DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF SHADOW HAWK
INDEX
THIS DECLARATION is made on the date set forth below by Latrobe
Properties, II, a General Partnership (referred to in this Declaration as
"Declarant").
1. 1. Description of Real Property.
Declarant is the owner of that certain real property located in
the unincorporated area of El Dorado County, California, and is more
particularly described on Exhibit "A" attached hereto and by
reference incorporated in this Declaration.
1.2. Common Plan for Project.
By this Declaration, Declarant intends to establish a common scheme and
plan for architectural approval and control of the Project. NOW,
THEREFORE, Declarant hereby declares that the real property described on
Exhibit "A" shall be held, conveyed, mortgaged, encumbered,
leased, rented, used, occupied, sold and improved, subject to the
following declarations, limitations, covenants, conditions, restrictions
and easements, all of which are for the purpose of enhancing and
protecting the value and attractiveness of the Project, and every part
thereof, in accordance with the plan for improvement of the Property and
the division thereof into Lots. All of the limitations, covenants,
conditions, restrictions and easements shall constitute covenants which
shall run with the land and shall be binding upon Declarant and its
successors and assigns, and all parties having or acquiring any right,
title or interest in or to any part of the Project.
RETURN TO INDEX
In addition to other definitions provided for herein, the following
terms shall have the following meanings:
2.1. "Architectural Control Committee" or
"Committee" shall mean the committee created pursuant to the
Section below entitled "Architectural Control" and which is
charged with architectural approval and control of the Improvements within
the Project.
2.2. "Architectural Control Guidelines" or
"Guidelines" shall mean the written architectural review
standards, if any, promulgated by the Architectural Control Committee as
provided in the Section below entitled "Architectural
Control".
2.3 Association. The term "Association" shall mean the Sun
Ridge East Owners Association, a California non-profit mutual benefit
corporation, the members of which shall be the Owners of Lots in the
Project, their successors and assigns.
2.4. "County" shall mean El Dorado County, California, the
County in which the Project is located.
2.5. "Declarant" shall mean Latrobe Properties, II, a General
Partnership, its successors and assigns if such successors and assigns are
assigned the rights of Declarant pursuant to Section 8.3 hereof, entitled
"Successor", or if such successor or assignee is a mortgagee
acquiring Declarant's interest in the Project by foreclosure or by deed in
lieu of foreclosure.
2.6. "Improvement" shall mean Structures, as defined herein,
substantial plants such as trees, hedges, shrubs, bushes and major
landscaping of any kind. "Improvement" shall also mean any
excavation, fill, ditch, diversion dam or other thing or device which
affects or alters the natural flow of surface or subsurface water from,
upon, under or across any portion of the Project. "Improvement"
shall also mean any utility line, conduit, pipe or other related facility
or equipment.
2.7. "Lot" shall mean any parcel of land shown on the Map,
including the legal re-subdivision of any such Lot into any additional
parcel or parcels, provided, however, that such resubdivision is not
prohibited by this Declaration.
2.8. "Map" shall mean that subdivision map entitled
"Shadow Hawk Unit No. 1", which Map recorded October 27, 1997,
in Book H of Maps, Page 139 of the Official Records of said County. Said
Map is also described in Exhibit "A" of this Declaration.
2.9. "Member" shall mean a person or entity holding a
membership in the Association as provided herein. Each Owner or Co-Owner
of a Lot shall be a member.
2.10. "Mortgage" shall mean a mortgage or deed of trust
encumbering a Lot. "mortgagee" shall include the beneficiary
under a deed of trust.
2.11. "Owner" shall mean each person or entity, including
Declarant, holding a record fee ownership interest in a Lot.
"Owner" shall not include persons or entities who hold an
interest in a Lot merely as security for the performance of an
obligation.
2.12. "Phase" shall mean and refer to each group of lots
within the Project which are described as a phase of development in a
Final Subdivision Public Report issued by the California Department of
Real Estate.
2.13. "Project" or "Property" shall mean the real
property described on Exhibit "A" attached hereto, including any
Improvements erected thereon.
2.14. "Residence" shall mean a dwelling structure on a Lot,
but is not intended to exclude a "guest house" for the
entertainment of social guests, nor servants' quarters for servants or
other employees employed upon the premises of a Lot.
2.15. "Structure" shall mean any tangible thing or device to
be fixed permanently or temporarily to real property including, without
limitation, any building, garage, driveway, walkway, concrete pad, asphalt
pad, fence, wall, pole, sign, antennae, sprinkling system, swimming pool,
spa, tennis court or trash enclosures.
RETURN TO INDEX
3.1. General Limitation. Subject to the exemptions described
below, no Improvement and/or Structure may be constructed, erected,
painted, altered or changed on any portion of the Project without the
prior written approval of the Architectural Control Committee (SHARC)
("Committee").
3.2. Exemption. Notwithstanding the Subsection above entitled
"General Limitation", Committee approval shall not be required
for the following:
(a) Improvements constructed by, at the direction of, or with the
approval of Declarant;
(b) normal maintenance of exempt or previously approved
Improvements;
(c) repair or rebuilding of an exempt or previously approved
Improvement
(d) changes to the interior of an exempt or previously approved
Structure;
(e) work reasonably required to be performed in an emergency for the
purpose of protecting any person or property from damage.
RETURN TO INDEX
3.3. Architectural Control Committee.
a. Number and Appointment. The Committee shall be composed of three (3)
members. The initial members shall be appointed by Declarant. Declarant
shall have the right to appoint replacements at any time to the Committee
for a period of three (3) years from the date of recordation of this
Declaration. After the initial three (3) year period, the Committee
members shall have the full authority to designate a successor in the
event of death or resignation of a member. Except for the power of the
Declarant to appoint all members during the initial three (3) year period,
at any time thereafter the then record owners of the majority of Lots
shall have the power, through a duly recorded written instrument, to
change the membership of the Committee.
b. Operation. The Committee shall meet from time to time as necessary
to properly perform its duties hereunder. A majority of the committee
members may designate a representative of the Committee to act for it.
Except as provided elsewhere herein, any decision may be made by the
Committee upon an affirmative vote of two-thirds (2/3) of its members. The
Committee shall keep and maintain a record of all actions from time to
time taken by the Committee at meetings or otherwise, and shall maintain
files of all documents submitted to it. The members of the Committee shall
not receive any compensation for services rendered. All members of the
Committee shall be entitled to reimbursement from fees collected by the
Committee for reasonable expenses incurred by them in connection with the
performance of their duties.
c. Duties. The Committee may adopt Architectural Control Guidelines
("Guidelines") as provided below and shall perform other duties
imposed upon it by this Declaration or applicable laws and
regulations.
d. Address . The address of the Committee shall be determined by
resolution of the Committee. Such address shall be the place for the
submittal of plans and specifications and the place where current copies
of the Guidelines shall be kept. The initial address for the Committee
shall be 3009 Douglas Blvd., Suite 150, Roseville, CA 95661.
e. Guidelines. The Committee may, from time to time, adopt or amend
Guidelines prospectively. Said
Guidelines shall interpret and implement,
the provisions of this Section entitled "Architectural Control"
by setting forth more specific standards and procedures for Committee
review. All guidelines shall be in compliance with all applicable laws and
regulations of any governmental entity having jurisdiction over
Improvements in the Project, shall incorporate high standards of
architectural design and construction engineering, shall be in compliance
with the minimum standards set forth herein, and otherwise shall be in
conformity with the purposes and provisions of this Declaration. A copy of
the current Guidelines, if any, shall be available for inspection and
copying by any Owner at any reasonable time during customary and normal
business hours.
f. Standards. The following minimum standards shall apply
to any Improvements constructed, painted, altered or changed on the
Project:
(1) All Improvements shall be constructed, painted and changed in
compliance with the applicable zoning laws, building codes, this
Declaration, and all other laws, ordinances and regulations applicable
to Project Improvements.
(2) All Residences shall have a minimum area of two thousand (2,000)
square feet (excluding garages, carports, accessory buildings, covered
or uncovered patios and porches). This subparagraph (2) shall not be
applicable to any "guest house" for the entertainment of
social guests, nor servants' quarters for servants or other employees
employed upon the premises of a Lot.
(3) All Lots shall have a minimum of two enclosed parking
spaces.
(4) A portion of each Lot shall be landscaped with some combination
of the following: trees, shrubs, ground cover, lawn, natural vegetation,
and limited decorative rock, bark, and similar materials. Berming may be
utilized so long as it does not disrupt proper drainage within the
Project. Landscaping shall be designed so as to compliment, protect and
harmonize with the natural terrain, existing trees and vegetation and
shall be consistent with generally accepted, customary and conventional
landscape designs. Stone. gravel, concrete and similar materials shall
be used only for complimentary and supplementary purposes and no Lot
shall be covered entirely with such materials.
(5) All exterior and decorative lighting shall be designed to
eliminate glare and annoyance to other Lot Owners. Lighting shall be
shielded and directed downward. Colored landscaping lighting shall be
prohibited, unless approved by the Architectural Control
Committee.
(6) All solar collection devices shall be integrated aesthetically
and screened as much as possible from adjacent portions of the
Project.
(7) In reviewing proposed Improvements for approval, the Committee
shall consider at least the following:
(a) Does the proposed Improvement conform to the purposes and
provisions of the Project Documents?
(b) Is the proposed Improvement of a quality of workmanship and
materials comparable to other Improvements that are proposed or
existing on the Project?
(c) Is the proposed Improvement of a design and character which is
harmonious with proposed or existing Improvements and with the natural
topography in the immediate vicinity?
(d) Will the proposed Improvement unreasonably interfere with or
otherwise impair the view or solar access of other portions of the
Project?
RETURN TO INDEX
3.4. Committee Approval Process: Approval Application.
Any person proposing to construct, paint, alter or change any
Improvement on the Project which requires the prior approval of the
Committee shall apply to the Committee in writing for approval of the work
to be performed and the time schedule for performing such work. The
Committee may charge an applicant a reasonable fee for application review.
In the event additional plans and specifications for the work are required
by the Committee, the applicant shall be notified of such requirement
within thirty (30) days of receipt by the Committee of his initial
application or the application shall be deemed sufficiently submitted as
of that date. If timely notified, the applicant shall submit additional
plans and specifications for the proposed work in the form and content
reasonably required by the Committee and his application shall not be
deemed sufficiently submitted until that date. Such plans and
specifications may include, but not be limited to, showing the nature,
kind, shape, color, size, materials and location of the proposed work, or
the size, species and location of any plants, trees, shrubs and other
proposed landscaping.
3.5. Review and Approval.
Upon sufficient submission of an application for Committee review, the
Committee shall proceed expeditiously to review all of the documents to
determine whether the proposed work is in compliance with the provisions
and purposes of the Project Documents and all Guidelines of the Committee
in effect at the time the documents are submitted. In the event the
Committee falls to approve an application, it shall notify the applicant
in writing of the specific matters to which it objects. In the event the
Committee falls to notify the applicant of the action taken by the
Committee within thirty-five (35) days after sufficient submission of an
application, the application shall be deemed approved. One set of plans as
finally approved shall be retained by the Committee as a permanent
record.
3.6. Commencement.
Completion of Approved Work. Upon receipt of the approval of the
Committee, the applicant shall proceed to have the work commenced and
diligently and continuously pursued to completion in substantial
compliance with the approval of the Committee including all conditions
imposed therewith. The approval of the Committee shall be effective for a
period of one (1) year after the date of the approval subject to the right
of the Committee to provide for a shorter or longer period at the time of
its approval, or subsequently to extend the period upon a showing of good
cause, and in the event the approved work is not commenced within the
effective period of the approval, then the applicant, before commencing
any work shall be required to resubmit his application for the approval of
the Committee. All approved work shall be completed within one (1) year
after the date of commencement, or such other reasonable period specified
by the Committee at the time of approval, with the period of time subject
to extension by the number of days that work is delayed by causes not
under the control of the applicant or his contractor or as otherwise
extended by the Committee. Upon completion of approved work, the applicant
shall give written notice thereof to the Committee. After receiving fee
title to a Lot with a completed Residence, the Owner of such Lot shall
have two (2) months from such conveyance of title to provide landscape
plans to the Committee for approval and, after approval by the Committee,
such Owner shall have six (6) months to complete the work of landscaping.
For good cause, the Committee may grant reasonable extensions to the time
periods noted in this paragraph. If for any reason the Committee fails to
notify the applicant of any noncompliance within sixty (60) days after
receipt of said notice of completion from the applicant, the improvement
shall be deemed to be completed in accordance with said approved
plans.
3.7. Inspection, Non-Compliance.
The Committee, or any authorized representative shall have the right
during normal business hours, after forty-eight (48) hours notice to the
Owner thereof, to enter upon any portion of the Project for the purpose of
determining whether or not any work is being performed or was performed in
compliance with this Declaration and the Guidelines. If at any time the
Committee determines that work is not being performed or was not performed
in compliance with this Declaration and the Guidelines, whether based on a
failure to apply for or obtain approval, a failure to comply with
approval, a failure to timely commence or complete approved work or
otherwise, the Committee shall notify the owner in writing of such
non-compliance specifying the particulars of non-compliance, and demanding
that the owner remedy such non-compliance within a reasonable and
specified period. In the event that the Owner fails to remedy such
non-compliance within the specified period, the Committee shall have the
right and duty to remedy the non-compliance in any appropriate manner
permitted by this Declaration and the Guidelines, or as otherwise
permitted by law or in equity, including but not limited to removing the
non-complying Improvement, correcting the non-complying Improvement,
completing the non-complying Improvement, or recording a notice of non-compliance
or non-completion on the property, as appropriate. The Owner shall have
the obligation to reimburse the Committee for any costs incurred in
enforcing these provisions and such costs may be recovered by the
Committee in an action of law against such individual lot owner.
3.8. Waiver. The approval by the Committee of any plans, drawings or
specifications for any Improvements constructed or proposed, or in
connection with any other matter requiring the approval of the Committee
shall not be deemed to constitute a waiver of any right to withhold
approval of any similar plan, drawing, specification or matter submitted
for approval. Where unusual circumstances warrant it, the Committee may
grant reasonable variances from the architectural control provisions
hereof or from the Guidelines. Such variances shall be made on a case-by-case
basis and shall not serve as precedent for the granting of any other
variance.
3.9 Estoppel Certificate.
Within thirty (30) days after written demand is delivered therefore to
the Committee by any Owner or Mortgagee, and upon payment to the Committee
of a reasonable fee (as fixed from time to time by resolution of the
Committee), the Committee shall execute and deliver in recordable form, if
requested, any estoppel certificate executed by any two (2) of its
members, certifying, with respect to any Lot of said Owner or Mortgagee,
that as of the date thereof either (a) all improvements made and other
work done upon or within said Lot comply with the requirements of the
Committee and this Declaration, or (b) such improvements or work do not so
comply, in which event the certificate shall also identify the non-complying
improvements or work and set forth with particularity the basis of such
noncompliance. Such statement shall be binding upon the Committee in favor
of any person who may rely thereon in good faith.
3.10. Liability.
Neither the Declarant, the Committee, nor any Committee member thereof
shall be liable to any Owner or to any third party for any damages, loss,
or prejudice suffered or claimed on account of (a) the approval or
disapproval of plans, drawings and specifications, whether or not
defective, (b) the construction or performance of any work, whether or not
pursuant to approved plans, drawings and specifications, (c) the
development of any property within the Project, (d) the execution and
filing of an estoppel certificate pursuant to Section 3.9, or (e) the
execution and filing of a notice of noncompliance or non-completion
pursuant to Section 3.7, whether or not the facts therein are correct, if
the Declarant, the Committee or such Committee member has acted in good
faith on the basis of such information as may be possessed by them.
Specifically, but not by way of limitation, it is understood that plans
and specifications are not approved for engineering design, and by
approving such plans and specifications neither Declarant, the Committee,
nor any Committee member thereof, assumes liability or responsibility
therefor, or for any defect in any structure constructed from such plans
and specifications.
RETURN TO INDEX
4.1. Use of Lots.
No Lot, or any portion thereof, shall be occupied and used except for
the site of a single family Residence by the Owners, their contract
purchasers, lessees, tenants, or social guests. This Subsection is
intended to exclude every form of boarding or lodging house, sanitarium
and hospital, and the like. No trade or business or commercial activity
shall be carried on or conducted upon any Lot, except as follows: a.
Declarant, its successors or assigns, may use any Lot in the Project owned
by Declarant for a model home site and display and sales office during
construction and until the last Lot is sold by Declarant, or until 5 years
from the date of closing of the first sale of a Lot in the Project,
whichever occurs first; and b. This Subsection shall not prohibit home
occupations so long as they are merely incidental to the use of the Lot as
a Residence, are permitted by local law, are conducted in such a manner as
to not adversely affect other Owners' use and enjoyment of the Project,
and have received prior written approval from the Committee.
4.2. Vehicle Restrictions.
No trailer, camper, mobile home, commercial vehicle, truck (other than
a standard size pickup truck), inoperable automobile, boat or similar
equipment shall be permitted to remain upon any area within the Property,
except if said vehicle is screened from view of any street, other than
temporarily, not to exceed two (2) weeks within any six (6) month period.
Commercial vehicles shall not include sedans or standard size pickup
trucks which are used both for business and personal use, provided that
any signs or markings of a commercial nature on such vehicles shall be
unobtrusive and inoffensive as determined by the Committee. No noisy or
smoky vehicles shall be operated on the Property. No off-road unlicensed
motor vehicles shall be operated upon the Property.
4.3. Signs.
No sign larger than six (6) square feet shall be erected within the
Project without the prior approval of the Committee. No sign of any kind
shall be displayed to the public view on or from any portion of the
Property without the approval of the Committee except as follows:
a. One sign of customary and reasonable dimensions advertising a Lot
for sale, lease, rent or exchange displayed from a Lot; and
b. Such signs as may be used by Declarant or its assignees in
connection with the development of the Project and sale of Lots; and c.
Such other signs or notices as are required by law or as are otherwise
necessary to perfect a right provided for in law.
4.4. Animals.
No pigs, male (billy) goats or peacocks shall be raised, bred or kept
on any Lot or portion of the Property; provided, however, one (1) pig per
Lot may be allowed if it is the subject of an ongoing 4H or FFA project
of an Owner's family. Usual and ordinary household pets such as dogs,
cats, or household birds may be kept, but only in such numbers and types
as will not create a nuisance or disturb the health, safety, welfare or
quiet enjoyment of the Lots by the Owner; and provided that they are kept
under reasonable control at all times and in accordance with applicable
laws. All animal wastes must be properly disposed of in accordance with
applicable County regulations.
4 5. Trash; Storage of Materials.
All garbage and trash shall be regularly removed from the Property, and
shall not be allowed to accumulate thereon. It shall be placed and kept in
covered sanitary containers where it is not visible from any neighboring
Lot except for a reasonable time prior to or after collection. All
woodpiles or storage piles shall be kept screened and concealed from view
of other Lots and streets. Garbage and trash shall be placed for pick up
as required by the disposal service and any rules adopted by the
Committee.
4.6. Towers, Satellite Dishes, Etc.
Except as installed by Declarant, no towers, aerials or other
facilities for the reception or transmission of radio or television
broadcasts or other means of communication shall be erected or maintained
on any Lot except for installations within Structures constructed on a Lot
or by underground conduits or satellite dishes not to exceed three (3)
feet in diameter. No such item or equipment shall be erected or maintained
upon the outside of any building on the Properties unless the same has
been approved in writing by the Architectural Control Committee.
4.7. Design and Construction Restrictions.
The construction of Improvements on each Lot is subject to the
"Guidelines", if any, as promulgated and administered by the
Architectural Control Committee.
4.8. Building Location.
No building shall be located on any lot nearer to the front lot line or
nearer to the side street line than the minimum building setback lines as
required by the County of El Dorado, including any setback variance which
the County might approve.
4.9. Window Coverings.
Windows shall be covered only by drapes, shades or shutters and shall
not be painted or covered by foil, cardboard, sheets or similar materials.
Subject to Committee approval, manufactured solar screens may be
allowed.
4.10. Clotheslines.
Exterior clotheslines or other outside clothes drying or airing
facility may be erected or maintained on the Properties in any location
where the same are screened from view of any street.
4.11. Major Appliances.
No major appliances, including without limitation clothes washers,
clothes dryers, refrigerators or freezers may be kept, stored or operated
on any balcony, patio, porch or other exterior area of any Structure or
Improvement.
4.12. Drainage.
Subject to the provisions of paragraph 4.20 hereof, no Owner shall do
any act or construct any improvement which would alter the natural or
established drainage systems or patterns within the Project without the
approval of the Committee.
4.13. Sight Distance at Intersections.
No fence, wall, hedge or shrub planting which obstructs sightlines at
elevations between two (2) and six (6) feet above the roadways shall be
placed or permitted to remain on any corner lot within the triangular area
formed by the street property lines and a line connecting them at points
twenty-five (25) feet from the intersection of the street lines, or in the
case of a rounded property corner, from the intersection of the street
property lines extended. The same sightline limitations shall apply on any
lot within ten (10) feet from the intersection of a street property line
with the edge of a driveway or alley pavement. No tree shall be permitted
to remain within such distances of such intersections unless the foliage
line is maintained at sufficient height to prevent obstruction of such
sightlines. The provisions of this paragraph shall not supersede any more
restrictive requirement of any local or state agency.
4.14. Nuisances, Offensive Activities.
No noxious, illegal, or seriously offensive activities shall be carried
on within any Lot, or in any other part of the Property, nor shall
anything be done thereon which may be or may become an annoyance or a
nuisance to, or which may in any way interfere with the quiet enjoyment
of, each Owner's Lot, or which shall in any way increase the rate of
insurance for any other Lot (or Owner).
4.15. Temporary Structures.
Structures which are temporary in character, including, without
limitation, any trailer, tent, shack, garage, barn or other out-building,
shall not be used as a Residence on any Lot at any time; provided,
however, that (a) Declarant reserves the right to construct and maintain
temporary buildings, structures and vehicles on the Property in connection
with the construction and administration of initial Improvements; and (b)
this subsection shall not be construed or interpreted to prohibit the
erection or construction of structures permitted pursuant to Section 714.5
of the Civil Code of the State of California.
4.16. Compliance with Declaration.
Each Owner, contract purchaser, lessee, tenant, guest, invitee or other
occupant of a Lot shall comply with the provisions of this
Declaration.
4.17. Fences. Barrier perimeter fencing on each Lot, such as cyclone,
chain link and others, is prohibited. Additionally, no such fencing shall
be installed within fifty (50) feet of non-building set backs (as noted on
the Map) that would inhibit free movement of wildlife. The design,
location and appearance of fencing shall be submitted to the Committee for
approval prior to construction.
4.18. Trees. Existing trees six inches (6") diameter at breast
height (DBH) shall be retained where ever possible. Trees 6" DBH to
less than 20" DBH located in an area of moderate grading (up to 3
feet of cut or fill) shall only be removed if an arborist, retained by the
Declarant or Owner, determines it is impractical to preserve the tree(s)
with retaining walls or other construction features. The arborist's
recommendations shall be noted on a plan signed by the arborist with a
copy provided to the Planning Director of the County. Trees 20" DBH
or greater shall not be removed unless: (a) topographic constraints make
alternative infeasible; or (b) the Planning Director of the County concurs
that no feasible alternative exits.
4.19 Burning.
If burning activities are to occur during the construction of
Improvements on the Project, the one conducting the burning shall obtain
the necessary burning permits from the California Department of Forestry
and air pollution permits from the County prior to said burning
activities.
4.20. Wetland Areas, Setback Area Non-Development.
Those areas noted on the Map as "Wetland Areas" and the
associated "50' Non-Building Setback Area" are not to be
developed, landscaped or disturbed but are to be left in their natural
state, undisturbed.
4.21. Permanent Non-Development Area (Archeologically sensitive Area).
The Project area designated in Exhibit "A" as "Parcel
2" (also known and referred to as the "Archeologically sensitive
Area") and a 50 feet buffer area adjacent thereto (herein
collectively referred to as the Permanent Non-Development Area
(Archeologically sensitive Area) are not to be developed, landscaped or
disturbed but are to be left in their natural state, undisturbed. If, in
the future, annexable property is annexed into the Project, and if such
annexable property includes property surrounding the above-described
Permanent Non-Development Area (Archeologically sensitive Area), the legal
description of the above-described Permanent Non-Development Area
(Archeologically Sensitive Area) as shown in Exhibit "A" hereto
shall be superseded by the map and associated property descriptions of
annexable property which shall accurately depict the location of the above
described Permanent Non-Development Area (Archeologically sensitive
Area).
4.22. Temporary Non-Development Area.
The Project Area designated in Exhibit "A" as Lot 14, and
"Parcel 3" together with a 50 feet buffer area adjacent thereto
(all of which are herein collectively referred to as the Temporary Non-Development
Area) are not to be developed, landscaped or disturbed but are to be left
in their natural state, undisturbed. Upon issuance of a letter signed by
the El Dorado County Planning Department to the Declarant or the
Association, referencing the restriction set forth in this paragraph 4.22,
and stating that this restriction is no longer necessary or words to that
effect, then, without further notice or documentation being required, the
restriction contained in this paragraph 4.22 shall immediately become null
and void, and shall be of no more force or effect.
4.23. Elderberry Beetle Buffer. All elderberry bushes shall be avoided
in accordance with the U.S. Fish and Wildlife Service's Mitigation
Guidelines for the Valley Elderberry Longhorn Beetle, which mitigation
guidelines are attached to this Declaration as Exhibit "C." All
Owners, their tenants, guests and invitees shall avoid and not impact the
elderberry bushes and, further, shall maintain a perpetual buffer zone of
100-feet from all elderberry bushes on the Project, as "buffer
avoidance area" is defined and described in Exhibit
"C."
RETURN TO INDEX
5.1. Mortgages Permitted.
Any Owner may encumber his Lot with Mortgages.
5.2. Priority of Mortgage.
Notwithstanding any other provision of this Declaration, it is hereby
provided that a breach of any of the conditions contained in this
Declaration by any Owner or of any re-entry by reason of such breach,
shall not defeat or render invalid the lien of any mortgage or deed of
trust made in good faith and for value as to said Lot or any part
thereof.
5.3. Effect of Breach.
No breach of any provision of this Declaration shall invalidate the
lien of any Mortgage made in good faith and for value, but all of the
covenants, conditions, restrictions, declarations, easements and
limitations of this Declaration shall be binding on any Owner whose title
is derived through foreclosure sale, trustee's sale, or otherwise.
RETURN TO INDEX
6.1. Association Maintenance Obligations.
The Association shall be responsible for maintaining the following in
good condition and repair:
a. Roads.
The Association shall maintain or provide for the maintenance
of all of the private roads located within the Project, as and where
depicted on the Map. Repairs or maintenance of said roads shall be
required when a majority of the Members, excepting the Owner of Lot 6 and
the Owner of Lot 7, reach a decision that such repairs or maintenance are
necessary. Pursuant to that decision the Association shall then initiate
the repairs or maintenance within sixty (60) days, with each of the
Members, excepting the Owner of Lot 6 and the Owner of Lot 7, bearing
equal shares of the costs and expense thereof, regardless of whether such
Owners, excepting the Owner of Lot 6 and the Owner of Lot 7, have
concurred in the decision to initiate repairs or not. Nothing herein shall
be interpreted as requiring contribution for major improvements to said
roads, however, if such improvements are constructed, this Declaration
shall apply to the repair or maintenance of such improved facilities. Each
Owner agrees that if he/she causes or allows said road to be used in any
manner which results in unusual wear or damage to the surface of said
road, he/she shall bear the costs and expenses of restoring said surface
at his/her sole and separate cost and expense. If any Owner fails, after
demand in writing to pay his/her portion of the expense, action may be
brought against such Owner in a court of competent jurisdiction by the
other Owners, either jointly or severally, or by the Association, or both,
for construction and costs of such legal action, including attorney's
fees. In the event any Owner desires that repairs or maintenance be
performed on said roads and cannot obtain the concurrence of a majority of
those Owners, excepting the Owner of Lot 6 and the Owner of Lot 7, within
six (6) months after written request for such concurrence, said Owner
shall have the right to apply for such relief as may be available under
the provisions of Civil Code Section 845 or amendments thereof as if this
Declaration were not in effect. The Owner of Lot 6 and the Owner of Lot 7
are not bound to the Association's obligation to maintain the roads or pay
for such maintenance, and therefore are not to be counted in determining a
majority decision of the Members regarding same.
b. Fire Protection.
The Association shall maintain the fire protection water supply system
of the Project, in a manner required by and subject to the approval of the
Latrobe Fire Protection District. In addition, the Association shall
provide for brush clearance within ten (10) feet of all roads within the
Project. Each Owner agrees that if he/she causes damage to said fire
protection water supply system, he/she shall bear the costs and expenses
of restoring said system at his/her sole and separate cost and expense. If
any Owner fails, after demand in writing to pay his/her portion of the
expense of maintaining said system and brush removal, action may be
brought against such Owner in a court of competent jurisdiction by the
other Owners, either jointly or severally, or by the Association, or both,
for maintenance and costs of such legal action, including attorney's fees.
At some future time, the Latrobe Fire Protection District or its successor
may install a fire hydrant that is not within the Project and desire to
hook-up said hydrant to the Association's water supply. If the Association
is requested to permit said hook-up, the Association shall approve the
action.
c. Wetland Areas.
As noted in the Sub-section above entitled
"Wetland Areas Non-Development," those areas noted on the Map as
"Wetland Areas" and the associated "50' Non-Building
Setback Area" are not to be developed, landscaped or disturbed but
are to be left in their natural state, undisturbed. Therefore, the
Association's responsibilities with regard to the Wetland Areas and Non-Building
Setback Areas are to:
(1) monitor the Wetland Areas for any unauthorized uses,
(2) enforce the proscription against any development and
(3) report all incidences of violation to the United States Army Corps
of Engineers (hereinafter "Corps of Engineers"). "Wetland
Areas" and their associated "50' Non-building Setback
Areas" in addition to those identified on the Map and in addition to
those which will be referred to in the map that will be recorded covering
the property referred to in Exhibit "B" and which will affect
the map referred to in Exhibit "A" (this phase of the Project)
will be described in the Declaration of Annexation referred to below. All
"Wetland Areas" and their associated "50' Non-building
Setback Areas," whether shown on a map of additional and as yet not-described
areas, shall not be grazed during the period from October 1st through May
15th.
RETURN TO INDEX
7.1 Annexation of Additional Property.
Additional property may be annexed to and become subject to this
Declaration by any of the following methods set forth in this Section.
Upon annexation, additional parcels shall become subject.to this
Declaration without the necessity of amending individual sections thereof
7.2 Annexation Pursuant to Plan. The property described on Exhibit
"B" shall be annexed to and become part of the Project, subject
to this Declaration, and subject to the jurisdiction of the Association,
without the assent of the Association or its members, or without the
assent of the Owners, on condition that:
a. Date of Annexation. Any annexation pursuant to this Section shall
be made by Declarant or its assigns prior to the fifth anniversary of
the issuance of the original Public Report for the immediately
proceeding phase. Declarant or its assigns shall be under no obligation
to develop or annex said additional phase(s) and real property and
Declarant makes no representation with respect to whether or not such
additional real property will ever be developed or annexed. While the
Declarant or its assigns holds title to any of the real property
dcscribed in Exhibit "A" or Exhibit "B" this Section
shall not be amended without the written approval of Declarant or its
assigns.
b. No Unreasonable Burden. Any annexation pursuant to this Section
shall not result in an unreasonable diminution of the benefits to, or an
unreasonable increase in the burdens upon, existing Owners in the
Project and shall be consistent with the phasing plan presented to the
California Department of Real Estate at the time of application for the
original Final Public Report for the sale of Lots in the Project. This
Project is or will be subject to a Grade Crossing Agreement (hereinafter
referred to herein as the "Joint Powers Agreement") between
Declarant and the Sacramento Transportation Corridor Joint Powers
Authority. The Joint Powers Agreement, in part, charges Declarant or its
assigns with certain responsibilities, including but not limited to
construction, maintenance, repair, payment of certain fees and expenses,
etc. Responsibilities pursuant to the Joint Powers Agreement will be
transferred to the Association. By this provision, the responsibilities
contained in the Joint Powers Agreement are declared not be over-burden
the Association or the Owners within the Project.
c. Declaration of Annexation. A Declaration of Annexation shall be
recorded covering the applicable portion of the property to be annexed.
Said Declaration may contain such complementary additions and
modifications of the covenants and restrictions contained in this
Declaration as may be necessary to reflect the different character, if
any, of the added property, as are consistent with the scheme of this
Declaration. Said Declaration shall include designation of Lots and/or
Common Areas for the purpose of this Declaration.
7.3 Annexation Pursuant to Approval.
Upon approval in writing of the Association, pursuant to vote or
written consent of 66-2/3% of the total votes residing in members other
than the Declarant, the Association and the owner of any property who
desires to add it to the scheme of this Declaration and to subject it to
the jurisdiction of the Association, may file of record a Declaration of
Annexation. Said Declaration may contain such complementary additions and
modifications of the covenants and restrictions contained in this
Declaration as may be necessary to reflect the different character, if
any, of the added property, as are consistent with the scheme of this
Declaration. Said Declaration shall include designation of Lots and/or
Common Areas for the purpose of this Declaration.
7.4 Effect of Annexation
Assessments collected from owners in the property may be expended by
the Association without regard to the particular phase from which such
assessments came. All owners shall have ingress and egress to all portions
of the common area throughout the property, subject to the provisions of
this Declaration, the Bylaws of the Association and the Rules and
Regulations of the Association in effect from time to time.
RETURN TO INDEX
8.1. Term.
The declarations, covenants, conditions, restrictions, limitations and
easements of this Declaration shall run with and bind the Property, and
shall inure to the benefit of and be binding on the Owners of any Lots,
their legal representatives, heirs, grantees, tenants, successors and
assigns, subject to this Declaration, for a term of 30 years from the date
this Declaration is recorded. Thereafter, subject to the Subsection below
entitled "Amendment; Revocation", they shall be automatically
extended for successive periods of 10 years.
8.2. Notices.
Notices provided for in this Declaration and the Guidelines shall be in
writing and shall be deemed sufficiently given when delivered personally
or within seventy-two (72) hours after deposit in the United States mail,
postage prepaid, addressed to an Owner at the last address such Owner
designates to the Committee for delivery of notices, or in the event of no
such designation, at such Owner's last known address, or if there be none,
at the address of the Owner's Lot. Notices to the Committee shall be
addressed to the address designated by the Committee by written notice to
all Owners.
8.3. Successor.
The rights of Declarant in this Declaration may be assigned by
Declarant to any successor to all or any part of any Declarant's interest
in the Project, as developer, by an express assignment incorporated in a
recorded deed that transfers any such interest to a successor or to a
Mortgagee acquiring Declarant's interest in the Project, by foreclosure or
by deed in lieu of foreclosure.
8.4 Amendment; Revocation.
The Sub-sections above entitled "Wetland Areas
Non-Development" (in Section 4), Permanent Non-Development Area (in
Section 4), "Wetland Areas" (in Section 6) and this Sub-section
entitled "Amendment; Revocation" may not be amended or revoked
without the prior written approval of the United States Army Corps of
Engineers; provided, however, that if the proposed amendment does not
affect the disposition of the Wetland Areas or the 50' Non-Building
Setback Area (both as shown on the Map) or the above referenced Sub-sections
in Section 4 and Section 6, then an amendment to this Sub-section entitled
"Amendment; Revocation" shall under no circumstances require the
prior written approval of the Corps of Engineers. Until conveyance of the
first Lot, Declarant shall have the unilateral right to amend this
Declaration subject to the provisions in the preceding paragraph . After
the first conveyance of a Lot, this Declaration shall be (a) amended only
upon the written approval of the then record Owners of at least sixty-six
and two-thirds percent (66-2/3%) of the Lots and subject to the preceding
paragraph, or (b) revoked only upon the written approval of the then
record Owners of at least seventy-five percent (75%) of the Lots and
subject to the preceding paragraph. If co-Owners of a Lot are unable to
agree among themselves as to how their vote shall be cast in the matters
addressed in this Subsection, they shall forfeit the vote on the matter in
question. If only one Owner exercises the vote of a particular Lot, it
shall be conclusively presumed for all purposes that he was acting with
the authority and consent of all other Owners of the same Lot. An
amendment or revocation shall be effective when it has received the
required percentage approval, and approval of the Corps of Engineers if
applicable, and has been recorded in the Office of the County
Recorder.
8.5. Severability.
Should any provision or portion of this Declaration be declared invalid
or in conflict with any law of the jurisdiction where this Project is
located, the validity of all other provisions and portions of this
Declaration shall remain unaffected and in full force and effect.
8.6. Headings.
The headings used in this Declaration are for convenience only and are
not to be used to interpret the meaning of any of the provisions of this
Declaration.
8.7. Enforcement.
The Association or any Owner shall have the right to enforce compliance
with the articles of incorporation, bylaws and this Declaration
(hereinafter collectively referred to as the "Project
Documents") in any manner provided by law or in bringing an action
for damages, an action to enjoin the violation or to specifically enforce
the provisions of the Project Documents. The various restrictive measures
and provisions of this Declaration are declared to constitute mutual
equitable covenants and servitudes for the protection and benefit of each
Lot in the Project and failure by Declarant or any other person or persons
entitled so to do to enforce any measure or provision upon violation
thereof shall not stop or prevent enforcement thereafter or be deemed a
waiver of the right to do so.
IN WITNESS WHEREOF, Declarant has executed this Declaration. DATED:
12/24, 1997. LATROBE PROPERTIES, II a General Partnership By: Warren B.
More, General Partner (Attach Appropriate Acknowledgment) CALIFORNIA ALL-PURPOSE
ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF PLACER On 12/24/97 before
me, Pamela L. Pucci personally appeared Warren B. More 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 Pamela L. Pucci This area
for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below,
doing so may prove invaluable to persons relying on the document.
RETURN TO INDEX
DESCRIPTION OF PROPERTY SUBJECT TO DECLARATION
All that certain real property situate in the unincorporated area of El
Dorado County, California described as follows:
Parcel 1:
That certain Map entitled "Shadow Hawk Unit No. 1, which Map
recorded October 27, 1997 in the Office of the El Dorado County Recorder
in Book H of Maps, at Page 139.
Parcel 2: Permanent Non-Development Area (Archeologically sensitive
Area)
See paragraph 4.21 (does not include the additional buffer of fifty
feet non-building setback area) A portion of the East ½ of Section 35,
Township 9 North, Range 9 East, M.D.M. more particularly described as
follows:
BEGINNING at the most easterly corner of the real property herein
described, from which the Southeast comer of said Section 35 bears South
10º 40' 40" East 2564.72 feet; thence, from said Point of Beginning,
along the following fifteen (15) courses:
(1) South 17º40'35" West 10.33 feet,
(2) South 85º20'43" West 110.45 feet,
(3) South 64º17'12" West 40.62 feet,
(4) South 56º49'56" West 58.22 feet,
(5) South 75º03'29" West 47.98 feet,
(6) North 60º45'51" West 89.88 feet,
(7) North 28º32'33" West 47.20 feet,
(8) North 04º36'47" East 37.01 feet,
(9) North 28º33'18" East 42.81 feet,
(10) North 55º18'15" East 69.22 feet,
(11) North 82º011'04" East 56.73 feet,
(12) South 89º19'16" East 52.30 feet,
(13) South 70º18'26" East 29.09 feet,
(14) South 60º19'27" East 96.16 feet, and
(15) South 34º01'02" East 82.39 feet, to the said Point of
Beginning.
Parcel 3:
Temporary Non-Development Area (see paragraph 4.22) Lot 14 of the Map
described in "Parcel 1" of this Exhibit "A" and the
following parcel (does not include the additional buffer of fifty feet non-building
setback area): A portion of the Northeast quarter of the Southeast quarter
of Section 35, Township 9 North, Range 9 East, M.D.M. more particularly
described as follows:
BEGINNING at the southwest corner of the real property described
herein, at point on the fence line lying along the east side of the old
Southern Pacific Railroad right-of-way, said fence being approximately 50
feet from the center of the railroad tracks, from which the Southeast
corner of said Section 35 bears South 32º50'13" East 1683.77 feet;
thence, from said Point of Beginning, along said fence line North
25º56'28" West 120.00 feet; thence, leaving said fence along the
following seven (7) courses:
(1) North 58º27'14" East 135.53 feet,
(2) North 82º31'42" East 307.61 feet,
(3) South 39º48'20" East 78. 10 feet,
(4) South 29º03'17" West 102.96 feet,
(5) South 81º52'12" West 70.71 feet,
(6) North 79º22'49" West 162.79 feet, and
(7) South 57º14'11" West 164.12 feet, to the said Point of
Beginning.
RETURN TO INDEX
DESCRIPTION OF PROPERTY SUBJECT TO ANNEXATION
All that certain real property situate in the unincorporated area of El
Dorado County, California described as follows:
Parcel 1:
All that portion of the East half of Section 35, Township 9 North,
Range 9 East, M.D.M., lying easterly of the old Southern Pacific Railroad
right-of-way.
Parcel 2:
Any easement for ingress to or egress from any portion or phase of the
Project.
RETURN TO INDEX
APPENDIX
Mitigation Guidelines for the Valley Elderberry Longhorn Beetle 19
September 1996 These mitigation guidelines (Guidelines) are also available
from the U.S. Fish and Wildlife Service (service) as a separate document.
The Service will revise these Guidelines as needed. The most recently
issued Guidelines should be used in developing all projects and
mitigation. U.S. Fish and Wildlife Service Ecological Services 3310 El
Camino Avenue, Suite 130 Sacramento, California 95821-6340 Background
information on the valley elderberry longhorn beetle, Desmocerus
califonicus dimophus, can be found in the Status of the Species and
Environmental Baseline section of the programmatic formal consultation
(Service Files No. 1-1-96-F-66) to which this appendix is attached.
Surveys Proposed project sits within the range of the valley elderberry
longhorn beetle (beetle) should be surveyed for the presences of the
beetle and its elderberry (Sambucus species) host plant by a qualified
biologist. The beetles' range extends throughout California's Central
Valley and associated foothills from about the 3,000 foot elevation
contour on the east and the watershed of the Central Valley on the west.
If elderberry plants with one or more stems measuring 1.0 inch or greater
in diameter at ground level occur on, or adjacent to, the proposed project
site, or are otherwise located where they may be directly or indirectly
effected by the proposed action, mitigation is required (see below).
Elderberry plants with no stems measuring 1.0 inch or greater in diameter
at ground level are unlikely to be habitat for the beetle because of their
small size and /or immaturity. Therefore, no mitigation is required for
plants with no stems measure 1.0 inch or greater in diameter at ground
level. Surveys are valid for a period of two years. Avoid and Protect
Habitat Whenever Possible Project sites that do not contain beetle habitat
are preferred. If suitable habitat for the beetle occurs on the project
site, these areas should be designated as avoidance areas that will be
protected from disturbance during the construction and operation of the
project. When possible, avoidance areas should be delineated to connect
with adjacent habitat, to prevent fragmentation and isolation of beetle
populations. Any beetle habitat that cannot be avoided as described below
should be considered impacted and appropriate mitigation should be
proposed as described below. Two Levels of Avoidance: Core and Buffer Core
avoidance area includes all area within 20 feet of the drip line of any
elderberry plant with a stem measuring 1.0 inch or greater in diameter at
ground level. Core avoidance areas should not be distributed during or
after construction or during operation of the project. Buffer avoidance
area includes all area within 100 feet of any elderberry plant with a stem
measuring 1.0 inch or greater in diameter at ground level. Firebreaks may
not be included in the buffer zone. In buffer areas construction-related
disturbance should be minimized, and any damaged area should be promptly
restored following construction. The Service should be provided with a map
and written details identifying the avoidance area.
Protective Measures
1. Fence and flag all areas to be avoided. Provide a minimum setback of
at least 20 feet from the drip line of each elderberry plant.
2. Brief contractors on the need to avoid damaging the elderberry
plants and the possible penalties for not complying with these
requirements.
3. Put up signs every 50 feet along the edge of the avoidance areas
with the following information: "This area is habitat of the valley
elderberry longhorn beetle, a threatened species, and must not be
disturbed. This species is protected by the Endangered Species Act of
1973, as amended. Violators are subject to prosecution, fins, and
imprisonment." The signs should be clearly readable from a distance
of 20 feet, and must be maintained for the duration of construction.
4. Instruct workers about the status of the beetle and the need to
protect its elderberry host plant.
Restoration and Maintenance
1. Restore any damage done to the buffer area during construction.
Provide erosion control and re-vegetate with appropriate native
plants.
2. Both core and buffer avoidance areas should continue to be protected
after construction from adverse effects of the project. Measures such as
fencing, signs, weeding, and trash removal are usually appropriate.
3. No insecticides, herbicides, fertilizers, or other chemicals that
might harm the beetle or its host plant should be used in the core and
buffer avoidance areas, or within 100 feet of any elderberry plant with a
stem measuring 1.0 inch or greater in diameter at ground level.
4. The applicant should provide a written description of how the core
and buffer avoidance areas are to be restored, protected, and maintained
after construction is completed.
RETURN TO INDEX