (2/3rds) or more of the Lots
subject to this Declaration; provided, however, that no amendment to this Section or any provision which
is required by a condition set forth in the City Resolution shall become effective without the prior written
approval of the City Planning Director. Such written instrument shall become effective upon the recording
of the same in the Office of the County Recorder of San Diego County, California. No provision of this
Declaration regarding Declarant's rights shall be amended without the written consent of Declarant.
8.4 Extension of Declaration. Each and all of the covenants, conditions and restrictions shall
run with and bind the Properties for a term of fifty (50) years from the date the Declaration is recorded,
after which date they shall automatically be extended for successive periods of ten (10) years, unless
the Owners of two-thirds (%) of the Lots subject to the Declaration have executed and recorded at any
time within six (6) months prior to the end of the fifty (50) year period, or within six (6) months prior
to the end of any such ten (10) year period, in the manner required for a conveyance of real property,
a written instrument in which it is agreed that the restrictions shall terminate at the end of the fifty (50)
year period or at the end of any ten (10) year period.
8.5 Reservations of Easements by Declarant. There is hereby reserved by Declarant, together
with the right to grant and transfer the same, easements over the Properties for the installation, mainte-
nance, service, repair, reconstruction and replacement of electric, telephone, cable television, water,
gas, sanitary sewer lines and drainage facilities as shown on the recorded tract of the Properties.
8.6 Attorneys' Fees. In the event Declarant or any Owner shall commence litigation to enforce
any of the covenants or restrictions herein contained, the prevailing party in such litigation shall be entitled
to costs of suit and such attorneys' fees as the Court may adjudge reasonable and proper. The "prevailing
party" shall be the party in whose favor a final judgment
is entered.
IN WITNESS WHEREOF, the undersigned, being Declarant herein, has executed this document
as of the date first hereinabove written.
LOMA VERDE, INC., a California corporation, dba Pacific Scene
Homes
By_
Title
By.
Title
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On , before me, , Notary Public, personally
appeared
, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT "A"
Subsurface Drainage System
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EXHIBIT "B"
Fence and Wall Plan
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EXHIBIT "C"
Brush Management Lots & Construction Restriction Areas
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SUBORDINATION AGREEMENT
, being the beneficiary under deed of trust recorded
• as Document No. with the Office of the County Recorder of San
Diego County, California, hereby declares that the lien and charge of the deed of trust are and shall be
subordinate to the Declaration of Restrictions to which this Subordination Agreement is attached.
By.
Title.
By
Title
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me, , Notary
Public, personally appeared
, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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