Covenant Regarding Real Property 2008-0113384
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RECORDING REQUEST BY )
) MAR 04, 2008 419 PM
CITY OF POWAY )
) OFFIU.i-l,L FiECURD':1
WHEN RECORDED MAIL TO' l X5 '~,."JI ["EI,O C11Ui'lT', FIECOm'EF,"i OFFICE
CiRECiOFi'l ,I SMITH UJUr'JT'1 REUJR[IEF:
FEES. 4:}[I[1
CITY CLERK ) PAGES: 12
CITY OF POWAY ) \j(
POBOX 789 ) 1I111111111111111111111111111111111111111111111111111111111111111111111111111111
POWAY CA 92074-0789 ) t ~
(This space for Recorder's Use)
APN: 317-101-42 and 43
COVENANT REGARDING REAL PROPERTY
Riley J Lively, Trustee, Onie 0 Lively, Trustee, and John S. Lively, PROPERTY OWNERS
("OWNERS" hereinafter) are the owners of real property described in Exhibit A which is attached
hereto and made a part hereof and which is commoniy known as 13266 Poway Road
("PROPERTY" hereinafter).
In consideration of the approval of MCUP 95-02M2, by the City of Poway ("CITY"
hereinafter), OWNERS hereby agree 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, encumbrancers, successors, heirs, personal representatives, transferees and
assigns of the respective parties;
In the event that MCUP95-02M2 expires or is rescinded by City Council at the request of
the OWNERS, CITY shall expunge this Covenant from the record title of the PROPERTY
In the event of litigation to enforce the provisions ofthis Covenant, the prevailing party shall
be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other
party
OWNERS
Dated: 2/" / IJ ~ By
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Dated: 2/11 /()~ By
Dated: 2l, /t??f
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Dated: ~/g/o8 By'
velopment Services
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
C<'~...&"'~.a'>~..e('vC("'...a::>..('5('.&"~~~..G<""'(x>-.&"'~..c<'"~~~~...c<'..5<"'~~vC<"...&:'.c<'...c<'~~~~-C<
State of California
County of 51A,V) J2-, 1(90
On J / /I Lf 'd' before me, Pu M 'p
personally appeared
On i f'., (). L~v e I 'I
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) .jsfare subscribed to the
within instrument and acknowledged to me that
J - - - - - ~ ~ - - - - t I:le/sfle/they executed the same in Ais/Ret/their authorized
e =~.1000 ?apacity(ies), and that by llisIIler/their signature(s) on the
, NalaIy PIlbIIC . CcIIICilI'*I Instrument the person(s), or the entity upon behalf of
cc::..llIego ecu::.2111~ which the person(s) acted, executed the instrument.
- - - , - - ~~ - II I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
Signatur
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
o Individual 0 Individual
o Corporate Officer - Title(s): 0 Corporate Officer - Title(s):
o Partner - 0 Limited 0 General 0 Partner - 0 Limited 0 General
AIGHTTHUMBPRINT
o Attorney in Fact 0 Attorney in Fact OF SIGNER
o Trustee Top 01 thumb here 0 Trustee Top ct thumb here
o Guardian or Conservator 0 Guardian or Conservator
o Other' 0 Other'
Signer Is Representing: Signer Is Representing:
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e2007 National Notary Association. 9350 De Soto Ave., P.O. Box 2402 .Chatsworth, CA 91313 2402. www.NationaINotary.org Item #5907 Reorder: Call Toll-Free 1-800:876-6827
4If EXHIBIT A .'
Page 1 DESCRIPTION
, , Order No, 48004079
,
, ALL THAT PORTION OF THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION
/! 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO,MERIDIAN, IN THE COUNTY OF
\
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY,
DESCRIBED AS FOLLOWS
COMMENCING AT THE SOUTHEAST CORNER OF SAID SOUTHEAST QUARTER OF THE NORTHWEST
QUARTER OF SECTION 13; THENCE ALONG THE SOUTHERLY LINE OF SAID SOUTHEAST QUARTER
OF THE NORTHWEST QUARTER, NORTH 89' 08' 3011 WEST, 459 50 FEET TO THE SOUTHWEST
CORNER OF LAND DESCRIBED IN DEED TO RAYMOND HAMPE, RECORDED AUGUST 25, 1953, IN
BOOK 4965, PAGE 184 OF OFFICIAL RECORDS AND THE TRUE POINT OF BEGINNING; THENCE
ALONG THE WESTERLY LINE OF SAID HAMPE'S LAND, NORTH 01' 54 ' 0011 EAST, 489 33 FEET
TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN DEED TO ERNEST H PEACOCK, ET AL,
RECORDED SEPTEMBER 2, 1953, IN BOOK 4974, PAGE 78 OF OFFICIAL RECORDS; THENCE
ALONG THE WESTERLY LINE OF SAID PEACOCK'S LAND NORTH 01' 54' 00'1.1 EAST, 315.85
FEET, MORE OR LESS, TO AN ANGLE POINT IN THE SOUTHERLY BOUNDARY OF LAND
DESCRIBED IN DEED TO ERNEST H. PEACOCK, ET AL, RECORDED FEBRUARY 2, 1954, IN
BOOK 5128, PAGE 345 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHERLY LINE OF SAID
PEACOCK'S LAND, NORTH 88' 59' oon WEST, 247.54 FEET TO THE SOUTHWEST CORNER OF
SAID LAND; THENCE SOUTHWESTERLY IN A STRAIGHT LINE TO THE NORTHWEST CORNER OF
LAND:DESCRIBED IN DEED TO JOHN HENRY CAUDELL, ET UX, RECORDED FEBRUARY 15, 1954,
IN BOOK 5141, PAGE 464 OFR 0FFICIAL RECORDS; THENCE ALONG THE NORTHERLY AND
EASTERLY LINES OF SAID CAUDELL'S LAND THE FOLLOWING COURSES AND DISTANCES:
SOUTH 89' 08' 3011 EAST, 244 12 FEET; AND SOUTH 03' 23' 0011 WEST, 320 32 FEET TO
THE SOUTHERLY LINE OF SAID SOUTHEAST QUARTER OF THE NORTHWEST QUARTER; THENCE
ALONG SAID SOUTHERLY LINE SOUTH 89' 08 ' 30 II EAST I 232 50 FEET TO THE TRUE POINT
OF BEGINNING
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE FOLLOWING DESCRIBED
LINE:
COMMENCING AT THE SOUTHEAST CORNER OF SAID SOUTHEAST QUARTER OF THE NORTHWEST
QUARTER OF SAID SECTION 13, THENCE ALONG THE SOUTHERLY LINE OF SAID SOUTHEAST
QUARTER .OF THE NORTHWEST QUARTER, NORTH 890 08' 30" ,WEST, 459 50 FEET TO THE
SOUTHWEST CORNER OF LAND DESCRIBED IN DEED TO RAYMOND HAMPE, RECORDED AUGUST 25,
1953, IN BOOK 4965, PAGE l840F OFFICIAL RECORDS; THENCE ALONG THE WESTERLY LINE
OF SAID HAMPE'S LAND, NORTH OlO 54' 00" EAST 388 00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE NORTH 890 08' 30n WEST, 437 45 FEET TO A POINT ON THE
NORTHWESTERLY LINE OF LAND DESCRIBED IN DEED TO RILEY J LIVELY f ET UX, RECORDED
NOVEMBER 7 I 1966, AS FILE NO. 177168 OF OFFICIAL RECORDS; SAID POINT BEING
DISTANT THEREON NORTH 26' 09' 3211 EAST, 75 19 FEET FROM THE NORTHWEST CORNER OF
SAID DISTANT THEREON NORTH 260 09' 3211 EAST, 75 19 FEET FROM THE NORTHWEST CORNER
OF SAID CAUDELL' 8 LAND.
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RESOLUTION NO P 08-03
A. RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CA.L1FORNIA
APPROVING MINOR CONDITIONAL USE PERMIT 95-02M(2)
ASSESSOR'S PARCEL NUMBER 317-101-42 & 43
WHEREAS, Minor Conditional Use Perrnit (MCUP) 95-02M(2), subrnitted by John
Lively, Applicant, requests a modification to a Minor Conditional Use Permit to construct a
46-space parking lot on the west side of the Lively Center located at 13266 Poway Road,
in the Town Center zone, and
WHEREAS, on February 5, 2008, the City Council held a duly advertised public
hearing to solicit comrnents from the public, both pro and con, relative to this application.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as
follows,
Section 1 The City Council .finds that Minor Conditional Use Perrnit 95-02M(2) is
Categorically Exernpt as a Class 32 Categorical Exernption, pursuant to Section 15332 of
the CEQA Guidelines (In-fill development), in that the project is less than five acres in size,
contains no rare or endangered plant or anirnal species, is consistent with General Plan
policies, and will not result in any significant noise, air or water quality impacts
Section 2: The findings, in accordance with Section 1748070 of the Poway Municipal
Code for MCUP 95-02M(2) to rnodify a Minor Conditional Use Permit to allow the
construction of a 46-space parking lot in the Lively Center at 13266 Poway Road, in the
Town Center zone, are rnadeas follows
A. The proposed parking lot,expansion area will be used during the operating hours of
the Poway Acaderny of Hair Design, and will othervvise comply with all of the
relevant codes and standards of the City of Poway The proposed parking lot use is
considered to bean allowable use in the Town Center zone, with the approval of a
Minor Conditional Use Perrnit. Therefore, the proposed location, size, design and
operating characteristics of the proposed use are in accord with the title and
purpose of Section 17 48~070 of the Poway Municipal Code, the purpose of the
zone in which the site is located, the City General Plan, the Poway Road Specific
Plan, and the developrnent policies and standards of the City; and
B The location and design ofthe proposed parking lot will not create a negative visual
irnpact on surrounding properties since it will rernove a blighted condition, involve
only minor grading, will be closed each evening, and a rnajority of the parking
spaces will not .face the adjacent single farnily hornes~ Therefore, the location, size,
design and operating characteristics of the proposed use will be cornpatible with
and will not adversely. affect or be rnaterially dEitrirnental to adjacent uses, residents,
buildings, structures, or natural resources; and
C The parking lot expansion is located in a srnall, undeveloped corner of the Lively
Center and will serve as overflow parking to the existing main parking lot, thus
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Resolution No P-08-03
Page 2
requiring onlY minor grading and paving Therefore, the harrnony in scale, bulk,
coverage and density of the project is consistent with adjacent uses; and
0 There are public facilities, services and utilities available;. and
E~ The proposed parking lot will be located within an existing shopping center and will
provide additional parking for an existing use, Therefore, there will not be a harmful
effect upon desirable neighborhood characteristics, and
F The project will not increase traffic Therefore, the proposed parking lot will not
adversely irnpact the Capacity and physical character of surrounding streets and/or
the circulation elernelit ofthe General Plan, and
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G. The project is located in a large shopping center (characteristic of its neighborhqod),
which provides adequate parking and on-site circulation The proposed parking lot
expansion enhances parking opportunities within the Center Therefore, the site is
suitable for the type and intensity of use or development that is proposed; and
H~ There are no identified sensitive or endangered plants or anirnal species on site,
The project is designed io incorporate Standard Urban Storrnwater Management
Program requirernents to protect water Therefore, there will not be significant
harrnful effects upon enviroilrnental quality and natural resources, and
I There are no other relevant negative irnpacts of the proposed use that cannot be
rnitigated; and
J The project will pave an undeveloped corner of the property to create more on-site
parking spaces The proposed use is an allowable use in the Town Center zone
Therefore, the irnpacts, as described above, and the proposed location. size, design
and operating characteristics of the proposed use ,and the conditions under which it
would be operated or rnaintained will not be detrimental to the public health, safety
or welfare, or rnateri~;t1ly ,injurious to properties or irnprovements in the vicinity nor be
contrary to the adopted General Plan, and
K~ That the proposed conditional use will comply with each of the applicable provisions
of Section 1748070 of the Poway MuniCipal Code
Section 3 The City Council hereby approves MCUP 95-02M(2) to construct a 46-space
overflow parking lot in the Lively Center at 13266 PbwayHbad, in the Town Center zone,
as shown on the plans dated July 17, 2007, subject tothefollowing conditions
A. Approval of this MCUP request shall apply only to the subject project and shall not
waive cornpliance with all sections of the Zoning Ordinance and all other applicable
City Ordinances in effect at the time of Building Perrnit issuance
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Resolution No~ P-08-03
Page 3
B Within 30 days of the date'of this approval: (1) the applicant shall subrnit in writing
that all conditions of approval have been read and understood; and (2) the property
owners shall execute a Covenant Regarding Real Property
C The use conditionally granted by this approval shall not be conducted in such a
rnanner as to interfere with the reasonable use and enjoyment of surrounding
commercial uses
0 The conditions of MCUP 95-02M(2) shall rernain in effect for the life of the subject
property and shall run with the land and be binding upon future owners, successors,
heirs, and transferees of the current property owner
E. MCUP 95-02M(2) rnay be subject to annual review as deterrnined by the Director of
Development Services for compliance with the conditions of approval and to
address concerns that rnay have been raised during the prior year
F The conditions of MCUP 95-02, as contained in Resolution P-95-21, shall remain in
effect and shall be cornplied with~
G The conditions of MCUP 95-02M, as contained in Resolution P-01-01 shall rernain
iri effect and shall be cornplied with,
H~ Prior to issuance of a Grading Perrnit, the applicant shall cornplete the following:
(Enqineerinq)
1 A grading plan for paving of the lot prepared on a City of Poway standard
rnylar at a scale of 1" = 20', shall be subrnitted along with a Grading Permit
application and applicable fees to the Development Services Departrnent -
Engineering Division for review and approval. A grading plan submittal
checklist is available at the Engineering Division front counter As a
rninirnum, the grading plan shall show the following:
a. All new slopes with a rnaximurn 2~ 1 (horizontal to vertical) slope Tops
and toes of graded slopes shall be shown with a rninirnurn five-foot
setback frorn open space areas and property lines Buildings shall be
located at least five feet frorn tops and toes of slopes, unless waived
by the Planning Division and/or Engineering Division prior to issuance
of a Grading Perrnit.
b Paving of the parking lot shall conforrn to the standards set forth in
Section 12~20 080 of the Poway Municipal Code
c A separate erosion control plan for prevention of sedirnent run-off
during construction,
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Resolution No P-08-03
Page 4
d, All utiiities (proposed and existing), together with their appurtenances
and associated easements Encroachrnents are not permitted upon
any easement without an approved Encroachrnent Agreement/Permit.
e Locations of all utility boxes, clearly identified in coordination with the
respective utility companies, and approved by the City prior to any
installation work.
f A soils/geological report shall be prepared by an engineer licensed by
the State .of California to perforrn such work, and shall be subrnitted
with the grading plans,
g A drainage study using the 100-year storm frequency criteria shall be
subrnitted with the grading plan, The drainage systern shall be
capable of handling and disposing all surface water within the project
site and all surface water flowing onto the project site frorn adjacent
lands Said systern shall include all easernents required to properly
handle the drainage Concentrated flows across driveways are not
permitted
2~ The drainage design on the grading plans-shall dernonstrate cornpliancewith
the City's Standard Urban Storrnwater Mitigation Prograrn (SUSMP)
Ordinance
3 The applicant shall pay all applicable engineering, plan checking, perrnit, and
inspection fees
4 Grading securities in the form of a performance bond and a cash deposit, or
a letter of credit shall be posted with the City prior to grading plan approval.
A minirnurn of $2,000 cash security deposit is required
5 The applicant shall attend a pre-construction rneeting, at which time they
shall present an Action Plan that identifies rneasures to be implemented
during construction to address erosion, sedirnent, and pollutant control.
Cornpliance for erosion control can ,be provided using one or more of the
following guidelines~
a, Provide an onsite de-silting basin'with a volurne based on 3,600 cubic
feet.per tributary acre drained,
b Cover all flat areas with approved rnulch,
c, Install an earthen or gravel bag berrn that retains three inches of water
over all flat areas prior to discharge, effectively creating a de-silting
basin frorn the pad~
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Resolution No P-08-03
Page 5
6 Erosion control, including, but notlirnited to, de-silting basins, shall be
installed and maintained by the developer throughout the duration of the
project. The developer shall rnaintain all erosion control devices throughout
their intended Iife~
7 Construction staking is to be installed and inspected by the Engineering
Inspector prior to any clearing, grubbing, or grading As a rninirnum, all
protected areas as shown on the project plans are to be staked by a licensed
surveyor and delineated with lathe and ribbon~ A written certification frorn
the engineer of work or a licensed surveyor shall be provided to the
Engineering Inspector stating that all protected areas are staked In
accordance with the approved project plans,
8 The site shall be developed in accordance with the approved site plans and
conditions of approval on file in the Development Services Departrnent and
the conditions' contained herein~ Grading shall be in accordance with the City
Grading Ordinance, the approved grading plan, the approved soils report,
and grading r'iractices acceptable to the City
9 Subrnit landscape and irrigation plans to the Planning Division for review and
approval consistent with the City of Po'way Guide to Landscape
Requirements to the satiSfaction of the Director of Developrnent Services
The landscape. and irrigation plan shall identify plant species, sizes, and
automatic irrigation for all areas to be planted A plan check review fee is
required aUhe tirne of initial subrnittal of the plans,
10 A Right-of-Way Permit shall be obtained frorn the Engineering Division of the
Development Services Department for any work to be done in public street
rights-of-way or City-held easements
11 The project,applicant shall execute and record a maintenance agreernent for
rnaintenance of the Best Management Practices devices as required by the
SUSMP
I Prior to establishing use of the site, the applicant shall corn ply with the following:
(Engineering)
1 Paving of the lot is to be completed and meet the approval of the City
Inspector, and shall include submittal ofthefollowing:
a, A certification of line and grade for the lot, prepared by the engineer of
work,
b A final cornpaction report for review and approval by the City
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Resolution No P-08-03
Page 6
2. No private improvements shall be placed or constructed within public street
rights-of-way or City-held easements unless anyone of the following is
satisfied
a~ An Encroachment Permit has been issued by the City for the
improvements; or
'b An Encroachrnent Rernoval Agreernent has been executed by the
developer/owner and subsequently approved by the City; or
c~ Approval of grading or irnprovernent plans, on which a Right-of-Way
Perrnit has been issued for the private irnprovernents to be
constructed~
3 Paving, drainage facilities, and utilities shall be constructed, cornpleted, and
inspected by the Engineering Inspector
4 The applicant shall repair any and all, darnag~s to the streets caused by
construction activity from this project to the satisfaction of the City Engineer
5 Record drawings, signed by the engineer of work, shall be subrnitted to
Developrnent Services prior to a request of occupancy, per Section
16 52~ 130B of the Grading Ordinance Record drawings shall be submitted
in a rnanner to allow the City adequate tirne for review and approval prior to
issuance of occupancy and release of grading securities
6 Parking lot lighting for the new parking lot shall be low-pressure sodium and
shielded to protect adjoining residents frorn light glare, and placed on tirners
and light motion sensors to preclude their use past 11'00 p,m~ or the close of
the beauty college, whichever comes first. The applicant shall subrnit a
lighting plan for the parking lot for approval by the Director of Developrnent
Services
7 The applicant shall provide a striping plan that adequately portrays the
location and drive path to access the overflow parking lot frorn the main
shopping center parking lot.
8 The applicant shall construct a traffic calming device near the entrance to the
parking lot subject to the approval of the City Engineer
9 All utilities associated with the lighting of the new parking lot rnust be placed
underground~
10 A landscape plan shall be submitted, and approved by the City, that will
provide a screen of the west facing open storage area of the rnini-storage
facility frorn the single-farnily homes to the west.
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Resolution No P-OS-03
Page 7
11 Concrete block retaining walls shall not exceed' six feet in height,
12- The applicant shall comply with the latest adopted Uniforrn Building Code,
National Electric Code,and all other applicable codes and ordinances in
effect at the tirne dfelectrical/Building Permit issuance
13~ The site shall be developed in accordance with the approved plan on file in
the Developrnent Services Departrnent and the conditions contained herein.
A final inspection from the appropriate City Departments will be required
(Fire)
14 Perrnanent access roadways for fire apparatus shall be designated as 'Fire
Lanes' with appropriate signs and curb rnarkings
15 Turnaround capability for fire apparatus shall be provided at the north end of
the parking lot
16 The parking area shall be accessible to Fire Departrnent apparatus by way of
access roadways with all-weather driving surface of not less than 20 feet of
unobstructed width, with adequate roadway turning radius capable of
supporting theirnposed loads of fire appwatus having a minimurn of 13'6" of
vertical c1eanj~nce ~ This 20-foot access width is the rninimum required for
Fire Department ernergency access. In most cases, City Engineering
standards will be rnore restricting, The rnore restrictive standard shall apply,
The City Engineer, pursuant to the City of Poway Municipal Code, shall
approve the road surface type~
J Upon establishrnentoF the use in reliance upon this Minor Conditional Use Permit,
the following conditions shall apply~
1 The hours of operation of the parking lot shall be consistent with those of the
Poway Acadernyof Hair Design as specified in Resolution P-07-24
2, The new parking lot shall be closed and gated each evening with the close of
the Poway Academy of Hair Design~,
3 In the event of a large rainstorrn that could potentially cause drainage waters
to overflow into the proposed parking lot, the property manager or a school
ernployee shall close and gate the parking loUo preclude its use.
4 The parking lot 'lights shall be turned off by 11'00 p,rn. Monday through
Friday and by 5 30 p.m~ on Saturday There shall be no lights on Sunday
Minor, temporary modifications to these .hours will be considered for special
events only and rnay be approved by the Director of Development Services
upon submittal of a written request
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Resolution No P-D8-03
Page 8
Section 4 The approlial of MCUP 95-02M(2) shall expire on February 5, 2010, at
5:00 p,rn, unless, prior to that tirne, a Grading Permit has been issued and construction on
the property in reliance on the MCUP approval has comrnenced prior to its expiration~
Section 5 Pursuant to Government Code Section 66020, the 90-day approval period in
which the applicant may protest the irnposition of any fees, dedications, reservations, or
exactions irnposed pursuant to this approval shall begin on February 5, 2008
PASSED, ADOPTED and APPROVED by the City Council of the City of Poway,
State of California, this 5th day of February 2008
Bob Ernery, Deputy May
ATTEST
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L Di ne Shea, City Clerk '
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Resolution No. P-08-03
Page 9
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, L. Diane Shea, City Clerk of the City of Poway, do hereby certify under penalty of
perjury that the foregoing .Resolution No~ P-08~03 was duly adopted by the City Council at
a meeting of said City Council held on the 5th day of February 2008, and that it was so
adopted by the following vote,
AYES~ BOYACK, EMERY, HIGGINSON, REXFORD
NOES NONE
ABSENT CAFAGNA
DISQUALIFIED NONE
~e~.~~~
City of Poway