Covenant Regarding Real Property 1992-0693418
CITY CLERK
CITY OF POWAY
P.O. BOX 789
POWAY, CA 92064
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oor " 1992-0693418
30-0CT-1992 08:29 AM
OFFICIAL RECORDS
SAH DIEGO COUNTY RECORDER'S OFFICE
AHHETTE EVAHS, COUHTY RECORDER
RF: 12.00 FEES:
AF: 19.00 HA
MF: 1.00
32.00
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RECORDING REQUEST BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
No Transfer Tax Due
(This SDace for Recorder's Use)
COVENANT REGARLING REAL PROPERTY
Riley J. Lively and onie o. Lively as Trustees pursuant to
Declaration of Trust dated April 1, 1982 (a revocable living trust)
and Rally's Hamburgers, lessee ("OWNER" hereinafter) is the owner
of real property described in Exhibit A which is attached hereto
and made a part hereof and which is commonly known as Assessor's
Parcel Number 317-101-40 ("PROPERTY" hereinafter) . In
consideration of the approval of Conditional Use Permit 92-04 and
Development Review 92-05 by the City of poway ("CITY" hereinafter),
OWNER hereby covenants and agrees for the benefit of the CITY, to
abide by conditions of 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, encumbrancers,
successors, heirs, personal representatives, transferees and
assigns of the respective parties.
In the event that Conditional Use Permit 92-04 and Development
Review 92-05 expire or are rescinded by city Council at the request
of the OWNER, CITY shall expunge this Covenant from the record
title of the PROPERTY.
If either party is required to incur costs 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. The CITY may assign to persons
impacted by the performance of this Covena t theiright to enforce
this Covenant against OWN,R. ( 0
Dated:' 7' /0 c;?-lJ 'if 1/
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Dated:
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CITY
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(No ne d to Notarize)
By
OCT 2 5 1992
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OODER N::>.: 166911-02
SOIElXJLE A (cxntinued)
All that partien of the Southeast Quarter of the N:Jrthwest Quarter of
Sectien 13, ~p 14 South, ~ 2 West, San Bernardin:> Meri.dian, in the
Camty of San Diego, State of Califomia, at=lrding tx> Uni.ted States
Goverment Survey, ...- :.d.bed as f01.lCMS:
Camercing at the Southeast =mer of sai.d Southeast Quarter of the
N:Jrthwest Quarter of Sectien 13; treoce alcrg the SoutlEr1y line of sai.d
Southeast Quarter of the N:Jrthwest Quarter, NoI:-t:- 89008' 30" West, 459.50
feet tx> the Southwest =mer of land described L deed tx> Raym::nj Hampe,
recorded August 25, 1953 in 800k 4965, Page 184 of Official Records and the
True Point of Beginning; treoce alcrg the Westerly line of sai.d Hampe's
land, N:Jrt:h 01054'00" East, 489.33 feet tx> the Southwest =mer of land
descri.bed in deed to ~ H. R:.acx:x::k, et al, r=Ued Septanber 2, 1953 in
800k 4974, Page 78 of Offi.cial~ds; treoce alex>;; the Westerly line of
sai.d ~'s lana, N:Jrt:h 01054'00" East, 315.85 feet, nore = less, to an
angle );X)int in the SoutlErly boundary of land descri.bed in deed to ~ H.
rr- ock, et al, reo:::o.:ded February 2, 1954 in 800k 5128, Page 345 of Official
Re...ilids; treoce alcrg the SoutlErly line of sai.d rr- ,.:k's land, N:Jrt:h
88059'00" West, 247.54 feet tx> the Southwest =mer of sai.d land; treoce
Southwesterly in a straight lim tx> the N:Jrthwest =mer of land described
in deed tx> Jetln Henry Caudell, et ux, ~Ued February 15, 1954 in 800k
5141, Page 464 of Official Rerords; treoce alcrg the ~ly line of
sai.d Caudell's land, South 36055'00" West, 395.88 feet tx> the Soutmlesterly
cx:)J:r~ there::>f, beir:g a lXlint en the SoutlErly line of sai.d SoutTeast
Quarter of the N:Jrthwest Quarter; treoce allnJ said SoutlErly lim, South
89008'30" East, 695.50 feet tx> the True Point of Beginning.
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OFFICIAL SEAL
BfTTY l SEilER
NOTARY PUBLIC - CAUI='OP.NIA 1,
SWl DIEGO COUNlY
;My comm. "pi... JON I, 1993
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19 'i'-<., before me, ·
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RI"/e} T L,vc~v and Oh/~ 0- LJV-e!v
1;;4 personally known to me
[J proved to me on the basis of
be the person(s) whose name(s)
the within instrument, and acknowledged
executed it.
WITNESS my hand and official seal.
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to ·
to ·
satisfactory evidence
subscribed
that /A,,~v
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Notary's Si ature
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PARTNERSHIP ACKNOWLEDGMENT
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* State of
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On this the ____day of
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the udersigned Notary Public, personnally appeared
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[J personally known to me
[J proved to me on the basis of satisfactory evidence
to be the person(s) who executed the within instrument
on behalf of the partnership and aCknowledged to me that
the partnership executed it.
WITNESS my hand and official seal.
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· Notary's Signature .
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On this the ~day of C!J c...+ob-e y 19 ~Z before me, .
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~CA-.e+ \J... C~O \"\."1"\ ~RD
the udersigned Notary Public, personnally appeared
12 "" cJ. t-<' c "I. \l.- ~d '
[J persona 11 nown to me .
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[d ,prQ\1id tg me en th! baJi! uf :>ClLI::.fC1l,Lvl'j et'id~lIl.t: to *
~the person(s) who executed the within instrument as .
n-e::-:>\o.--e r--.-\ # on behalf of the corporation .
therein named, and acknowledged to me that the corporation.
executed it. .
WITNESS my hand and official ~ :
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CORPORATE ACKNOWLEDGMENT
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· State of CI1\... l Fa Ii~ \f:\.
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: County of SO,", -:t5\(jO) 55.
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CffICIAL SEAl.
JANET M. QtC)UINARO
NalOIY P\dc.CaIfomIO
SAN OIEOO COUNlY
My commIlIIon EllI*es
November 25. 1994
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605
RESOLUTION NO. P- 92-48
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONOITIONAL USE PERMIT 92-04 AND
DEVELOPMENT REVIEW 92-05
ASSESSOR'S PARCEL NUMBER 317-101-40, 41
WHEREAS, Conditional Use Permit 92-04 and Development Review, submitted by
Rally's Hamburgers, applicant and Riley J. Lively, owner, for the purpose of
establishing a drive-through restaurant at 13230 Poway Road in the City of Poway,
County of San Diego, State of California; and
WHEREAS, on September 29, 1992, the City Council held a public hearing on
the above-referenced items.
NOW, THEREFORE, the City Council does hereby resolve as follows:
Section I: Environmental Findinos:
The City Council finds that Conditional Use Permit 92-04 and Development
Review will not result in any significant impact on the environment and
hereby issues a Negative Declaration.
Section 2: Findinos:
Conditional Use Permit 92-04
I. The proposed project is consistent with the General Plan in that it
proposes commercial uses on a site designated CG (Commercial
General).
2. The location, size, design, and operating characteristics of the
proposed use will be compatible with and will not adversely affect
or be materially detrimental to adjacent uses, residents, buildings,
structures, or natural resources, in that surrounding land uses are
commercial and the small scale of the project will serve to minimize
impacts.
3. The scale, bulk, coverage, and density is consistent with adjacent
uses in that the structures proposed are limited to a 711 square
foot building and a patio trellis cover and the project will meet
a 11 app 1 i cabl e property development standards i ncl udi ng parki ng
setbacks and lot coverage.
4. There are available public facilities, services, and utilities to
serve the proposed use in that the site is located within an
existing commercial center and all necessary public facilities have
already been provided.
Develooment Review 92-05
1. That the proposed development is in conformance wi th the Poway
General Plan in that drive-through restaurants are permitted in the
CG zone with approval of a conditional use permit.
606
Resolution No. P-92-48
Page 2
2. That the proposed development wi 11 not have an adverse aesthetic
health, safety, or architecturally related impact upon adjoining
properties as noted under the findings in the preceding section.
3. That the proposed development is in compliance with the Zoni ng
Ordinance in that all applicable development standards are met by
the project design.
4. The proposed development encourages the orderly and harmonious
appearance of structures and property within the City in that the
scale and design of the building will be similar to or smaller than
that of other commercial developments along Poway Road.
Section 3: Citv Council Decision:
The City Council hereby approves Conditional Use Permit 92-04 and
Development Review 92-05 subject to the following conditions:
1. Within 30 days of approval (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 on Real Property.
2. The use conditionally granted by this permit shall not be conducted
in such a manner as to interfere with the reasonabl e use and
enjoyment of surrounding residential and commercial uses.
3. The project will be subject to an annual review by the Planning
Director per Section 17.48.140 of the Zoning Ordinance to monitor
compliance with the conditions of approval.
APPLICANT SHALL CONTACT THE DEPARTMENT OF PLANNING SERVICES REGARDING COMPLIANCE
WITH THE FOLLOWING CONDITIONS:
SITE DEVELOPMENT
1. Site shall be developed in accordance with the approved site plans on file
in the Planning Services Department and the conditions contained herein.
2. Revised site plans and building elevations incorporating all conditions of
approval shall be submitted to the Planning Services Department prior to
issuance of building permits.
3. Approval of this request 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.
4. Prior to any use of the project site or business activity being commenced
thereof, all conditions of approval contained herein shall be completed to
the satisfaction of the Director of Planning Services.
607
Resolution No. P-92-48
Page 3
5. The applicant shall comply with the latest adopted Uniform Building Code,
Uniform Mechanical Code, Uniform Plumbing Code, National Electric Code,
Uniform Fire Code, and all other applicable codes and ordinances in effect
at the time of building permit issuance.
6. The monument sign shall be reduced to 40 square feet in size.
7. For a new commercial development, the applicant shall pay development fees
at the established rate. The following fees, including, but not be
limited to, traffic mitigation (based on applicants estimate of a minimum
of 300 cars per day less credit for prior uses (approximately 60 cars per
day - $7,920), water base capacity (to be based on increased meter size),
sewer connection fees (increase based on the original three EDU's paid at
$750jEDU - $4,818), and median reimbursement fees ($3,774.83) shall be
paid prior to building permit issuance.
Permit and plan check fees shall be paid upon submittal of a grading plan.
8. Thi s approval shall become null and void if building permits are not
issued for this project within two years from the date of project
approval.
PARKING AND VEHICULAR ACCESS
1. Parking lot lights shall be low pressure sodium and have a maximum height
of 18 feet from the finished grade of the parking surface and be directed
away from all property lines, adjacent streets and residences.
2. All parking spaces shall be double striped.
LANDSCAPING
1. A deta il ed 1 andscape and i rrigat i on pl an shall be submi tted to and
approved by the Pl anni ng Servi ces Department pri or to the issuance of
building permits. Landscape plans shall incorporate berming, shrubs, and
trees spaced no more than 15 feet on center adjacent to the outdoor patio
to shield the eating area from Poway Road.
2. Landscape plans shall incorporate a pedestrian connection with the car
wash.
3. The site shall be annexed into Landscape Maintenance District 86-038.
4. All landscaped areas shall be maintained in a healthy and thriving
condition, free from weeds, trash, and debris.
SIGNS
Any signs proposed for this development shall be designed and approved in
conformance with the Sign Ordinance. The freestanding sign shall
incorporate a street address.
608
Resolution No. P-92-48
Page 4
ADDITIONAL APPROVALS REOUIRED
The applicant shall provide verification of State Board of Equalization
not i fi cat i on and that appropri ate revi ews and/or approvals have been
accomplished to the satisfaction of the Director of Administrative
Services.
APPLICANT SHALL CONTACT THE DEPARTMENT OF ENGINEERING SERVICES REGARDING
COMPLIANCE WITH THE FOLLOWING CONDITIONS:
GRADING
1. Grading of the subject property shall be in accordance with the Uniform
Building Code, City Grading Ordinance, approved grading plan and
geotechnical report, and accepted grading practices.
2. A soils report shall be prepared by a qualified engineer licensed by the
State of California to perform such work at first submittal of grading
plan.
3. The final grading plan, prepared on a standard size sheet, shall be
subject to review and approval by the Planning and Engineering Services
Departments and shall be completed prior to issuance of a grading permit.
4. A pre-blast survey of surrounding property shall be conducted to the
satisfaction of the City Engineer prior to any rock blasting. Seismic
recordings shall be taken for all blasting and blasting shall occur only
at locations and levels approved by the City Engineer.
5. A fi na 1 compact i on report sha 11 be submi tted and approved pri or to
issuance of bUilding permits.
6. Site grading shall be certified by the project civil engineer prior to
issuance of building permits.
7. All new slopes shall be a minimum of 2:1 (horizontal to vertical).
8. Non-supervised nor non-engineered fill is speCifically not allowed. Rock
disposal areas shall be graded in compliance with City-approved soils
investigations and recommendations and grading plans.
9. Erosion control, including but not limited to desiltation basins, shall be
installed. The developer shall make provisions to insure the proper
maintenance of all erosion control devices throughout their intended life.
STREETS AND SIDEWALKS
1. Reciprocal access and maintenance and/or agreements shall be provided for
the adjacent property (Lively Center) insuring access to all parcels over
roads, drives or parking areas and maintenance thereof to the satisfaction
of the Director of Enginf ,'ring Services.
609
Resolution No. P- 92-48
Page 5
2. Street striping and signing shall be installed to the satisfaction of the
Director of Engineering Services. Identification of signs shall be shown
on street improvement plan.
3. All pavement structural sections shall be submitted to and approved by the
Director of Engineering Services. Pavement sections shall conform to the
minimum required by the Poway Municipal Code.
4. All exterior street improvements shall be constructed prior to issuance of
buil di ng permits, to the sat i sfact i on of the Di rector of Engi neering
Services.
5. Street improvements include, but are not limited to construction,
demolition, and repair of:
XX Sidewalks
XX Dri veways
~ Wheel chair ramps
~ Curb and gutter
_____ Cross gutter
_____ Alley gutter
--XX- Street paving
_____ Alley paving
shall be constructed prior to the occupancy of the units to the
satisfaction of the Director of Engineering Services.
6. All damaged off-site public works facilities, including parkway trees,
sha 11 be repa i red or replaced pri or to issuance of a Cert Hi cate of
Occupancy, to the satisfaction of the Department of Engineering Services.
7. Prior to any work being performed in the public right-of-way, an
encroachment permit shall be obta i ned from the Engi neeri ng Servi ces
Department and appropriate fees paid, in addition to any other permits
required.
8. A detailed, dimensioned sketch of all driveway revisions must be submitted
for City review and approval.
9. The developer shall pay a pro-rata share of the cost of a City approved
landscaped median along the project frontage(s) in the amount of $3,774.83
prior to building permit issuance.
10. Street improvements and maintenance shall be made in accordance with City
Ordinance standards for urban streets.
11. The developer shall acqui re an encroachment permit for any private
improvements placed within the public right-of-way.
DRAINAGE AND FLOOD CONTROL
I. The proposed project falls within areas indicated as subject to flooding
under the National Flood Insurance Program and is subject to the
provisions of that program and City Ordinance.
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610
Resolution No. P-92-48
Page 6
2. A drainage system capable of handling and disposing of all surface water
originating within the development, and all surface waters that may flow
onto the development from adjacent lands, shall be requi red. Sa id
drainage system shall include any easements and structures as required by
the Director of Engineering Services to properly handle the.drainage.
3. Concentrated flows across driveways and/or sidewalks shall not be
permitted.
4. Developer shall clearly label those areas designated as floodway and
floodplain on the grading play. These areas shall be determined from an
analysis of the 100-year flood in accordance with the San Diego County
Hydrology Manual.
UTILITIES
Water, sewer, and fire protection systems plans shall be designed and
constructed to meet requirements of the City of Poway and the County of
San Diego Department of Health.
APPLICANT SHALL CONTACT THE DEPARTMENT OF SAFETY SERVICES REGARDING COMPLIANCE
WITH THE FOLLOWING CONDITIONS:
1. The building shall display their numeric address in a manner visible from
the access street. Building address shall also be displayed on the roof
in a manner satisfactory to the Director of Safety Services. Minimum size
of building numbers is six inches on facade of building.
2. A 'Knox' Security Key Box shall be required for the bUilding at a location
determined by the City Fire Marshal.
APPROVED and ADOPTED by the City Council of the City of Poway, State of
California, this 29th day of September 1992.
ATTEST:
)~L k' plJ~fv
Marjorie ~\ Wahlsten, City Clerk
(0
611
Resolution No. P-92-48
Page 7
STATE OF CALIFORNIA
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COUNTY OF SAN DIEGO
I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do hereby
certify, under the penalty of perjury, that the foregoing Resolution, No.P-92-48
, was duly adopted by the City Council at a meeting of said City Council
held on the 29th day of September , 1992, and that it was so adopted
by the following vote:
AYES: EMERY, HIGGINSON, MCINTYRE, SNESKO, GOLDSMITH
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
R[P{'..T\CUP9~04.RE:S