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Covenant Regarding Real Property 1993-0294354 CITY CLERK CITY OF POWAY P.O. BOX 789 POWAY, CA 92074-0789 ) ) } ) ) } ) } } } } ) 1914 DOC" 1993-0294354 11-MAY-1993 09:18 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE ANNETTE EVANS, COUNTY RECORDER RF: 13.00 FEES: 35.00 AF: 21. 00 MF: 1.00 . . RECORDING REQUEST BY: CITY OF POWAY WHEN RECORDED MAIL TO: No Transfer Tax Due (This SDace for Recorder's Use) COVENANT REGARDING REAL PROPERTY D & D Restaurants, Inc., a California corporation, as to an undivided 51% interest, Mark I. Greene and Kathryn Greene, husband and wife, as joint tenants, as to an undivided 16 1/3% interest, Steven J. Ferreira and Sheri R. Ferreira, husband and wife, as joint tenants, as to an undivided 12 1/4% interest, Daniel J. Ferreira and Joni B. Ferreira, husband and wife, as joint tenants, as to an undivided 12 1/4% interest, and Michael J. Aquilante, an unmarried man, as to an undi vided 8 1/6% interest ("OWNERS" herei nafter) are the owners 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 316-320-35 ("PROPERTY" hereinafter). In consideration of the approval of Variance 93-01 and Development Review 92-17 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 In the event that Variance 93-01 and Development Review 92-17 expire or are rescinded by City Council at the request of the OWNER, CITY shall expunge this Covenant from the record title of the PROPERTY.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 Covenant the right to enforce this Covenant against OWNER. , ~ ~ Dated: 3),1-/'3 jJ;At-rr~'h (2v~ I . D & D RESTA ANTS, A CALIFORNIA / ) COR A~~O~i' OW (Notarize) Dated: ~) / ) 2. 9.:3 '4rf!.A I GR ENE, OWNER (Notarize) Dated: KATHRYN GREfNE, OWNER (Notarize) CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California County of San Diego } On 3/12/93 before me Jeff Olson Notary Public DATE 'NAME, TITLE OF OFFICER. E,G., ~JANE DOE, NOTARY PUBUC. Steven J Ferreira , Sheri R Ferreira,Daniel J Ferreira,Joni B Ferrei personally appeared Robert D DePhilippis,Mark I Greene,Kathrvn Greene, and Michael Aquila~(SlOFSIGNEA(Sl IX! personally known to me - OR - 0 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 ac- knowledged 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. @ 0fRClAI. SEAL JEFF OLSON NotarY PubUc-CaIIIomIa IAN DIEGO COUNlY My CommISIfon .11 Nc/II8ITlber 18. 1994 d and official seal. No. 5193 _ OPTIONAL SECTION- CAPACITY CLAIMED BY SIGNER Though statute doeS not require the Notary to fill In the data below, doing so may prove Invaluable to persons relying on the document. o iNDIVlDUAL o CORPORATE OFFICER(S) TITLE{S) o PARTNER(S) 0 LIMITED o GENERAL o ATTORNEY.iN-FACT o TRUSTEE(S) o GUARDIAN/CONSERVATOR o OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY{leS) 1915 COVENANT REGARDING REAL PROPERTY VARIANCE 93-01/DEVELOPMENT REVIEW 92-17 APN 316-320-35 PAGE 2 Dated: 3-rz...-Q3 ~J' __ STEV . RRfIRA, OWNER (Notarize) ~R~ SH R FERREIRA, OWN Notarize} ~~;.1 L Dated: "'3- I "l..-- '\ "> Dated: 3-/2--13 Dated: 3 -/,2 - 95 ,2 Dated: :3 -/.;;?- 9'3 Dated: c?-;;<3-93 CITY OF POWAY By ~~d ~~} -L/~-tfL . . /1 .' " 1916 ORDER NJ.: 162592-05 saID:XJLE A (cx:ntim>ed) , Lot 68 of City of Poway Tract Map 88-03, in the City of Poway, County of San Diego, State of California, ac=rding to Map thereof NJ. 12683, filed in the Office of the County ReaJrder of San Diego County, August 14, 1990, as aJ.L.L"ected by Certificate of Correcticn .L.,a).cded Deoember 20, 1990 as File/Page NJ. 90-676494 of Official &,:,,:).cds. RESOLUTION NO. P- 93-06 1917 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA APPROVING VARIANCE 93-01 AND DEVELOPMENT REVIEW 92-17 ASSESSOR'S PARCEL NUMBER 316-320-35 WHEREAS, Variance 93-01 and Development Review 92-17, submitted by PizzaMakers, Ltd., appl icant, for the purpose of constructing a restaurant on the northwest corner of the Poway Road and Oak Knoll Drive intersection in the City of Poway, County of San Diego, State of California; and WHEREAS, on February 23, 1993, the City Council held a public hearing on the above-referenced items. NOW, THEREFORE, the City Council does hereby resolve as follows: Section 1: Environmental Findinos: The City Council finds that Variance 93-01 and Development Review 92-17 will not result in any significant impact on the environment and hereby issues a Negative Declaration with mitigation measures. Section 2: Findinqs: Variance 93-01 1. That there are special circumstances applicable to the property (size, shape, topography, location, or surroundings), or the intended use of the property, and because of this, the strict application of the Zoning Ordinance deprives the property of privileges enjoyed by other properties in the vicinity under identical zoning classifications. The amount of the lot actually available for development is constrained because of various encumbrances. The subject property has street frontages along three sides and the Zoni ng Ordi nance requires that street side yards be 20 feet wide in commercial zones and that they be landscaped. 2. Granting the variance, or its modification, is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and zone and denied to the property for which the variance is sought, in that there are other commercial properties in the vicinity of similar size which have approximately the same building size and lot coverage. 3. Granting the variance, or its modification, will not be materially detrimental to the public health, safety or welfare, or injurious to the property or improvements in such vicinity and zone in which the property is located, in that the site will be developed with a commercial building that will be similar in size an scale to other eXisting commercial structures in the area. 1918 Resolution No. P-93-06 Page 2 4. The granting of this variance does not constitute a special pri vil ege i nconsi stent with the 1 imitat ions upon other propert ies in the vicinity and zone in which such property is situated, in that the proposed project complies with the lot coverage standard for the zone. In addition, other commercial properties in the area have been developed with equivalent or greater lot coverage. 5. The granting of this variance does not allow a use or activity which is not otherwise expressly authorized by the zoning regulation governing the parcel of property in that restaurants are a permitted use in the commercial zone. 6. Granting the variance or its modification will not be incompatible with the Poway General Plan. Develooment Review 92-17 1. That the proposed development is in conformance wi th the Poway General Plan in that restaurants are permitted in the CG zone. 2. That the proposed development will not have an adverse aesthetic, health, safety, or architecturally related impact upon adjoining properties in that the surrounding land uses are residential and commercial and the site has been designed to minimize impacts. 3. That 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: City Council Decision: The City Council hereby approves Variance 93-01 and Development Review 92- 17 subject to the following conditions: Within 30 days of approval (I) 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. COMPLIANCE WITH THE FOLLOWING CONDITIONS IS REQUIRED. COMPLIANCE SHALL BE APPROVED BY THE DEPARTMENT OF PLANNING SERVICES. SITE DEVELOPMENT 1. Si te shall be developed in accordance with the approved si te pl ans on fil e 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. 1919 Resolution No. P-93-06 Page 3 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. 5. Trash receptacle shall be enclosed by a six foot high masonry wall with vi ew-obstruct i ng gates pursuant to Ci ty standards. Locat i on shall be subject to approval by the Planning Services Department. 6. All roof appurtenances, including air conditioners, shall be archi tectura lly integrated, screened from vi ew and sound buffered from adjacent properties and streets as requi red by the Planni ng Servi ces Department. 7. Bicycle storage facil ities shall be provided prior to certification of occupancy. The facilities shall be able to accommodate a minimum of two bicycles and shall be a stationary storage rack or device. 8. Disabled access shall be provided throughout the restaurant, including designated seating for wheelchair patrons. 9. 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. 10. For a new commercial development, the applicant shall pay development fees at the established rate. The following fees including but not limited to traffic mitigation, drainage, water base capacity, water authority service fees, water meter fee, sewer connection, sewer cleanout, and sewer inspection fees shall be paid prior to building permit issuance. 11. Building identification and/or addresses shall be placed on all new and existing buildings so as to be plainly visible from the street or access road; color of identification and/or addresses shall contrast with their background color. 12. In the event the City receives complaints on frequent restaurant parking spillover from the restaurant into the surrounding neighborhood, the City will monitor the s ituat i on and determi ne whether parki ng restri ct ions along Crest Road or Oak Knoll Drive are warranted. 13. The restaurant shall use non-metal trash containers and schedul e trash collection after 9 a.m. 14. This approval shall become null and void if building permits are not issued for this project within two years from the date of project approval. 1920 Reso 1 ut i on No. P- 93-06 Page 4 PARKING AND VEHICULAR ACCESS 1. The parking lot area shall be developed per the site design approved by the City Council. Disabled stalls shall be provided in accordance with City standards. 2. 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. 3. All two-way traffic aisles shall be a minimum of 25 feet wide. A minimum of 24 feet wide emergency access shall be provided, maintained free and clear at all times during construction in accordance with Safety Services Department requirements. 4. All standard-sized parking spaces shall be double striped with a minimum inside dimension of 8'6" x 18'6". Wheel stops shall be provided for each space. 5. The subject property owners shall establ ish a lease agreement with a commercial property owner in the immediate vicinity to allow the restaurant to util ize off-site parking facil ities for employees. The location of the off-site parking facilities and the lease agreement shall be approved by the Department of Planning Services prior to building permit issuance. LANDSCAPING 1. A detailed landscape and irrigation plan shall be submitted to and approved by the Pl ann i ng Servi ces Department pri or to the issuance of building permits. 2. Street trees, a minimum of 15 gallon size or larger, shall be installed in accordance with the City of Poway ordinance and shall be planted at an average of every 30 feet on i nteri or streets and 20 feet on exteri or streets. 3. An eight foot high sectionalized, solid woodcrete fence shall be installed along the top of the slope near the westerly property line. An eight foot high masonry wall shall be constructed along the northerly property line in a location approved by the Department of Planning Services. Landscaping shall be installed and maintained along the fence and wall in a landscape planter to provide a dense landscape screen. In the event the City needs to access the drainage easement along the westerly property line for ma i ntenance purposes, the property owner shall agree to remove and reconstruct the fence at his/her own costs. 4. All landscaped areas shall be maintained in a healthy and thriving condition, free from weeds, trash, and debris. 1921 Resolution No. P-93-06 Page 5 5. The developer shall landscape and maintain the non-paved portion of the public right-of-way between the northerly property line and the existing sidewal k. SIGNS Any signs proposed for this development shall be designed and approved in conformance with the Sign Ordinance. ADDITIONAL APPROVALS REOUIRED 1. The necessary permits and license shall be obtained from the County Health Department prior to the onset of business activity. If beer and wine are to be served, a permit/l icense shall al so be obtained form the State Alcoholic Beverage Control Department. 2. The applicant shall provide verification of State Board of Equalization noti fi cat i on and that appropri ate revi ews and/or approval s have been accomplished to the satisfaction of the Director of Administrative Services. COMPLIANCE WITH THE FOLLOWING CONDITIONS IS REQUIRED. COMPLIANCE SHALL BE APPROVED BY THE DEPARTMENT OF ENGINEERING SERVICES. 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 a grading plan. 3. A geological report shall be prepared by a qualified engineer or geologist and submitted at the time of application for grading plan check. 4. The final grading plan, prepared on a standard size sheet, shall be subject to review and approval by the Planning Services and Engineering Services Departments and shall be completed prior to issuance of a grading permit. 5. All new slopes shall be a minimum of 2:1 (horizontal to vertical). 6. A fi na 1 compaction report shall be submi tted and approved pri or to issuance of building permits. 7. Site grading shall be certified by the project civil engineer prior to issuance of building permits. 1922 Resolution No. P- 93-06 Page 6 8. Non-supervised nor non-engineered fill is specifically not allowed. Rock di sposa 1 areas shall be graded in compl i ance with City-approved soil s 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. 10. The tops and toes of all graded slopes shall be constructed with a five foot minimum setback from any open space area. STREETS AND SIDEWALKS 1. 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. 2. All damaged off-site public works facilities, including parkway trees, shall be repaired or replaced prior to exoneration of bonds and improvements, to the satisfaction of the Department of Engineering Services. 3. Prior to any work being performed in the public right-of-way, an encroachment permit shall be obtained from the Engineering Services department and appropriate fees paid, in addition to any other permits required. DRAINAGE AND FLOOD CONTROL 1. A drainage system capable of handling and disposing of all surface water originating within the property, and all surface waters that may flow onto the property from adjacent lands, shall be required. Said drainage system shall include any easements and structures as required by the Director of Engineering Services to properly handle the drainage. 2. Portl and cement concrete cross gutters sha 11 be i nsta 11 ed where water crosses the roadways. 3. Concentrated flows across driveways and/or sidewalks shall not be permit ted. UTILITIES 1. All proposed utilities within the project shall be installed underground. 2. Utility easements shall be provided to the specification of the serving utility companies and the Director of Engineering Services. 3. The developer shall be responsible for the relocation and undergrounding of ~xisting public utilities as required. 1923 Resolution No. P- 93-06 Page 7 4. 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. 5. Property shall be annexed to the sewer improvement area prior to acceptance of property for sewer service. 6. The applicant shall pay for a water system analysis to establish the proper size and location for the public water system. The amount will be determined by the cost of the analysis and shall be paid: 7. Within 30 days after receiving approval of the variance and development review, appl icant shall apply for a Letter of Avail abil ity (LOA) to reserve sewerage availabil ity and post with the City, a nonrefundable reservation fee equal to 20% of the appropriate sewerage connection fee in effect at the time the LOA is issued. 8. Water and sewer main 1 i nes and appurtenances that wi 11 be i nsta 11 ed at locations other than within publ ic streets shall have an easement, a minimum of 20 feet wide, dedicated to the City of Poway. Multiple parallel facil ities will require additional easement width for on-site facilities. Dedication shall be offered in the final map whereas off-site lines shall have the easement dedicated by a separate instrument recorded prior to final map approval. 9. All public utility lines (i.e., water, sewer, drainage) not located within public streets shall have an improved access over and along the respective easement, the surfacing and width of which shall be acceptable to the City Engineer. COMPLIANCE WITH THE FOLLOWING CONDITIONS IS REQUIRED. COMPLIANCE SHALL BE APPROVED BY THE DEPARTMENT OF SAFETY SERVICES. 1. Roof covering shall be fire retardant as per UBC Section 3203(e) and City of Poway Ordinance No. 64. 2. The buildings shall display their numeric address in a manner visible from Poway Road. Minimum size of the building numbers shall be six inches on the front facade of the building, street facing side. Building address shall also be di sp 1 ayed on the roof in a manner sat i sfactory to the Di rector of Safety Servi ces, and meet i ng Sheriff Department - ASTREA criteri a. 3. The building will be required to install an approved fire sprinkler system, meeting Poway Municipal Code requirements. The entire system is to be monitored by a central monitoring company. System post indicator valve shall have a tamper switch, also monitored, and shall be located by the City Fire Marshal prior to installation. Approximate location will be at the driveway entrance from Oak Knoll Drive, near the existing fire hydrant. Resolution No. P_93_tk924 Page 8 4. The fire sprinkler service is to be a separate service from the eight inch Oak Knoll Drive water main and not connected to the fire hydrant service line as implied on the drawings. 5. A 'Knox' Security Key Box shall be required for the building at a location determined by the City Fire Marshal. A "Knox" padlock shall be required for the fire sprinkler system, Post Indicator Valve. 6. A hood and duct extinguishing system shall be installed for all cooking facilities within the kitchen area. Plans to be submitted and approved, prior to installation. 7. Permanent access roadways for fire apparatus shall be designated as "Fire Lanes" with appropriate signs and curb markings. 8. Fi re Department access for use of fi re fighting equi pment shall be provided to the immediate job construction site at the start of construction and maintained at all times until construction is completed. GENERAL REOUIREMENTS AND APPROVALS Prior to occupancy, all dedications shall be made and easements granted as required above. APPROVED and ADOPTED by the City Council of the City of Poway, State of California, this 23rd day of February, 1993. ".- o~.---tl~'. ~~ Don Higginson, yor ATTEST: ~ t:( 1\)wv,,-t:. . Wahlsten, City Clerk