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Covenant Regarding Real Property 2019-0092911RECORDING REQUEST BY CITY OF POWAY WHEN RECORDED MAIL TO CITY CLERK CITY OF POWAY P O BOX 789 POWAY CA 92074-0789 DOC# 2019-0092911 111111 I l l i l 11111111111111111111111111111111111 I I I I I I I I I I I I I I I I I Mar 15, 2019 10:12 AM OFFICIAL RECORDS Ernest J. Dronenburg,Jr., SAN DIEGO COUNTY RECORDER FEES: $119.00 (SB2 Atkins: $75.00) (This space for Recorder's Use) APN: 317-490-02 CUP 18-005 & DR 17-005 COVENANT REGARDING REAL PROPERTY PAGES: 11 Wishnack Family Trust 06-18-08 ("OWNER" hereinafter) is the owner of real property commonly known as 12775 Poway Road ("PROPERTY hereinafter) and more fully described in the legal description attached hereto as Exhibit A and made a part hereof. In consideration of the approval of Conditional Use Permit (CUP) 18-005 and Development Review (DR) 17-005 by the City of Poway ("CITY" hereinafter), OWNER hereby agrees to abide by the conditions of approval contained in the attached Resolution (Exhibit B). This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrances, successors, heirs, personal representatives, transferees and assigns of the respective parties. In the event that CUP 18-005 and DR 17-005 expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 18-005 and DR 17-005, upon the request of the OWNER the CITY shall expunge this Covenant from the record title of the PROPERTY and CUP 18-005 and DR 17-005 shall be of no further force or effect. If either party incurs costs as a result of filing a civil action to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other party. I Dated: Dated: Z / Z 20 / OWNER OR AUTHORIZED AGENT: Wishnack Family Trust 066-18-0�8 Michael Wishnack, DVM, Trustee IcA-d-T-C - Darsi C. Wishnack, Trustee /� �/ CITY OF PO AY: Dated: "/ l d _ By: olort J. Manis, Dir for vel nt Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of / `/ ` �i r On (7�' 1 d —�1 (t before me, rJP�' Date re In ert Name a d Titl of the Office personally appeared / / cel hA_a0 who 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. I certify under PENALTY OF PERJURY under the laws Of the California that the foregoing paragraph is tru and corre r WIT ESS my In d nd offi I seal. JAMA DEE MILLER Notary Public— California San Diego County > Commission#2186633 SignatU My comm. Expires Apr 11, 2021 ignature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Q �b b• • • •b •b • b•<• ;94 itr✓ b•� EXHIBIT "A" ALL THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED NOVEMBER 14, 1880, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EAST LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 14, DISTANT THEREON 1002.00 FEET NORTHERLY FROM THE SOUTHEAST QUARTER; THENCE WEST PARALLEL WITH THE SOUTH LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER, 260.00 FEET, MORE OR LESS, TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF ROAD SURVEY NO. 987, AS THE RIGHT OF WAY FOR SAID ROAD WAS CONVEYED TO THE COUNTY OF SAN DIEGO BY DEED RECORDED AUGUST 9, 1950, IN BOOK 3750, PAGE 458 OF OFFICIAL RECORDS; THENCE NORTHEASTERLY ALONG SAID SOUTHEASTERLY LINE TO ITS INTERSECTION WITH THE EAST LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 14; THENCE SOUTHERLY ALONG SAID EAST LINE TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE EASTERLY 42.00 FEET OF THE NORTHERLY 100.00 FEET AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED AUGUST 12, 1963 AS FILE NO. 141806. ALSO EXCEPTING THEREFROM THAT PORTION LYING NORTHEASTERLY OF THE ARC OF A 25.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, WHICH IS TANGENT WESTERLY IN THE SOUTHEASTERLY LINE OF ROAD SURVEY NO. 1713, AND WHICH IS TANGENT SOUTHERLY ON THE WESTERLY LINE OF THE EASTERLY 42.00 FEET OF THE FIRST HEREINABOVE DESCRIBED LAND; AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED AUGUST 12, 1963 AS FILE NO. 141806. ***END OF LEGAL DESCRIPTION*** RESOLUTION NO. P-18-28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT 18-005 AND DEVELOPMENT REVIEW 17-005 ASSESSOR'S PARCEL NUMBER 317-490-02 ___._._WHEREAS,_an_application-for_Conditional_Use_P_ermit_(C.UP-)_1&005_and-Development ___ Review (DR) 17-005 was submitted by Sean Meehan, Applicant f Wishnack Family Trust 06-18- 08, Owner, to construct a 1,200 square -foot addition and remodel to an existing, legal non- conforming animal emergency medical clinic, and modify the existing parking lot at 12775 Poway Road located within the Planned Community (PC) zone and the Commercial Office (CO) district of the Poway Road Specific Plan (PRSP); WHEREAS, on November 7, 2018, the City Council held a duly advertised public hearing to solicit comments from the public, both for and against, relative to this application; and WHEREAS, the City Council has read and considered the agenda report for the proposed revisions to the project and has considered other evidence presented at the public hearing. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows: Section 1: The proposed project is Categorically Exempt as a Class 1 Categorical Exemption from the California Environmental Quality Act (CEQA) pursuant to Section 15301(e)(2) of the CEQA Guidelines, in that the project involves the addition to an existing structure that is less than 10,000 square feet and is an area that is not environmentally sensitive, and all public services and facilities are available for the project. Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code (PMC) (Findings required for a conditional use permit), for CUP 18-005 are made as follows; A. The location, size, design and operating characteristics of the proposed expanded use and development are in accord with the title and purpose of PMC Chapter 17.48 (Conditional Use Permits Regulations), the PRSP, the General Plan, and the development policies and standards of the City in that veterinary services are permitted in the CO district of the PRSP with the approval of a CUP and a veterinary clinic is a service that would benefit the nearby residential neighborhoods and surrounding communities. B. The location, size, design, and operating characteristics of the proposed expanded use and development will be compatible with and will not adversely affect or be materially detrimental to adjacent uses, people, buildings, structures, or natural resources in that there is adequate vehicular access and on-site parking to serve the proposed use and the project site is surrounded by compatible commercial development and is in the vicinity of nearby residential neighborhoods with appropriate setbacks. C. The proposed expanded use and development is in harmony with the scale, bulk, coverage, and density of, and is consistent with the surrounding commercial development, in that the project has been designed to comply with all the development standards of the Zone, including setbacks, building height and lot coverage. EXHIBIT B Resolution No. P-18-28 Page 2 D. There are adequate public facilities, services and utilities available at the subject site to serve the proposed expanded use and development. There will not be a harmful effect upon desirable neighborhood characteristics in that the architectural style of the veterinary clinic building and landscaping are consistent with the PRSP design standards and in character with surrounding development. capacity and physical character of the surrounding streets and/or the of the General Plan. G. The site is suitable for the type and intensity of use or development in that the project is an expansion of an existing veterinary clinic located on the corner of two major streets and the project has been designed to provide adequate on-site parking for the proposed use. H. There will not be significant harmful effects upon environmental quality and natural resources in that the project is the expansion of an existing veterinary clinic on a site that has been previously developed and contains no remaining natural habitat. I. There are no relevant negative impacts of the proposed expanded use and development that cannot be mitigated. J. That the impacts, as described in subsections A through I of this Section, and the proposed location, size, design, and operating characteristics of the proposed expanded use and development and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity, nor be contrary to the adopted General Plan. K. That the proposed conditional use will comply with each of the applicable provisions of PMC Title 17. Section 3: The findings for DR 17-005, in accordance with Section 17.52.010 of the PMC (Purpose of Development Review), are made as follows: A. The project has been designed to be architecturally compatible and in scale with surrounding commercial development and will include an extensive area of landscaping along the street and a major intersection. Therefore, the project respects and recognizes the interdependence of land values and aesthetics to the benefit of the City. B. The project has been designed to minimize impacts on surrounding development in that the building has been designed to be consistent with the PRSP design standards and the exterior materials and colors of the building will be compatible with the surrounding commercial development. Most of the existing landscaping will be retained and trees that are necessary to be removed will be replaced on site. Therefore, the proposed development respects the public concerns for the aesthetics of development and encourages the orderly and harmonious appearance of structures and property within the City. C. The granting of the DR would not be materially detrimental to the public health, safety or welfare within the community since the proposed project will modify the relocation of the Resolution No. P-18-28 Page 3 existing driveway on Poway Road further west from the Poway Road and Carriage Road intersection and adequate infrastructure exists in the area to serve the site. D. The project has been designed to be consistent with development in the surrounding area in that the project has been designed to comply with the required design standards of the PRSP and the exterior materials and colors of the building will blend visually and be compatible with the surrounding commercial development. Therefore, the proposed E. The project will not have an adverse effect on the aesthetics, health and safety, or an architecturally related impact upon adjoining properties, in that the project has been designed to be consistent with the design standards of the PRSP and the exterior materials and colors of the building blend visually and be compatible with the surrounding commercial development. The design of the proposed development is consistent with all elements of the Poway General Plan and the PRSP, as well as the project conforms with the applicable provisions of the PMC Zoning Ordinance (Title 17). G. The project complies with all of the provisions of the Zoning Ordinance and the general plan. Section 4: The findings, pursuant to Government Code Section 66020, for the public improvements for DR 17-005 are made as follows: A. The design and improvements of the proposed development are consistent with all elements of the Poway General Plan, as well as City ordinances, because all necessary facilities will be available to serve this project. B. In accordance with the Poway General Plan, the project requires the payment of development impact fees, which are assessed on a pro -rata basis to finance public infrastructure improvements, which promote a safe and healthy environment for the residents of the City. Section 5: The City Council hereby approves CUP 18-005 and DR 17-005 as shown on the approved plans on file with the City, subject to the following conditions: A. The applicant shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any and all claims, actions, proceedings, damages, judgments, or costs, including attorney's fees, against the City or its agents, officers, or employees, relating to the issuance of this permit, including, but not limited to, any action to attack, set aside, void, challenge, or annul this development approval and any environmental document or decision. The City may elect to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification. In the event of such election, applicant shall pay all of the costs related thereto, including without limitation reasonable attorney's fees and costs. In the event of a disagreement between the City and applicant regarding litigation issues, the City shall have the authority to control the litigation and make litigation related decisions, including, but not limited to, settlement or other disposition of the matter. However, the applicant shall not be required to pay or perform any settlement unless such settlement is approved by applicant. Resolution No. P-18-28 Page 4 Approval of this CUP request shall apply only to the subject project and shall not waive compliance with all sections of the Zoning Ordinance and all other applicable City ordinances in effect at the time of Building Permit issuance. C. Within 30 days of the date of this approval, and before the issuance of any permit: (1) the applicant shall submit in writing that all conditions of approval have been read and understood; and (2) the property owner shall execute a Covenant Regarding Real Property-in-orderfor-the-Oty-to-prepare-the— ovenant the -applicant -must -first -submit -a legal description of the subject site. D. The use conditionally granted by this approval shall not be conducted in such a manner as to interfere with the reasonable use and enjoyment of surrounding uses. E. The conditions of CUP 18-005 shall remain in effect for the life of the subject use and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner. F. CUP 18-005 may be subject to annual review, as determined by the Director of Development Services, for compliance with the conditions of approval and to address unresolved operational concerns that may have been raised during the prior year. G. The applicant shall obtain a Building Permit. Prior to issuance of a Building Permit, the applicant shall comply with the following: 1. The applicant shall comply with the latest adopted building and electric codes, and all other applicable codes and ordinances in effect at the time of Building Permit issuance. 2. The site shall be developed substantially in accordance with the approved plans on file in the Development Services Department and the conditions contained herein to the satisfaction of the Director of Development Services. (Engineering) 3. All spoil materials from footings and foundations shall be legally disposed of off-site or if the material is to remain on-site, the material shall be placed per the requirements of the City grading ordinance. 4. Applicant shall incorporate Low Impact Development (LID) design features into the site development. These shall be clearly shown and identified on the building plan site plan and be appropriately sized for the proposed level of development. 5. A minimum cash security for erosion control is required. 6. The applicant shall pay the storm water pollution inspection (commercial/industrial) fee according to the latest adopted master fee schedule. 7. The applicant shall attend a pre -construction meeting at the Department of Development Services. The scheduling request shall be submitted on a City standard form available from the City's project engineer. The applicant's action plan that identifies measures to be implemented during construction to address erosion, sediment and pollution control will be discussed. Compliance for sediment control Resolution No. P-18.28 Page 5 shall be provided as directed by the project inspector. 8. Erosion control shall be installed and maintained by the developer from October 1 to April 30 annually. The developer shall maintain all erosion control devices throughout their intended life. 9. Prior to start of any work within a City -held easement or right-of-way, a Right -of -Way Department. All appropriate fees shall be paid prior to permit issuance. 10. The applicant shall pay all applicable development impact fees in effect at time of permit issuance. (Planning) 11. The applicant shall contact the Poway Unified School District (858) 679-2570 to verify if school impact fees are required. If required, the fees shall be paid at the rate established at the time of Building Permit issuance. 12. All architectural details shown on the approved CUP/DR plans shall also be shown on the building plan check submittal. Any major modifications to the building or site design details on the approved CUP/DR plans will require a DR revision and City Council approval. 13. The building plans shall include elevations and cross sections that show all roof appurtenances, including air conditioning, architecturally integrated, screened from view, and sound buffered from adjacent properties and streets, to the satisfaction of the Director of Development Services. 14. The colors on the building shall be consistent with the approved colors on file in the Planning Division. 15. Clearly show on the site plan of the building plans a trash enclosure of an adequate dimension to accommodate both trash and recycled materials containers. The trash enclosure shall be constructed of decorative block and provide solid gates to the satisfaction of the Director of Development Services. 16. A Tree Removal Permit shall be obtained Prior to removal of any trees, and tree replacements shall be provided in compliance with PMC Chapter 12.32. Prior to removal of trees during the recognized nesting season for raptors, a qualified professional shall evaluate the subject trees for nests and report the findings in writing to the City. Should a nest be located, removal of the tree shall be delayed until the nest(s) have been abandoned. 17. The plan shall show and note all required parking. Parking shall be provided in accordance with the Off-street Parking standards of the PMC. The site plan shall note that all parking spaces will be double striped. The parking lot design shall comply with the Americans with Disabilities Act for accessible spaces, with one van accessible space. Resolution No. P-18-28 Page 6 18. Landscape and irrigation plans shall be submitted and approved. The landscape and irrigation plans shall demonstrate compliance with the City of Poway Landscape and Irrigation Design Manual, PMC Chapter 17.41, the PRSP, and all other applicable standards and ordinances in effect at the time of landscape and irrigation plan submittal. This includes, but is not limited to, the submittal of an irrigation audit report pursuant to Section 17.41.110 of the PMC, prior to final inspections and issuance of a Certificate of Occupancy. The landscape and irrigation plan submittal is separate from and irrigation plan review fees are required and are the responsibility of the applicant. To the satisfaction of the Director of Development Services, the landscape plans shall also provide the following: a. Irrigation, plant sizes and species for the landscape areas. b. A minimum of one 15 -gallon tree, per City specifications, shall be provided for every three parking spaces. Said tree shall be so located to provide shade cover for the vehicles where practical. c. The landscape plans shall show all tree replacements required by the Tree Removal Permit. d. The plans shall include shrubs to provide screening of the parking lot and trash enclosure as seen from Poway Road and Carriage Road. e. All existing landscaping on site shall be shown and the irrigation plan shall demonstrate that the existing landscaping will be irrigated. 19. Proposed signage shall be in accordance with the PMC Sign Ordinance (Chapter 17.40). The necessary permits and approvals shall be obtained for any signage proposed prior to installation. 20. The following requirements shall be completed to the satisfaction of the Director of Safety Services (Fire Marshall): a. The Building shall display the approved numbers and/or addresses in a location plainly visible and legible from the street or roadway fronting the property from either direction of approach. Said numbers shall contrast with their background and a size between 18 -inches (minimum) and 24 -inches (maximum). Each building address shall also be displayed on the roof in a manner satisfactory to the Director of Safety Services, and meeting Sheriff Department-ASTREA criteria. b. A 2A10BC fire extinguisher(s) are required for office areas every 3,000 square feet and 75 feet of travel distance. c. Permanent access roadways for fire apparatus shall be designated as 'Fire Lanes' with appropriate signs and curb markings. d. Rack storage in excess of eight -feet in height requires a building department permit for installation. Prior to issuance of the Certificate of Occupancy: (Engineering) 1. All existing and proposed utilities or extension of utilities required to serve the project shall be installed underground. No extension of overhead utilities shall be permitted. Resolution No. P-18-28 Page 7 2. The applicant shall repair, to the satisfaction of the City Engineer, all damages to public improvements caused by construction activity from this project. (Planning) 3. The site shall be developed in accordance with the approved plans on file in the Development Services Department and the conditions contained herein. A final inspection from appropriate City departments will be required. Upon establishment of the proposed use, pursuant to CUP 18-005, the following shall apply: All landscaping on-site and within the adjacent public right-of-way shall be adequately irrigated, and permanently and fully maintained by the owner at all times in accordance with the requirements of the City of Poway Landscape and Irrigation Design Manual. The trees shall be encouraged and allowed to retain a natural form. Trees should be trimmed or pruned as needed to develop strong and healthy trunk and branch systems. Tree maintenance and pruning shall be in accordance with "American National Standard for Tree Care Operations" latest edition (ANSI A300). Trees shall not be topped, and pruning shall not remove more than 25 percent of the trees' leaf surface. 2. The parking areas, driveways and landscape areas shall be well maintained. Any damage from any cause shall be repaired as soon as reasonably possible to minimize occurrences of dangerous conditions or visual blight. 3. The owner or operator of the facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in this permit. 4. All lighting fixtures shall be maintained such that they reflect light downward, away from any road or street, and away from any adjoining residential development. Section 6: The approval of CUP 18-005 and DR 17-005 shall expire on November 7, 2020, at 5:00 p.m. unless, prior to that time, a Building Permit has been issued and construction on the property in reliance on the CUP approval has commenced prior to its expiration. Section 7: The parties are hereby informed that the time within which judicial review of this decision must be sought is governed by Section 1094.6 of the California Code of Civil Procedure. PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway, California, at a regular meeting this 7th day of November 2018. Steve Vaus, Mayor Resolution No. P-18-28 Page 8 ATTEST: Nana(/Neu eld, CMC, City Clerk STATE OF CALIFORNIA ) )SS COUNTY OF SAN DIEGO ) I, Nancy Neufeld, City Clerk of the City of Poway, California, do hereby certify under penalty of perjury that the foregoing Resolution No. P-18-28 was duly adopted by the City Council at a meeting held on the 7th day of November 2018 and that it was so adopted by the following vote: AYES: LEONARD, FRANK, GROSCH, MULLIN, FRANK NOES: NONE ABSENT: NONE DISQUALIFIED: NONE N nc N of d, CIVIC, City Clerk City of Poway