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HomeMy WebLinkAboutCT 84-27; BANKO CONDOMINIUMS; Tentative Map (CT): LAND Us iiiGAPL!CATIDN• DISCRETIONARY ACTIONS REQUEST O Zone Change OSpecif Ic Plan tJ General Plan Amendment DSite Development Plan 'Tentative Tract Map DConditional Use Permit o Major Planned Unit Development Ovariance O Master Plan C:JPlanning Commission Determination O Major Redevelopment Permit DSpecial Use Permit D Minor Redevelopment Permit []Structure Relocation o Precise Development Plan TMajor Condominium Permit (check other boxes if appropriate) ailete Description of Project (attach additional sheets it necessary) A 12 VOfJIT Cci4[7OVtIkIIUM PROJECT COWStSr/146 0 TOPS MULTI - u t4 ii PWELLt lJ& PLUS SITE AMLTtE I_______________ L• -*, 1-bT Z oF LA Colts VNIJ-LEVY UI1 5T MAP &7O Assessors Parcel Number 2iS-24O11 Zone General Plan Existing Land Use t*4 r Proposed Zone Proposed General Plan e Acreage O, t;ci 4CgtS Name (Print or Type) Name (Print or Type) pJAgv . BAthZ) DWAZO J AI\Q Mailing Address Mailing Address 4o 4- Li) NU\ 1-AFA D i vt ____ Ao 4- /-6 MA LJW& 1 ''E City and State Zip Teehojie City and State Zip Telephone '12b7 SOLM\1i ?4t'Q4,.CPt I CERTIFY THAT I AM THE LEGAL CQNER AND I CERTIFY THAT I AM THE OWNER'S REPRESENTATIVE THAT ALL THE ABOVE INFORMATION IS TRUE AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT 'TO THE BEST OF MY KNOWLEDGE. ,AND CORRECT ¶10 THE BEST OF MY KNOWLEDGE. SIGNATURE DATE SIGNATURE V DATE &/Z/ / g4l Ej Dat&Aui.catiO1RéC'd ceived By V V ce t V NO. V jV V I. SPECIFIC REQUIREMENTS General Plan Amendment/Zone Change 1. Application Form 2. General Requirement Items F-O 3. Reproducible 1:500 scale map of subject property showing requested zoning and surrounding zoning and land uses. 4. Fee: General Plan Amendment $765.00 + $5.00 per lot or acre, whichever is higher. Zone Change: $655.00 Master Plan/Specific Plan 1. Application Form 2. General Requirement Items: - fifteen (15) copies of items B-D - items E-O 3. Fee: Master Plan $1,635 + $5.00 per/acre Specific Plan $1,090.00 Master Plan Amendment: Major $545.00 + 5.00 acre Minor $185.00 + 2.00 acre Specific Plan Amendment: Major $440.00 Minor $ 75.00 Tentative Tract Map 1. Application Form 2. General Requirement Items - fifteen (15) copies of item A - items E-P 3. Fee: $530.00 (1-25 lots or units) $765.00 (26-100 lots or units) $1,310 (100 + lots or units) Revision: $330.00 (1-25 units or lots) $545.00 (26-100 units or lots) $765.00 (100+ units or lots) $150.00 Revision that does not change design of subdivision Major Planned Development (5 or more units) 1. Application Form 2. General Requirement Items: - fifteen (15) copies of items B-D - items E-O 3. Conversion to Condominiums - list of names and addresses of all tenants of the project, proof of notification of the tenants 60 days prior to filing tentative map. 2 • . . I . flhII Preliminary Report Fidelity National Title Insurance Company A Stock Company PRELIMINARY REPORT In response to the application for a policy of title insurance referenced herein, FIDELITY NATIONAL TITLE INSURANCE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception herein or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed exceptions and exclusions from the coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from the office that issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a Policy or Policies of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. FIDELITY NATIONAL TITLE INSURANCE COMPANY -' (SEAL1 President Attest Secretary Countersigned: Authorized4 4ture Form 1-91 Preliminary Report Cover ri ... FIDELITY NATIONAL TITLE INSURANCE COMPANY 2815 Camino Del Rio South, #250 Phone(619) 295-7332 San Diego, California 92108 North County 748-4110 P. 0. Box 85589, S.D., CA 92138 727-1852 & 753-6321 PRELIMINARY TITLE REPORT To: SHEARSON/ANERICAN EXPRESS ESCROW Your No. 2081 505 Lomas Santa Fe Drive Our Number 842107-A Solana Beach, California Date: March 6, 1984 Attention: Billie Dated as of March 1, 1984 at 7:30 A. M. - MATT HLBERT Title Officer lkw-80 The form of Policy or Policies of title insurance contemplated by this report is: CLTA Owners/JP/Loan Policy ALTA Loan Policy The estate or interest in the land hereinafter described or referred to covered by this Report is: A FEE Title to said estate or interest at the date hereof is vested in: F & F PROPERTIES, a limited partnership - NOTE: It is our understanding that title to said estate or interest in said policy is to be vested in: EDWARD J. BANKO - The land referred to in this report is described as follows: Lot 239 of LA COSTA VALLEY UNIT NO. 5, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 5730, filed in the Office of the County Recorder of San Diego County, September 8, 1970. At the date hereof exceptions to coverage in addition to the printed exceptions and exclusions contained, in said policy form would be as shown in Page 2, et. seq. attached hereto. I . PRELIMINARY TITLE REPORT CONTINUED: PAGE NO; 2. ORDER NO. 842107-A 1. General and special taxes, a lien not yet payable, for the fiscal year 1984-85. 'p( ' General and special taxes, the first installment now delinquent, the cond installment now due, for the fiscal year 1983-84. 3. Delinquent general and special taxes for the fiscal year 1981-82, and Q e9Y7) sequent delinquencies. An estimate has been ordered to determine the amount necessary to redeem. ((4. The lien of supplemental taxes, if any, assessed pursuant to the (7 provisions of Chapter 498, Stats. 1983 of the State of California. 5. Covenants, conditions and restrictions, but deleting restrictions, if any, based upon, race, color, religion or national origin as contained in instrument recorded September-8, 1970 as File No. 162849 of Official Records. Said instrument provides that a violation thereof shall not defeat nor render invalid the lien of any mortgage or deed of trust made in good faith and for value. An instrument declaring a modification thereof, recorded September 11, 1970 as File No. 164949 of Official Records. An instrument declaring a modification thereof, recorded October 27, 1970 as File No. 196322 of Official Records. 6. An abstract of judgment issued out of Superior Court, San Diego Judicial ( ~D trict, San Diego County, in Case No. 420647, against THOMAS FERRAN, in favor of FRANK C. NEWELL, JR., in the amount of $29,361.60, and any other amounts due, recorded September 2, 1982 as File No. 82-273449 of Official Records. Said judgment affects the prior interest of Thomas Ferran, general partner. NOTE: Opinion to come. 1983-84 TAX INFORMATION: Code Area: 9058 Parcel No. 215-240-11 1st Installment: $342.65 DELINQUENT, Penalty $34.26 2nd Installment: $342.65 OPEN Based on Land: $58,049.00 16 . S EXHIBIT A CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY-1973 SCHEDULE B This policy does not insure against loss or damage, nor against costs, attorneys' fees or expenses, any or all of which arise by reason of the following: Part I 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts in boundry lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or except- ions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water. 6. Any right, title, interest, estate or easement inland beyond the lines of the area specifically described or referred to in Schedule A, or in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing in this paragraph shall modify or limit the extent to which the ordinary right of an abutting owner for access to a physically open street or highway is insured by this policy. 7. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 8. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records. 9. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not shown by the public records and not otherwise excluded from coverage but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured bythis policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had been a purchaser or encumbrancer for value without knowledge. - AMERICAN LAND TITLE ASSOCIATION LOAN POLICY-1 970 WITH A.L.T.A. ENDORSEMENT FORM I COVERAGE (AMENDED 10-17-70) SCHEDULE OF EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy: 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records at Date of Policy. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent insurance is afforded herein as to any statutory lien for labor or material or to the extent insurance is afforded herein as to assessments for street improvements under construction or completed at Date of Policy). 4. Unenforceability of the lien of the insured mortgage because of failure of the insured at Date ofPolicy or of any subsequent owner of the indebtedness to comply with applicable "doing business" laws of the state in which the land is situated. 11 QUALITY ORIGINAL (S) CITY OF CAFLBAD 120M AVENUE • CARLSBAD,CAL0M2008 438-5551 RECEIVED FROM ,/fX DATE A nr4PR A/C. NO. DESCRIPTION AMOUNT IOU _c) - 41140 TOTAL g- - CITY CARLSBAD 1200 ELM AVENUE • CARLSBAD, CALIFORNIA 92008 438-5551 RECEIVED FROM5\<( DATE___________ ADDRESS - A/c. NO. DESCRIPTION AMOUNT fl\C \ •C) k-EE6 I A 1 - ( c_•- ___ - 'C-' '-- IF 40394 TOTAL 3 I . EXHIBIT "A" LEGAL DESCRIPTION Lot 239 of LA COSTA VALLEY UNIT NO. 5, according to Map thereof No. 6730, filed in the Office of the County Recorder of San Diego County, California, September 8, 1970. MA . I Planning ,Commission Determination 1. Application Form 2. One page statement precisely indicating the determination request. 3. General Requirement Items: - fifteen (15) copies of items B-D (if applicable) - items F-I, M, 0 4. General Requirement Items for Density Determination: - fifteen (15) copies items B-D - items E-I, M-O 5. Fee: $330.00 Malor and Minor Redevelopment Permits 1. Application Form 2. General Requirement Items: - Major: - fifteen (15), copies of Item B-D - items E-M and material samples (if applicable) - Minor: - fifteen (15) copies of items B-D (if applicable) - items E-F ? H-M and material samples (if applicable) 3. Fee. (Not established except where other permit is necessary). Structure Relocation 1. Application Form 2. General Requirement Items - fifteen (15) copies of - items E, F, H, I, M - inspection notice from 3. Fee: $120.00 B and D the Building Department NOTE: INCOMPLETE SUBMITTALS WILL PREVENT OR SIGNIFICANTLY DELAY THE PROCESSING OF A PROJECT II. GENERAL REQUIREMENTS A. Tentative map/preliminary grading plan (24" x 36") Each tentative map/preliminary grading plan shall contain the following information: (1) Name and address of the owner whose property is proposed to' be subdivided and the name and address of the subdivider; (2) Name and address of registered civil engineer, licensed surveyor, landscape architect or land planner who prepared the maps; (3) North point; (4) Scale; vicinity map; 9 I . Residential Condominiums $530.00 (50 units or less) $1,090.00 (50 units or more) $365.00 (Amendment for 50 units or less) $655.00 (Amendment for 50 units or more) $ 5.00 Unit (Notification of Tenants for Conversion) Residential Planned Unit Development $530.00 (50 units or less) $875.00 (51 units or more) $275.00 (Amendment for 50 units or less) $545.00 (Amendment for 50 units or more) Condominium Non Residential Condominium or Planned Unit Development $420.00 (50 or less units) $1,090.00 (50 or more units) $220.00 (Amendment for 50 or less units) $400.00 ( Amendment for 50 or more units) Site Development Plan 1. Application Form 2. General Requirement Items - fifteen (15) copies of items B-D - items E-I, M-O 3. Fee: $365.00 Conditional Use Permit/Special Use Permit/Precise Development Plan 1. Application Form 2. General Requirement Items: - fifteen (15) copies of items B-D - items E-O (items L,M & N not required for Special Use Permit) 3. Fee: $420.00 Conditional Use Permit/Special Use Permit $440.00 Precise Development Plan 4. Additional information may be required by the Engineering Department for Special Use Permits Variance 1. Application Form 2. General Requirement Items: - fifteen (15) copies of item B and D (if applicable) - items E, F, H-K, M, 0 3. Variance Supplemental Sheet 4. Fee: Single Family = $150.00 Other = $420.00 0 (5) Date of preparation; (6) The location, width and proposed names of all streets within the boundaries of the proposed subdivision and approximate grades thereof; (7) Location and width of alleys; (8) Name, location and width of adjacent streets; (9) Lot lines and approximate dimensions and numbers of each lot; (10) Approximate location and width of watercourses or areas subject to inundation from floods, and location of structures, irrigation ditches and other permanent physical features; (11) Approximate contours at 1' intervals for slopes less than 5%, 2' intervals for slopes between 5% and 10%, and 5' intervals for slopes over 10%. (both existing and proposed) (12) Approximate location of existing buildings and permanent structures and proposed condominium buildings; (13) Location of all major vegetation, showing size and type; (14) Legal description of the exterior boundaries of the subdivision (approximate bearings, distances and curve data); (15) Width and location of all existing or proposed public or private easements; (16) Classification of lots as to intended residential, commercial, industrial or other uses; (17) Location of railroads; (18) Approximate radii of curves of streets; (19) Proposed name and city tract number of the subdivision; (20) Any proposed phasing by units; (21) Number of units to be constructed when a condominium or community apartment project is involved. (22) Method of draining each lot; / (23) Earthwork Volumes (24) Also, proposed utilities, existing Street, sewer, water, and storm drainage improvements along the subdivision frontage, including street lights and fire hydrants on both sides of the street within 300 feet of the subdivision. (25) Typical street section for all adjacent streets and streets within the project. B. Site Plan: Shall include the following information: - Name and address of applicant, engineer and/or - architect, etc. - All easements - Dimensioned locations of: access, both pedestrian and vehicular, showing service areas and points of ingress and egress off-street parking and loading areas showing location, number and typical dimensionn of spaces, and wheel stops. . . - distances between buildings and/or structures - building setbacks (front, rear and sides) - location, height, and materials of walls and fences - location of freestanding signs - all driveways to scale on adjacent and across the street properties for a distance of 100 feet beyond the limits of subject site. - existing curbs, gutters, sidewalks and existing paving widths within 100 feet on adjacent and across the Street properties. - typical street section - any existing median islands within 100 feet of subject site. - nearest cross streets on both sides with plus or minus,distances from subject site. - location of all buildings within 100 feet of subject properties. - a vicinity map showing major cross streets - a summary table indicating the following information: - site acreage - existing zone and land use - proposed land use - total building coverage - building sq. footage - percent landscaping - number of parking spaces - sq. footage of open/recreational space (if applicable) - cubic footage of storage space (if applicable) ADDITIONAL DATA REQUIRED: UNLESS A TENTATIVE MAP IS SUBMITTED ALL DATA REQUIRED FOR A TENTATIVE MAP SHALL BE SUBMITTED ON THE SITE PLAN. C. Preliminary Landscape Plan (24" x 36") shall include the following information: 1. Landscape zones per the City of Carlsbad Landscape Guidelines Manual 2. Typical plant species and their sizes for each planting zone 3. An estimate of the yearly amount of irrigation (supplemental) water required to maintain each zone. 4. Landscape maintenance responsibility (private or common) for- all areas. 5. Percent of site used for landscaping D. Building Elevations and Floor Plans* (24"x36") - floor plans with square footages included - location and size of storage areas - all buildings, structures, walls and/or fences, signs and exterior lights. NOTE: ALL EXHIBITS MUST BE FOLDED IN A SIZE NOT TO EXCEED 8 1/2" x 11". E. One (1) copy each of 8 1/2"xll" site plan and elevations. F. One (1) copy of 8 1/2 11 x11" location map (suggested scale 200" - vicinity maps on the site plan are not acceptable) G. Environmental Impact Assessment Form ($175) H. Public Facility Agreement: 2 copies: One (1) notorized original, One (1) reproduced copy. I. Disclosure Statement J. Property Owners' List and Addressed Stamped Envelopes (Not needed for Site Development Plan, Special Use Permit, Planning Commission Determination and Minor Condominium Permit) 1) a typewritten list of the names and addresses of all property owners and occupants within a 300 foot radius of subject property (including the applicant and/or owner). The list shall include the San Diego County Assessor's parcel number from the latest assessment rolls. 2) Two separate sets of legal size (#10), addressed stamped envelopes (four sets for condominium conversions) of the property owners and occupants within a 300-foot radius of subject property. For any address other than single family residence, apartment or suite number must be included. DO NOT TYPE ASSESSOR'S PARCEL NUMBER ON ENVELOPES AND LEAVE RETURN OF ADDRESS BLANK. 3) For Condominium Conversions, two separate sets of addressed, stamped envelopes of all existing tenants is required. K. 300 Foot Radius Map (Not needed for Site Development Plan, Planning Commission Determination and Special Use Permit). A map to scale not less than 1" = 200' showing each lot within 300 feet of the exterior boundaries of the subject property. Each of these lots shall be consecutively numbered and correspond with the property owner's list. The scale of the map may be reduced to a scale acceptable to the Land Use Planning Manager if the required scale is impractical. L. For residential projects within Vista, Encinitas or San Dieguito School Districts, the applicant shall indicate whether he prefers to dedicate land for school facilities, to pay a fee in lieu thereof, or do a combination of these. If the applicant prefers to dedicate land, he shall suggest the specific land. For residential projects within the Carlsbad Unified School District and the San Marco Unified School District, the applicant shall submit written confirmation that school facilities will be available and serve the project at time of need. M. Preliminary Title Report (current within the last six months) N. Proof of sewer availability if located in the Leucadia County Water District. 0. Colored Site Plan and Elevation Plan * P. Statement of agreement to waive tentative tract map time limits. *NOTE: It is the Applicant's responsibility to bring one copy of a colored site plan and one copy of a colored elevation to the Land Use Planning Office by Noon the day of .the Planning Commission meeting. APPLICANT DISCLOSURE FORM In order to assist the members of the Planning Commission and City Council to avoid possible conflicts of interest, all appli- cants are required to complete this disclosure form at the time of submitting their application. When this form has been com- pleted and signed, the information will be relied upon by them in determining if a conflict may exist, so please ensure that all of the information is completed and accurate. If at anytime before a final action on your application has been rendered, any of the information required by this disclosure changes, an amendment reflecting this change must be filed. If the applicant is an individual, or a partnership (either gen- eral or limited) or a joint venture, please state the full name, address and phone number of each person or individual (including trusts) who own any beneficial interest' in the property which is the subject of this application. Should one or more parties to the application be a partnership or joint venture, then please state the full legal name of the partnership or joint venture, its legal address and the name and address of each individual person who is a general and/or limited partner or member of the joint venture. Should one or more of the parties be a privately held corporation (10 shareholders or less) or a real estate syndication, then please state the state of incorporation or syndication, corporate number, date of incorporation or syndication, corporate or syn- dicate address, and the full names and addresses of each individual shareholder or syndicate member. Should the corpor- ation be a publically held corporation, then state the full name and address of the corporation, the place of its incorporation, number of shareholders, and the name and address of the officers of the corporation. Should you feel that additional information needs to be provided in order to provide a full disclosure, please include it. 7] I 1 \- ---- -- .. 0- l/Affe.g0k%/, RECFIVJ FEB29 1984 :: MSSUST*D v —' a* limits 41111modmim am" ve r F I F Properties e=6839 Waite Drive San Diego California II OAItI fr r 1 Sans U above sacm ansva mis uns ,eo nsc::nn use na - ON MI V1WM • SIONY SIilSIL asmowwmm an isa anulI* is — is IMI *I*7SAM72 i 1 -ii I J WWWOMM Am I Grant Deed -,Tf -0790 . * A VAWAILL CCI DWTIOII, .si1* .1 vM I bw&y e4a....L4. FREDERICK OHANNESIAN, a married man; FRANK SORCE and MAUL 5OkC, husband and wife; ADELAIDE CIRRICIONE, a widow biáy GRANT(S) is F 4 F PROPERTIES, a limited partnership she f.IIsMg k..dhmA ,s.I ,..,.,i I. she C.isy.t San Diego •uiiiIC.Wi.ulis Lot 239 of La Costa Valley Unit No. 5, in tte County of San Diego, State of California according to Nap thereof No. $73, hied in the office of the County Recorder of San Diego County, Septanber 8, 1970. fliied 1972 ::Ilncin Of flj( :ourrr or ThiP.._ - ________ _______ brf.te e. tlw aeM .i1n.t a Nwwy Public I. 4" f ..ld 84.. p.r.o.aIIy appcieed - )'rank sprasA Sorge. L.. : h. be the P"—* .L,,k.w - 1 ake,lIed a the within .fuUM apS acka.wrip.I that— _rl the WIThE 43 my bend and .&laI ..st. Charlotte Kelly - Name Tppd or Printed) z 00 cJT OD .fl,I. ..,. f. •a.1I ..e.n.I *if 1z 254,VkV 21V7&J er9q1 ,4 77k / of / ,':e J~CP& rnk-,AP DECLARATION OF RESTRICTIONS This DECLARATION OF RESTRICTIONS made as of this first day of August, 1985, by BANgO, PETERS AND ASSOCIATES, a California Limited Partnership, comprised of: EDWARD J. EANKO, JR., Trustee, Under Trust dated May 22, 1978, and RALPH L.PETERS, the Geheral Partners; and DONALD A. ASHFORTH and PATRICIA A. ASHFORTH, husband and wife, as joint tenants, NICHOLAS P. BARTOLINI, and MICHAEL D. MONTGOMERY, the Limited Partners. The persons listed hereinabove comprise a complete listing of the General Partners and the Limited Partners in: BANKO, PETERS, AND ASSOCIATES, a California Limited Partnership, and as such are hereinafter called "Declarant". WITNESSETH W H E R E A 5, Declarant is the owner of all the certain real property situated in the County of San Diego, State of California, more particularly described as: Lot 239 OF LA COSTA VALLEY UNIT NO. 5, according to Map thereof No. 6730, filed in the Office of the County Recorder of San Diego County, California, September 8, 1970 W H E R E A 5, Declarant will hereafter file in the Office of the County Recorder of San Diego County, California, a Condominium Plan covering said real property; and W H E R E A S, Declarant is about to sell and convey fee simple and fractional tenant-in- common interests in said real property and before selling or conveying an of such interests desires to subject said real property in accordance with a common plan to certain COVENANTS, CONDITIONS, and RESTRICTIONS for the benefit and protection of Declarant and any and all future owners of said real property. N 0 W, T H E R E F 0 R E, Declarant hereby certifies and declares and does hereby establish the following general plan for the protection and benefit of all of said real property and does hereby fix the following protective COVENANTS, CONDITIONS, and RESTRICTIONS upon each and every ownership interest in said real property under Page 1 which said COVENANTS, CONDITIONS, and RESTRICTIONS each ownership interest in said real property shall be hereafter held, used, occupied, leased, sold, encumbered, conveyed, and/or transferred. Each and all of said COVENANTS, CONDITIONS and RESTRICTIONS shall inure to the benefit of all said real property and all parties having or acquiring any right, title, or interest therein or any part thereof, and shall inure to the benefit of and be binding upon Declarant and each successor in title or interest of Declarant. (1)DEFINITIONS. The terms used herein shall have the following meanings: (a)"Declarant" shall mean and refer to BAN}CO, PETERS, AND ASSOCIATES, a California Limited Partnership, comprised of EDWARD J. BANKO, JR.,Trustee Under Trust dated May 22, 1978, and RALPH L. PETERS, the General Partners; and DONALD A. ASHFORTH AND PATRICIA A. ASHFORTH, husband and wife, as joint tenants, NICHOLAS P. EARTOLINI, and MICHAEL D. MONTGOMERY, the Limited Partners. (b)" Condominium Property" shall mean and refer to that certain real property located in the County of San Diego, State of California, more particularly described on the first page hereof. "Condominium Property" shall also mean "Project" as that term may be used herein. (c)"Owner" shall mean and refer to the record owner, whether one (1) or more persons or entities, of fee simple title to any Condominium, including contract sellers and contract vendee under a contract of sale, but excluding those having such interest merely as security for performance of an obligation. (d)" Condominium Plan" shall mean and refer to the condominium plan recorded pursuant to California Civil Code, Section 1351, covering the Condominium Property, including such amendments thereto as may from time to time be recorded. (e)" Condominium" shall mean and refer to a fee simple estate in the Condominium Property or portions thereof as defined in California Civil Code, Section 783, and shall consist of a separate interest in a Living Unit and an undivided fractional interest as tenant-in-common in the Common Area. Page 2 (f)"Living Units shall mean and refer to that portion of the Condominium Property shown and designated as such on the surfaces of the floors and of the ceilings, windows and doors thereoft and includes both the portions of the building so described and the airspace so encompassed; provided, however, that the following are not part of any Living Unit; bearing walls, columns, floors, roofs, foundations, central heating and other central services, pipes, ducts, flues, chutes, conduits, wires and other utility installations, wherever located, except outlets thereof when located within a Living Unit. The physical boundaries of a Living Unit as constructed or any Living Unit reconstructed in substantial accordance with the original plans thereofr shall be conclusively presumed to be the boundaries rather than any metes and bounds description expressed in any deed or plan, regardless of settling or lateral movement of the building and regardless of any minor variance between boundaries shown in any deed or plan and those of the building. (g)'Common Area shall mean and refer to all portions of the Condominium Property not located within a Living Unit. (h)"Exclusive Use Area" shall mean and refer to those portions of the Common Area designated as such on the Condominium Plan and shall consist of: Storage Areas, Garage Areas, Balconies, and Patio Areas. (i)11 Mortqaae shall mean and refer to a deed of trust as well as a mortgage. (j)'Mortaagee" shall mean and refer to a beneficiary under or holder of a deed of trust as well as a mortgagee. (R)" Association" shall mean and refer to the management body of the Condpminium Property and shall be known as: LA COSTA MAR VILLAS CONDOMINIUM ASSOCIATION (l)By-Laws" shall mean and refer to the Association's By-Laws. Page 3 OUSE OF LIVING UNITS AND COMMON AREA. (a) Each Living Unit shall be improved, used, and occupied for private, single family dwelling purposes only, and no business or commercial activity shall be conducted therein without the prior written consent of the Association; provided, however, Declarant may use any of the Living Units owned by Declarant as model homes and sales offices during that period of time commencing when the Living Units are first sold or offered for sale to the public and ending when all the Living Units in the project are sold and conveyed by Declarant to separate owners thereof or three (3) years after issuance by the Department of Real Estate of its final Subdivision Public Report on the Condominium Property, whichever occurs first. (b) No portion of the Condominium Property shall be occupied or used for any purpose or in any manner which shall: (i) cause either to be uninsurable against loss by fire or the perils insured against by an extended coverage endorsement to the California Standard Fire Policy form, or (ii) cause any policy or policies representing such insurance to be cancelled or suspended or the company issuing the same to refuse renewal thereof. (C) No animals shall be brought within the Condominium Property, except as may be permitted by rules established by the Association. The Association shall allow not more than one (1) dog or one (1) domesticated cat to be kept in each Living Unit if the same is a usual and ordinary household pet and if the same does not cause unreasonable annoyance to other occupants of Living Units. No pets shall be allowed in the Common Area, except as may be permitted by the Association. (d) No Living Unit shall be used in such manner as to obstruct or interfere with the enjoyment of occupants or other Living Units or annoy them by unreasonable noise or otherwise, nor shall any nuisance be committed or permitted to occur in any part Page 4 of the Condominium Property. (e) No signs other than one (I) sign not to exceed reasonable and customary dimensions, advertising a Condominium for sale or rent, shall be erected or displayed in any Living Unit. No signs shall be erected or displayed on the Common Area, except signs placed by authority of the Association. (f) There shall be no outside radio or television antennas constucted, installed or maintained on the Condominium Property for any purpose whatsoever, without the prior written consent of the Association. (g) No noxious activity shall be carried on anywhere, at any time, in any way in the Condominium Property (including any Living Unit), nor shall anything be done therein which is a definite and distinct annoyance or nuisance to the other Owners. Nothing shall be done therein or thereon which will impair the structural integrity of any building, or which would structurally change any building located on the Condominium Property. Nothing shall be altered or constructed in or removed from the Common Area, except upon the written consent of the Association. All equipment, garbage cans, wood piles, or storage piles shall be kept screened and concealed from view of neighboring Living Units, streets, and Common Areas. All rubbish, trash, or garbage shall be regularly removed from each Condominium Property. No fences, hedges, or walls shall be erected or maintained upon the Condominium Property, except such as are installed in accordance with the initial construction of the buildings located on the Condominium Property, or as provided by the Association. No exterior clothes lines shall be erected or maintained; no clothes, sheets, towels, etc., shall be placed for any reason on outside balcony railings; and there shall be no outside laundering of clothes anywhere on the Common Area. (h) No power equipment, hobby shops, or carpenter shops shall be maintained in said Condominium Property, except with the prior written approval of the Association. No automobile overhaul Page 5 or maintenance work, other than emergency work, shall be permitted on said Condominium Property. (i) No truck, camper, trailer, boat of any kind, or other single or multipurpose engine-powered vehicle shall be parked on the Condominium Property, except temporarily and solely for the purpose of loading and unloading. This restriction - - does not apply to Owners' passenger automobiles. Assigned ground floor garage spaces shall normally be used for normal compact or full-size passenger automobiles or compact pick-up trucks. Use of these spaces for other than the aforementioned vehicles, or for boats, etc., shall be permitted only with the written consent of the Association. (j)The Common Area shall be improved and used only for the following purposes: (1) Affording vehicular passage to the parking areas and pedestrian movement within said Condominium Property, including access to Living Units; (ii) Recreational use by the Owners and occupants of Living Units and their guests in the Condominium Property, subject to rules established by the Association; (iii) Beautification and provision of privacy for the residents of the Condominium Property through landscaping and such other means as the Association shall deem appropriate; (iv) Storage of personal property in areas provided therefor, if any, as may be designated and approved by the Association; (v) As Exclusive Use Areas to be used in the manner hereinafter described. Nothing herein stated shall be deemed to allow persons other than the Owner, or his licensee, of an Exclusive Use Area to enjoy use of the same. (k) No part of the Common area shall be obstructed so as to interfere with its use for the purposes hereinabove permitted, Page 6 nor shall any part of the Common Area be used for storage purposes (except as may be allowed hereinafter, or as incidental to one of such permitted uses, or for storage of maintenance equipment used exclusively to maintain the Common area). (1) Each Exclusive Use Area shall be appurtenant to a Condominium. The right - - to use an Exclusive Use Area shall be exercisable only by the Owner(s) of the Condominium appurtenant thereto and/or said Owner's licensee(s). Conveyance of a Condominium shall effect conveyance of Exclusive Use Areas appurtenant thereto and transfer of all rights thereto to the vested Owner of the Condominium. Any license(s) thereto shall be terminated upon such conveyance. No Exclusive Use Area or any rights thereto (other than said revokable licenses) shall be transferred or conveyed apart from conveyance of the Condominium to which it is appurtenant. Each Exclusive Use Area shall be deemed to be Common Area for all those purposes set forth in this Declaration which are not inconsistent with this paragraph or the paragraph herein entitled"RESPONSIBILITIES OF OWNERS". (in) Except as otherwise provided herein, no owner shall make any alteration or improvement to the Common Area (including Exclusive Use Areas), or remove any planting, structure, furnishing, or other improvement therefrom, except with the written consent of the Association. (n) Each Owner shall legally be liable to the Association as such liability may be determined pursuant to the laws of the State of California, for all damages to the Common area or to any improvements thereof or thereto (including but not limited to buildings, recreation facilities, and landscaping) caused by such Owner, any occupant of such Owner's Living Unit, or any guest of such Owner. (o) Each Owner shall have the right, at his sole cost and expense, to mintain, repair, paint, panel, plaster, tile and finish the interior surfaces of the ceilings, floors, Page 7 window frames, door frames, trim and perimeter walls of his Living Unit and the surfaces of the bearing walls and partitions located within said Living Unit. Each Owner shall have the right, at his expense, to substitute new finished surfaces in place of those existing on said ceiling, floors, and walls. (p) Each Owner shall have the right to place furniture and potted plants upon any area which he has the exclusive right to use, subject to approval by the Association. Nothing contained herein shall give any Owner the right to paint, decorate, remodel, or alter said Exclusive Use Area or any other part of the Common Area without the prior written consent of the Association. (q) No Owner may sell, assign, lease, or convey his interest in the Common Area separate and apart from his Living Unit nor any portion of his Living Unit apart from the entire Living Unit. (r) Each Owner shall have the right to lease his Condominium provided that such lease is in writing and provides that the tenant shall be bound by and obligated to the provisions of this Declaration, the By-Laws of the Association, and the rules and regulations thereof; and, provided further, that no such lease shall be for transient or hotel purposes. All such leases shall be subject to the prior review and written approval of the Association before such tenant shall be permitted to move into the Condominium. (3) OWNERS - GENERAL. The Association shall consist of all the Owners of Condominiums in the Condominium Property. The Association shall constitute a California Non-Profit Mutual Benefit Corporation and be the "management body as that term is used in California Civil Code, Section 1355(a), as the same may from time to time be amended. The Association shall possess and be vested with the rights, powers, and duties set forth in the By-Laws. (4)POWERS AS MANAGEMENT BODY. The Association has and shall have the powers set forth in the By-Laws, including but not limited to the power to sell, at such price and terms as the Page 8 Association may determine, the entire Condominium Property to the benefit of all the Owners and Mortgagees thereof as their interests shall appear. Said power to sell shall be exercisable only: (1) When partition of the Condominium Property may be had under California Civil Code, Section 1354, and (ii) After recordation of a certification by those holding such power that said power is properly exercisable. (5)OWNERS - ASSESSMENTS. (a) The Association has and shall have the right and power to fix and determine from time to time regular assessments to be paid by each Owner for the purpose of operating, maintaining, and repairing the Common Area, paying the necessary expenditures of the Association and establishing an operating reserve fund and reserve for replacement. The regular assessment amount (which may be payable in monthly installments) shall be determined at least annually and shall be advised to the Owners not less than sixty (60) days before the beginning of the fiscal year. The Association shall not, without the vote or written consent of a majority of the voting power of the Association other than the Declarant, impose a regular annual assessment which is twenty per cent (20%) or more greater than the regular assessment in force for the immediately preceding fiscal year. The Association's first fiscal year shall begin upon the commencement of the first regular assessment. Such regular assessments shall be assessed against each Owner's interest in the Condominium Property and shall be in proportion to each Owner's fractional undivided interest in the Common Area. (b) In addition to the regular assessments authorized above, the Association may levy special assessments against each Owner's interest in the Condominium Property for the purpose of defraying, in whole or in part, the cost of any capital improvement to the Common Area or such other purpose as may be determined by the Association; provided, however, no such special assessment may Page 9 be made which exceeds in the aggregate during any fiscal year five per cent (5%) of the annually budgetted gross expenses of the Association for that fiscal year, unless the vote or written consent of a majority of the voting power of the Association, other than the Declarant, is first obtained. Such special assessments shall be assessed each Owner and upon the basis of the ratio of the square footage of the floor area of the Living Unit of each Owner to the total square footage of the floor area of all the Living Units, unless the special assessment is imposed against an Owner as a remedy utilized by the Association to reimburse the Association for its costs incurred in causing the Owner and/ or his Condominium to comply with the requirements of this Declaration, the By- Laws, or the rules and regulations promulgated by the Association. The Association shall have the right to levy special assessments against Owners for said purposes, and any such special assessments used as a remedy by the Association shall not be limited in amount. The Association shall further cause to be distributed personally or by mail to each member of the Association within one hundred twenty (120) days following the end of each fiscal year an annual report which shall consist of the following: i) A balance sheet as of the end of the fiscal year; (ii) An operating (income) statement for the fiscal year; (iii) A statement of change in financial position for the fiscal year; and (iv) Any information required to be reported under Section 8322 of the California Corporations Code. (C) Declarant shall be liable to pay all assessments levied by the Association on unsold interests in the Condominium Property in the same amount and in the same manner as any other Owner. (d) The regular assessment shall commence against all the Condominiums on the first day of the next calendar month following the closing of the first sale of a Living Unit. Page 10 (6)LIEN OF ASSESSMENT. (a) In the event any regular or special assessment levied by the Association shall be unpaid and not otherwise satisfied within thirty (30) days after the same becomes due and payable, the same shall be and become delinquent and shall remain delinquent until the amount of such payment, together with all costs, - - including attorney's fees, penalties, and interest as herein provided, shall be fully paid or otherwise satisfied. However, no such penalties and interest may be imposed by the Association unless done so for the reasons and consistent with the procedures set forth in California Corporations Code, Section 7341, and in accordance with the procedure specified in Article 16 of this Declaration. (b) At any time after any assessment affecting any Condominium has become delinquent, the Association may file for recording in the Office of the Recorder, San Diego County, a notice of delinquency as to such Condominium, which notice shall state all amounts which have become delinquent with respect to such Condominium and the costs, including attorney's fees, penalties, and interest which have accrued thereon, the amount of any assessments relating to such Condominium which is due and payable although not delinquent, a description of the Condominium in respect to which the delinquent payment or assessment is owed and the name of the record or reputed record Owner of such Condominium. Such notice shall be signed by the President or Vice President and the Secretary of the Association. In the event the delinquent payment or assessment and all other assessments which have become due and payable with respect to the same Condominium, together with all costs, including attorney's fees, penalties, and interest which have accrued on such amounts, are fully paid or otherwise satisfied prior to the completion of any sale held to foreclose the lien provided for in Subsection (c) of this Section, the Association shall record a further notice, similarly signed, stating the satisfaction and releasing such lien. (c) Immediately upon recording of any notice of delinquency Page ii pursuant to the foregoing provisions of this Section, the amount delinquent, as well as any amounts then due and payable although not delinquent, as set forth in such notice, together with the costs, including attorney's fees, penalties, and interest accruing thereon, shall be and become a lien upon the Condominium described therein, which lien shall also secure all other payments and/or assessments which shall become due and payable with respect to said Condominium following such recording, and all costs, including attorney's fees, penalties, and interest accruing thereon. Said lien shall continue until all amounts secured thereby are fully paid or otherwise satisfied. Said lien shall be subordinate to the lien or charge of any bona fide first mortgage or first deed of trust made in good faith for value encumbering said Condominium, pursuant to the paragraph herein entitled "RIGHTS OF LENDERS". (d) Each lien established pursuant to the foregoing provisions of this Section may be foreclosed as and in the same manner as the foreclosure of a mortgage upon real property under the laws of the State of California, including enforcement by sale pursuant to Section 1356, subject to the limitation contained in Section 2924 of the California Civil Code, and to that end a power of sale is hereby conferred upon the Association. The Association shall have the power to make bids at the foreclosure sale to hold, lease, encumber, and convey a Condominium in its name as trustee for all the Owners. (e) Interest shall accrue at the rate of ten per cent (10%) per annum on all unpaid assessments due hereunder from the date of delinquency thereof. (f) The Association may bring an action at law against the Owner personally obligated to pay assessments in addition to costs in lieu of foreclosing said lien. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or the abandonment of his Living Unit. (g) No transfer of a Condominium as the result of a foreclosure or exercise of a power of sale shall relieve the new Owner, whether it be the former beneficiary of the first encumbrant Page 12 or another person from liability for any assessment thereafter becoming due or from the lien thereof. (h) Upon acquisition of record title to a Condominium from Declarant, and if the escrow instructions so provide, each Owner shall contribute to the capital of the Association an amount equal to one-sixth (1/6th) the amount of the then annual assessment for that Condominium as determined by the Board. This amount shall be deposited by the Buyer into the purchase and sales escrow and disbursed therefrom to the Association. Within sixty (60) days after the close of the first sales escrow of a Condominium by Declarant, as seller, Declarant shall deposit into an escrow an amount equal to one-sixth (1/6th) of the then annual assessment for any and all Condominiums not yet sold. Escrow shall remit these 'funds to the Association. Upon the close of any escrow of any Condominium for which the capital contribution was prepaid by Declarant, escrow shall remit to the Declarant the capital contribution collection from the Owner. (7) MEETING OF OWNERS. All meetings of Owners as members of the Association shall be held as set forth in the By-Laws. (8)PARTITION PROHIBITED. Each of the Owners in the Condominium Property, whether such ownership is in fee simple or as tenants-in-common, is hereby prohibited from partitioning or in any other way severing or separating such ownership from any of the other ownerships in said Condominium Property, except upon showing that: U) Three (3) years after damage or destruction to the project which renders a material part thereof unfit for its use prior thereto, the project has not been rebuilt or repaired substantially to its state prior to its damage or destruction, or (ii) That three-fourths (3/4ths) or more of the project has been destroyed or substantially damaged, and the Owners holding in aggregate more than a fifty per cent (50%) interest in the Common Area are opposed to repair or restoration of the project; provided, however, that if any Condominium shall be owned by two (2) or more co-tenants as 'tenants-in-common or joint 'tenants, nothing herein shall be deemed to prevent a judicial partition as between such co-tenants. (9) POWER OF ATTORNEY. The Association is hereby granted an irrevocable power of attorney to sell the Condominium Property Page 13 for the benefit of all the Owners thereof when partition of the Owner's interests in said Condominium Property may be had pursuant to Section 8 hereof. The power of attorney herein granted may be exercised upon the vote or written assent of Owners holding in the aggregate at least two-thirds (2/3) of the interest in the Common area by any two (2) members of the Association who are hereby authorized to record a certificate of exercise in the Office of the County Recorder, San Diego County, which certificate shall be conclusive evidence thereof in favor of any person relying thereon in good faith. (10)DAMAGE AND DESTRUCTION OF COMMON AREA. If any portion of the Common Area is damaged or destroyed by fire or other casualty, then: (a) If the cost of repairing or rebuilding does not exceed the amount of available insurance proceeds by more than $2,000, the President of the Association shall thereupon contract to repair or rebuild the damaged portions of the Common Area substantially in accordance with the original plans and specifications therefor; (b) If the cost of repairing or rebuilding exceeds the amount of available insurance proceeds by more than $2,000 and if the Owners holding in aggregate more than fifty per cent (50%) interest in the Common Area agree to the repair or restoration of the project, then the President shall contract as provided in Subsection (a), above. If the Owners do not so agree, then all insurance proceeds shall be paid to the Owners to be held for the benefit of the Owners and their Mortgagees as their respective interests shall appear and in accordance with Article 29(i) herein. (c) If a bid to repair or rebuild is accepted, the Association shall levy a special assessment upon each Owner and upon the basis of the ratio of the square footage of the floor area of the Living Unit of each Owner to the total square footage of the floor area of all the Living Units to make up any deficiency between the total insurance proceeds and the contract price for such repair and rebuilding, and such assessment and all insurance proceeds whether or not subject to liens or Mortgagees, shall be Page 14 used for such rebuilding. (II) CONDEMNATION. In the event the Common Area or any portion thereof shall be taken for public purposes by condemnation as a result of any action or proceeding in eminent domain, or shall be transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, then any award or consideration for such taking or transfer which is not apportioned among the Owners by court judgment or by agreeement between the condemning authority and each of the affected Owners of the Condominium Property, shall be distributed among the affected Owners and their respective Mortgagees according to the relative value of the Condominium Units affected by the condemnation as determined by an independent appraisal; provided, however, should the taking result in any physical damage to any of the Common Area improvements, then the award or consideration for such taking shall be the fair market value of any such Common Area improvements as determined by an independent appraisal. (12) DAMAGE AND DESTRUCTION OF LIVING UNITS. In the event of damage or destruction to any Living Unit and not the Common Area, the Owner thereof shall reconstruct the same as soon as reasonably practicable and substantially in accord with the original plans and specifications therefor; provided, however, that any such Owner may, with the written consent of the Association, reconstruct or repair his Living Unit pursuant to new or changed plans or specifications. In the event the Association fails to approve or disapprove such changed plans and specifications within sixty (60) days of receipt thereof, they shall be deemed to have been approved. (13) RIGHTS OF LENDERS. (a) Any Owner may voluntarily or involuntarily encumber his interest in the Condominium Property with or by a real property mortgage, deed of trust, or other instrument of hypothecation. Page 15 (b) The lien of the assessments, interest, penalties, costs, and attorney's fees provided for herein shall be subordinate to the lien of any first Mortgage upon any Condominium. Sale or transfer of any Condominium shall not affect the assessment lien. However, the sale or transfer of any Condominium pursuant to Judicial or non-judicial foreclosure of a first Mortgage shall extinguish the lien of such assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Condominium from lien rights for any assessments thereafter becoming due. Where the Mortgagee of a first Mortgage of record or other purchaser of a Condominium obtains title to the same as a result of foreclosure, such acquirer of title, his successors and assigns, shall not be liable for the share of the common expenses or assessments by the Association chargeable to such Condominium which became due prior to the acquisition of title to such Condominium by such acquirer. Such unpaid share of common expenses or assessments shall be deemed to be common expenses collectible from all of the Condominiums, including such acquirer, his successor and assigns. (C) Provided that the Mortgagee informs the Association in writing its appropriate address and requests in writing to be notified, neither the Association nor any Owner shall do any of the following unless at least sixty-seven per cent (67%) of the first Mortgagees of Mortgages encumbering Condominiums (based upon one (1) vote for each Mortgage) have given their prior written approval: U) Seek, by act or omission, to abandon the Condominium Project or to terminate the Condominium Plan or this Declaration, or changer waive, or abandon any scheme or regulation or enforcement thereof, pertaining to the architectural design or the exterior appearance or maintenance of Living Units or the Common Area; (ii) Change the pro rata interest of obligations of any Condominium for purposes of levying assessments or allocating distributions of hazard insurance proceeds or condemnation awards or for determining pro rata Page 16 share of the Common Area appurtenant to each Living Unit; (iii) Partition or subdivide any Condominium; (iv) Seek, by act or omission, to abandon, partition, subdivide, encumber, sell, or transfer the Common Area; provided, however, that the granting of easements for public utility or other public purposes consistent with the uses of the Common Area shall not be deemed a transfer within the meaning of this provision; or (v) Use hazard insurance proceeds for losses to any portion of the Condominium Property for other than the repair, replacement, or reconstruction of the Condominium Property, except as may be provided by statute or upon substantial loss to the Living Units or Common Area, respectively. (d) The term eligible Mortgagee shall be defined to mean those first Mortgagees who requested such information in writing with respect to the approval of the items above in paragraphs (&(1) and (c)(2). (e) In the event there shall be any express or implied conflict between any provision of this Section and any other provision of this Declaration, the provisions of this Section shall govern and prevail. (14) ACCOUNTING. The Association shall maintain books of Page 17 account of all its receipts and expenditures as set forth in the By—Laws. (15) EXCLUSIVE RESPONSIBILITY OF ASSOCIATION. Except as otherwise provided herein, the Association shall have the sole and exclusive right and duty to manage, operate, control, repair,- replace, or restore all of the Common Area or any portion thereof, together with the improvements, trees, shrubbery, plants and grass thereon, all as more fully set forth in this Declaration. (16) RULES AND REGULATIONS. (a) The Association shall have the right to adopt reasonable rules, not inconsistent with the provisions of this Declaration and the By—Laws, and to amend the same from time to time relating to the use of the Common Area and the facilities situated thereon by the Owners and by their tenants and guests, and the conduct of such persons with respect to automobile parking, outside storage of boats, trailers, bicycles, and other objects, disposal of waste materials, drying of laundry, control of pets, and other activities which, if not so regulated, might detract from the appearance of the Condominium Property or offend or cause inconvenience or danger to persons residing or visiting therein. Such rules may provide that the Owner of a Living Unit whose occupant leaves property on the Common Area in violation of the rules or who in any way damages any portion of the Common Area may be assessed to cover the expense incurred by the Association in removing such property and storing or disposing thereof or repairing any such damage. The rights and privileges, including the voting rights, of any Owner may be suspended by the Association for any period of time during which such Owner is determined to be in breach of this Declaration or the rules and regulations adopted by the Association hereunder, and the Association may impose monetary penalties on any such Owner; provided, however, that no such suspension or penalty shall be effective until the Page 18 Association gives to such Owner the opportunity for a hearing before the Association; provided further, that no such suspension shall exceed thirty (30) days for a breach of the rules and regulations adopted by the Association; and, provided further, that no such suspension shall cause a forfeiture or abridgment of the Owner's right to the full use and enjoyment of his Living Unit or Exclusive Use Area, except where any such loss or forfeiture is the result of (i) a Judicial decree of Judgment (resulting from arbitration or otherwise), or (ii) exercise of the Association's lien rights by power of sale or otherwise. (b) The Association may not impose monetary penalties, temporary suspension of an Owner's rights as a member of the Association, or other appropriate discipline for failure to comply with the provisions of this Declaration and the By-Laws unless such penalties, suspension, or other appropriate discipline is done in good faith and in a fair and reasonable manner as set forth in the California Corporations Code, Section 7341, and in accordance with the following procedure: (i) That the Owner is given thirty (30) days prior notice of any expulsion, suspension, termination, monetary penalty, or any other discipline and the reasons therefor; (ii) The Owner is provided an opportunity to be heard, orally or in writing, not less than five (5) days before the effective date of the expulsion, suspension, termination, or other discipline by a person or body authorized to decide that the proposed expulsion, suspension, termination, or other discipline not take place. (iii) That such notice must be given by first class or registered mail sent to Page 19 the last address of the Owners shown on the Association's records. (17) RIGHT OF ENTRY. The Association shall have the right to enter upon any Living Unit or Exclusive Use Area to the extent such entry is necessary to carry out the repainting or repair of the exterior surfaces of any building, or to perform any work required in the maintenance and upkeep of the Common Area. Such right of entry shall be exercised in such manner as to interfere with the possession and the enjoyment of the occupant of such Living Unit as little as is reasonably possible, and shall be preceded by reasonable notice wherever the circumstances permit. (18) LIMITED LIABILITY OF ASSOCIATION. In discharging their duties and responsibilities, the Association acts on behalf of and as representative of the Owners, and no member thereof shall be individually or personally liable or obligated for performance or failure of performance of such duties or responsibilities unless he fails to act in good faith. (19) RESPONSIBILITIES OF OWNERS. Each Owner shall be responsible for the maintenance and repair of the glass doors and windows enclosing his Living Unit and the interior of his Living Unit, and shall also be responsible for the maintenance and repair of the plumbing electrical, and heating systems servicing his Living Unit and located within the exterior bearing walls of said Living Unit, including television cable equipment and connections, and all appliances and equipment located in said Living Unit. Each Owner shall also be responsible for the maintenance of the Exclusive Use Areas appurtenant to his Living Unit, and to make repairs in such manner as shall be deemed necessary in the Judgment of the Associastion to preseve the attractive appearance thereof and protect the value thereof. The Association shall give written notice to such Owner, stating with particularity the work of maintenance or repair which the Page 20 Association finds to be required, and requesting that the same be carried out within a period of thirty (30) days from giving of such notice. In the event Owner fails to carry out such maintenance or repair within the period specified by the notice, the Association shall cause such work to be done and shall assess the cost thereof to such Owner, which cost, if not so paid within ten (10) days of demand therefor, shall become a legally enforceable monetary obligation of such Owner to the Association. (20) BREACH. (a) A breach of any of the covenants contained in this Declaration or the By- Laws or any rule or regulation promulgated by the Association thereunder, other than breach by failure to pay assessments, which is not cured within fifteen (15) days from the date notice of such breach is given by the Association or Declarant to the Owner on whose Living Unit such breach occurs, or whose act or omission constitutes such breach, shall give to the Association or its successors the rights hereinafter set forth. (b) Breach of any of said covenants and the continuation of any such breach may be enjoined, abated, or remedied by appropriate legal proceedings by an owner, by Declarant or the successors in interest of Declarant, or by the Association. It is hereby agreed that damages at law for such breach are inadequate. (c) The result of every act or omission whereby any of said covenants are violated, in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result and may be exercised by any Owner, by Declarant or its successor in interest or by the Association. (d) The remedies provided for in this Declaration Page 21 shall be deemed cumulative, and none of such remedies shall be deemed exclusive. (e) The failure of Declarant, the Association, or any Owner to enforce any of the covenants contained in this declaration or the By-Laws shall not constitute a waiver of the right to enforce the same thereafter, nor shall such failure result in or impose any liability on Declarant. (f) A breach of the covenants contained in this Declaration or By-Laws or any such rule or regulation shall not affect or impair the lien or charge of any bona fide mortgage or deed of trust made in good faith and for value on any Condominium; provided, however, that a subsequent Owner of such Condominium shall be bound by said covenants, whether such Owner's title was acquired by foreclosure or in a trustee's sale or otherwise. A lender who acquired title by foreclosure or deed in lieu of foreclosure shall not be obligated to cure any breach of the covenants which occurred prior to such acquisition of title if such breach was or is non-curable or was a type of breach which is not practical or feasible to cure. (21) INTERPRETATION. All questions of interpretation or construction of any provisions contained in this Declaration shall be resolved by the Association and its decision shall be final, binding, and conclusive on all parties affected. (22) AMENDMENTS. (a) The Declaration may be amended at any time and from time to time by an instrument in writing signed by: Ci) A majority of the total voting power of the Association which is at least a bare majority and not more than seventy-five per cent (75%); and (ii) At least a bare majority of the votes of members other than the Declarant. The percentage of the voting power necessary to amend a specific clause or provision shall not be less than the percentage of affirmative votes prescribed for action to be taken under that clause, any of which amendments shall become effective upon the recording thereof with the Office of the County Recorder, San Diego County, California; provided, however, that no material amendment (as defined below) may be Page 22 made to this Declaration without the prior written consent of sixty-seven per cent (67%) or more of the eligible Mortgagees of first Mortgages encumbering Condominiums within the Condominium Property (based upon one (I) vote for each such Mortgage). However, the percentage of voting power necessary to amend a specific clause or provision of this Declaration shall not be less than the percentage of affirmative votes prescribed for action to be taken under that clause or provision. The term "eligible Mortgagee" shall be defined to mean those first Mortgagees who requested such information in writing with respect to amending the Declaration. (b) The term "material amendment" to any provision of the Declaration shall be defined to mean amendments to provisions governing any of the following subjects: (I) The percentage interest of the Owners in the Common Area of the Condominium Property; (ii) The fundamental purpose for which the Project was created; (iii) The reserve for repair and replacement of Common Area improvements; (iv) Property maintenance obligations; (v) Casualty and liability insurance; (vi) Reconstruction in the event of damage or destruction; (vii) Rights to use the Common Area; (viii) Annexation; (ix) Any provision which, by its terms, is specifically for the benefit of the first Mortgagees, or specifically confers rights upon first Mortgagees. - (23) EXTENSION OF DECLARATION. Each and all of these COVENANTS, CONDITIONS, AND RESTRICTIONS shall terminate on December 31, 2050, unless the Owners of at least seventy- five per cent (75%) of the Common Area file for record on or before December 31, 2050, their executed and acknowledged document stating their decision to extend the Declaration for any period not to exceed twenty (20) years. (24) SEVERABILITY. In the event any COVENANT, CONDITION, OR RESTRICTION OR provision contained in this Declaration is held to Page 23 be invalid, void, or unenforceable by any court of competent Jurisdiction, the remaining portions of the Declaration shall nevertheless be and remain in full force and effect. (25) INCORPORATION. Every right, privilege, duty, and obligation in or upon the Association shall be exercised by and shall be a burden upon any corporation incorporated by or with the written consent of the Owners of a majority of the interest in the Common Area for the purpose of exercising And discharging said rights, privileges, duties, and obligations. (26) LITIGATION.. In the event any person or entity shall commence litigation to enforce any of the COVENANTS, CONDITIONS, and RESTRICTIONS herein contained, the prevailing party in such litigation shall be entitled to costs of suit and such attorney's fees as the court may adjudge reasonable and proper. The prevailing party shall be the party in whose favor a final judgment is entered. (27) ENCROACHMENT EASEMENTS. The Owner of each Condominium is hereby declared to have an easement over all adjoining Living Units and the Common Area for the purpose of accommodating any encroachments due to engineering errors, errors in original construction, settlement or shifting of any building, or any other cause. There shall be valid easements for the maintenance of said encroachments as long as they shall exist, and the rights and obligations of Owners shall not be altered in any way by said encroachments, settling or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner if said encroachment occurred due to the willful misconduct of any Owner. In the event any portion of a structure on the Condominium Property is partially or totally destroyed and then repaired or rebuilt, each Owner agrees that minor encroachments over adjoining Living Units or Common Area shall be valid easements for the maintenance of said encroachments so long Page 24 as they shall exist. (28) COMMON AREA EASEMENTS. The Owner of each Condominium is hereby declared to have a non-exclusive easement of use and enjoyment in, to and throughout the Common Area of the Condominium Property and for ingress and support over and through the Common Area. (29) INSURANCE. (a) Liability Insurance. The Association shall obtain and maintain comprehensive public liability insurance insuring the Association, any Manager, the Declarant, and the Owners and occupants of Condominiums, and their respective family members, guests, invitees, and the agents or employees of each, against any liability incident to the ownership or use of the Common Area, and including, if obtainable, a cross-liability or severability of interest endorsement insuring each insured against liability to each other insured. The limits of such insurance shall not be less than one million dollars ($1,000,000) covering all claims for death, personal injury, and property damage arising out of a single occurrence. Such insurance shall include coverage against water damage liability, liability for non-owned and hired automobiles, liability for property of others, and any other liability or risk customarily covered with respect to projects similar in construction, location, and use. (b) Fire and Extended Coverage Insurance. The Association shall also obtain and maintain a master or blanket policy of fire insurance for the full insurable value of all of the improvements within the development. The form, content, and term of the policy and its endorsements and the issuing company must be satisfactory to all institutional Mortgagees. If more than one (1) institutional Mortgagee has a loan of record against the development, or any part of it, the policy and endorsements shall meet the maximum standards of the various institutional Mortgagees represented in the development. The policy shall contain an agreed amount endorsement or its equivalent, an increased cost of construction. endorsement or a Page 25 contingent liability from operation of building laws endorsement, vandalism, malicious mischief coverage, a special form endorsement, and a determinable cash adjustment clause or a similar clause to permit cash settlement covering full value of the improvements in case of partial destruction and a decision not to rebuild. The policy shall be in the amount as shall be determined by the Board. The policy shall name as insured the Association, the Owners, and the Declarant, - - as long as Declarant is the Owner of any condominiums, and all institutional Mortgagees as their respective interests may appear, and may contain a loss payable endorsement in favor of the trustee described in this Declaration. (c) Individual Fire Insurance Limited. except as provided in this Subsection, no Owner can separately insure his Living Unit or any part of it against loss by fire or other casualty covered by any insurance carrier under Subsection (b). If any Owner violates this provision, any diminution in insurance proceeds otherwise payable pursuant to the provisions of Subsection (d) that result from the existence of such other insurance will be chargeable to the Owner who acquired other insurance, and the Owner will be liable to the Association to the extent of any such diminution. An Owner can insure his personal property against loss. In addition, any improvements made by an Owner to the real property within his Living Unit may be separately insured by the Owner, but the insurance is to be limited to the type and nature of coverage commonly known as tenant's improvements. All such insurance that is individually carried must contain a waiver of subrogation rights by the carrier as to other Owners, the Association, and the Declarant. (d) Trustee. All insurance proceeds payable under Subsections (b) and (c) and subject to the rights of the Mortgagees under Subsection (h), may by paid to a trustee, to be held and expended for the benefit of the Owners, Mortgagees and others, as - Page 26 their respective interests shall appear. If repair or reconstruction is authorized, the Association shall have the duty to contract for such work as provided for in this Declaration. (e) Other Insurance. The Association may, and, if required by any Mortgagee, shall purchase and maintain demolition insurance in adequate amounts to cover demolition in case of total or partial destruction and a decision not to rebuild, and a blanket policy of flood insurance. The Association also shall purchase and maintain workmen's compensation insurance to the extent that it is required by law, for all employees of the Association. The Association also shall purchase and maintain fidelity bonds or insurance (which shall be in an amount not less than one hundred fifty per cent (150%) of each year's estimated annual operating expenses and reserves and shall contain an endorsement of coverge of any person who may serve without compensation) sufficient to meet the requirements of any Mortgagee. The Association shall purchase and maintain such insurance on personal property owned by the Association, and any other insurance that it deems necessary or that is required by any Mortgagee. (f) Owner's Insurance. An Owner may carry whatever personal liability and property damage insurance with respect to his Condominium that he desires. However, any such policy shall include a waiver of subrogation clause acceptable to the Association and to any Mortgagee. (g) Adjustment of Losses. The Association is appointed attorney-in-fact by each Owner to negotiate and agree on the value and extent of any loss under any policy carried pursuant to Subsections (a), (b), and (c). The Msociation is granted full right and authority to compromise and settle any claim or enforce any claim by legal action or otherwise and to execute releases in favor of any insurer. (h) Distribution of Mortgagees. Any Mortgagee has the option to apply insurance proceeds payable on account of a Page 27 Condominium, in reduction of the obligation secured by the mortgage of such Mortgagees. (i) Awards in Accordance With Fair Market Value. Any insurance awards distributed to any Owner shall be in accordance with the fair market value of his Living Unit as it relates to the fair market value of the Condominium Property or Project in total as established by an independent appraiser. (30) BUDGETS AND FINANCIAL STATEMENTS. The following financial information shall be regularly prepared and distributed by the management or governing body to all members regardless of the number or members or the amount of assets of the Association. (a) A budget for each fiscal year consisting of at least the following information shall be distributed not less than forty-live (45) days prior to the beginning of the fiscal year: (i) Estimated revenue and expenses on an accrual basis; (ii) The amount of the total cash reserves of the Association currently available for replacement or major repair of common facilities and for contingencies; (iii) An itemized estimate of the remaining life of t and the methods of funding to defray repair, replacement, or additions to major components of the Common Area and facilities for which the Association is responsible; and (iv) A general statement setting forth the procedures used by the management or governing body in the calculation and establishment of reserves to defray the costs of repair, replacement or additions to major components of the Common Area and facilities for which the Association is responsible. (b) A balance sheet as of an accounting date which is the last day of the month closest in time to six (6) months from the date of closing of the first sale of an interest in the Page 28 subdivision and an operating statement for the period from the date of the first closing to the said accounting date shall be distributed within sixty (60) days after the accounting date. This operating statement shall include a schedule of assessments received and receivable identified by the number of the subdivision interest and the name of the entity assessed. (C) A report consisting of the following shall be distributed within one hundred twenty (120) days after the close of the 'fiscal year. (i) A balance sheet as of the end of the fiscal year. (ii) An operating (income) statement for the fiscal year. (iii) A statement of changes in financial position for the fiscal year. (iv) For any fiscal year in which the gross income to the Association exceeds seventy— five thousand dollars ($75,000), a copy of the review of the annual report prepared in accordance with generally accepted accounting principles by a licensee of the California State Board of Accountancy. (v) If the report referred to in subsection (d) above is not prepared by an independent accountant, it shall be accompanied by the certificate of an authorized officer of the Association that the statement was prepared from the books and records of the Association without independent audit or review. (vi) In addition to financial statements, the governing body shall annually distribute within sixty (60) days prior to the beginning of the fiscal year a statement of the Association's policies and practices in enforcing its remedies against members for defaults in the payment of regular and special assessments including the recording and foreclosing of liens against members' subdivision interest. Page 29 (31) CONFLICT. If there is any conflict between any provision of this Declaration of Restrictios and the By-Laws of the Association, the provisions of this Declaration shall prevail and control. IN WITNESS THEREOF, this Declaration has been executed as of the date and - year first hereinabove set forth. GE NE R A L * P A R TN ER S EDWARD J. BANRO, JR., Trustee Under Trust Dated May 22, 1978 RALPH L. PETERS L MITE D * P A R T N E RS DONALD A. ASHFORTH PATRICIA A. ASHFORTH NICHOLAS P. BARTOLINI MICHAEL D. MONTGOMERY DECLARANT MAP NO. LL • — LA COSTA VALLEY UNIT NQ 5 SHEET 5 OF 6 SHEETS ftx%~T Ow P)ER 90215 ç U4 ' co.TXC tt Q . . . I/I.' '..'b LL. i... . 2726'No45Q5W ' ' .-- )ob,.a--..--• —. MA2 . 1910 F,'4Q4' ) \.. '.L' ,Y605J03ft /5199 , 9000• 400. .. \ NM'55'05"Y i•• 4 .' 250 \ 0 •'Q t4• II .i I • 249 I j• - t- 238 -----1 \ 0914 Ad /" IJN i 239Ug laz Z6_ Pr .. ... - 11 r \ • .. .. - . \ •.• 240 ' . /4ç 4'11,30- . u,5.51. • As 237 10 . Ogaro \_-OAA . 241 VVA "2 \ . \ ' O4.O OErtCAflf i- . 1p \ . 23 . 0 CA 90 /' "s. ;-' 4j•;f MÔO 3:4t - _0• . . \t\\ . / W41 0 C-) 0 z SCALE : 1; 200' Pd f D T U lot-I.-., CASE NO.: ? 7 DATE PEIVED:_________________ APPLICANT: Bc2.k o _t.Q) C. REJEST: '.f a0-Q -cI a&t-z~ U19 Y-- ea-c~ (t) ENVIRONMENTAL EXEMPT OR ECD:__________________________ Posted: Prior Ccitpliaixe: Published:________ Filed: Filed: NEGATIVE DECLARATION: _9- //4 Posted: Notice of Determination:_______ ENVIRONMENTAL IMPACT REPORT:______________________ Notice of Notice of Notice of Preparation: Determination:_________ [l'f.ie4 1. Date of Hearing: /0 - I 0 2. Publication:______________________ 3. Notice to Property (Xners:_____________ 4. Resolution No. 05 (,, .2. Date: ACTION : (continued to: o 5. eal:__________________________________ CITY COUNCIL 1. Date of Hearing:________________________ 2 Notices to City Clerk:________________ 3. Agenda Bill:_______________________________ 4. Resolution No. 5. Ordinance No. Date:_______ Dated_______ CORRESJPCNDENCE Staff Report toApplicant.; Resolution to Applicant:'