Covenant Regarding Real Property 2010-0143897DOC # 2010- 0143897
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RECORDING REQUEST BY:
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1
MAR 23, 2010 3:55 PM
CITY OF POWAY
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OFFICIPL RECORDS
SAN DIEG0 COUNT`r' RECORDER'S UFFICE
WHEN RECORDED MAIL TO:
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D6VID L BUTLER, COUNTY RECORDER
1
FEES: 31.00
CITY CLERK
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PAGES:
CITY OF POWAY
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X
1 111111 VIII VIII VIII IIII VIII VIII VIII IIII VIII VIII VIII VIII VIII IIII IIII
POWAY CA 92074 -0789
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(This space for Recorder's Use)
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APN: 323 - 092 -36
COVENANT REGARDING REAL PROPERTY
Kirkham Road, LLC, a Delaware Limited Liability Company, PROPERTY OWNER
( "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 14035 Kirkham Way ( "PROPERTY"
hereinafter).
In consideration of the approval of Conditional Use Permit (CUP) 09 -08 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 future
owners, encumbrances, successors, heirs, personal representatives, transferees and assigns
of the respective parties.
In the event that CUP 09 -08 expires or is rescinded by City Council at the request of the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 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.
OWNER: KIRKHAM ROAD, LLC C/O SSFT Holdings, LLC
A Delaware Limited Liability Company A Delaware Limited Liability Company
Its' Member /Manager
Dated: � l b11 o
Dated: 14z6�40
M: \p1anning \09report\cup \06 -09m loma cabrillo llc \covenant rak.docx
By.
Vincent G. Ferrer
Executive Vice President (Notarize)
CITY OF POWAY
By:
obert J. M5-Ws
Director of Development Services
16 -015
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California l
County of (/
On �� Z-0 �"
ate
personally appeared
before me, lG a r-0 V�0_i! / I, C-
f Here Insert arrit all Tnle of this OHice
ILIA KOVAR
Commission C 1730986
Notary Public • California
San Diego County
' MyComm,6ples.knlb,2o11
Place Notary Seal Above
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 State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
g /L I
SI nature /I -Signaeffe oi Notary Public
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:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer— Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
Cl Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT
OF SIGNER
in
Number of Pages:
Signer's Nal
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT,
OF SIGNER `.
Top of thumb here
02007 National Notary Association, 9350 De Sato Ave., P.O. SOx 2402• Chatsworth, CA 91313- 2402• www.NationalNotaryorg Item 45907 Reorcieo Call Toll -Free 1- 800 -B76 -682]
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Poway, County of San Diego, State of California, described as follows:
THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 5750, IN THE CITY OF POWAY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, ON MARCH 31, 1977 AS INSTRUMENT NO. 77- 118268 OF OFFICIAL RECORDS,
BEING DESCRIBED AS PARCEL 3 OF CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 3,
1999 AS INSTRUMENT NO. 99- 735323 OF OFFICIAL RECORDS, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
i
COMMENCING AT THE SOUTHWESTERLY CORNER OF PARCEL "B" OF CERTIFICATE OF
COMPLIANCE AND BOUNDARY ADJUSTMENT NO. 96 -02, RECORDED SEPTEMBER 20, 1996 AS
INSTRUMENT NO. 96- 480626 OF OFFICIAL RECORDS, SAID CORNER BEING ALSO A POINT. ON
THE NORTHERLY LINE OF PORTION OF LOT 1 OF SECTION 30 AND THE SOUTHERLY LINE OF
SECTION 19 OF TOWNSHIP 14 SOUTH, RANGE 1 WEST OF THE SAN BERNARDINO MERIDIAN,
SAID LINE BEING ALSO THE SOUTHERLY LINE OF SAID PARCEL "B "; THENCE ALONG SAID
LINE, SOUTH 88 DEGREES 15'31" EAST (RECORD NORTH 88 DEGREES 15'21" WEST, PER SAID
CERTIFICATE OF COMPLIANCE AND BOUNDARY ADJUSTMENT NO. 96 -02 AND SAID PARCEL
MAP NO. 5750; NORTH 88 DEGREES 15'43" WEST PER PARCEL MAP NO. 16103 FILED IN THE
OFFICE OF THE SAN DIEGO COUNTY RECORDER MAY 31, 1990 AS INSTRUMENT NO. 90- 296630
OF OFFICIAL RECORDS), 1487.90 FEET TO THE TRUE POINT OF BEGINNING; THENCE ALONG
SAID SOUTHERLY LINE OF SECTION 19, SOUTH 88 DEGREES 15'31" EAST (RECORD NORTH 88
DEGREES 1521" WEST PER SAID PARCEL MAP NO., 5750) 292.11 FEET TO A POINT ON THE
EASTERLY LINE OF SAID PARCEL 1 OF PARCEL MAP NO. 5750; THENCE ALONG SAID EASTERLY
LINE, COMMON WITH PARCEL 2 OF SAID PARCEL MAP NO. 5750, SOUTH 01 DEGREES 02'08"
WEST (RECORD NORTH 01 DEGREES 03'00" EAST PER SAID PARCEL MAP NO. 5750) 381.06
FEET, THENCE SOUTH 17 DEGREES 45'67" EAST 504.77 FEET (RECORD NORTH 17 DEGREES
45'11" WEST 504.95 FEET PER SKID PARCEL MAP NO. 5750) TO THE MOST EASTERLY CORNER
OF SAID PARCEL 1; THENCE LEAV�NG SAID EASTERLY LINE AND ALONG THE SOUTHERLY LINE
OF SAID PARCEL 1, SOUTH 72 DEGREES 12'59" WEST 123.95 FEET (RECORD NORTH 72
DEGREES 14'49" EAST, 124.03 FEET PER SAID PARCEL MAP NO. 5750); THENCE SOUTH 53
DEGREES 30'53" WEST 147.92 FEET ( RECORD NORTH 53 DEGREES 32'02" EAST 147.99 FEET
PER SAID PARCEL MAP NO. 5750; NORTH 53 DEGREES 30'42" EAST PER SAID PARCEL MAP NO.
16103) TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 1 OF PARCEL MAP NO. 5750,
COMMON WITH PARCEL 1 OF SAID PARCEL MAP NO. 16103; THENCE ALONG THE LINE
COMMON TO SAID PARCEL 1 OF SAID PARCEL MAP NO. 5750 AND PARCEL 1 OF SAID PARCEL
MAP NO. 16103, NORTH 23 DEGREES 36'32" WEST 130.37 FEET (RECORD NORTH 23 DEGREES
33'11" WEST 130.35 FEET PER SAID PARCEL MAP NO. 5750, NORTH 23 DEGREES 36'44" WEST
PER SAID PARCEL MAP NO. 16108; THENCE SOUTH 81 DEGREES 05'25" WEST 147.06 FEET
(RECORD NORTH 81 DEGREES 1149" EAST 147.00 FEET PER SAID PARCEL MAP NO. 5750,
NORTH 81 DEGREES 05'14" EAST PER SAID PARCEL MAP NO. 16103) TO THE MOST
SOUTHWESTERLY CORNER OF SAID PARCEL 1 OF PARCEL MAP NO. 5750, COMMON WITH SAID
PARCEL I OF PARCEL MAP NO. 16103; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 1
OF PARCEL MAP NO. 5750, COMMON WITH PARCELS 1 AND 2 OF SAID PARCEL MAP NO. 16103
NORTH 00 DEGREES 1720" WEST (RECORD NORTH 00 DEGREES 1735" WEST PER SAID
PARCEL MAP NO. 16103; NORTH 00 DEGREES 16'28" WEST 899.43 FEET PER SAID PARCEL MAP
NO, 5750, NORTH 00 DEGREES 17'33" WEST PER SAID PARCEL MAP NO. 16103) 899.75 FEET
TO THE TRUE POINT OF BEGINNING.
APN: 323-092 -36 -00
EXHIBIT B
RESOLUTION NO. P -10 -03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 09 -08
ASSESSOR'S PARCEL NUMBER 323 - 092 -36
WHEREAS, McMillin Commercial Brokerage has submitted a request for
approval of a Conditional Use Permit (CUP) to establish a commercial, major auto
repair facility within Suites 105 and 106 of the existing multi- tenant building at 14035
Kirkham Way, in the Light Industrial /Outdoor Storage (LI /S) Land Use Designation area
of the South Poway Specific Plan; and
WHEREAS, on January 5, 2010, the City Council held a duly advertised public
hearing to solicit comments 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: This project is Categorically Exempt as a Class 1 Categorical Exemption
from the California Environmental Quality Act (CEQA), pursuant to Section 15301 of the
CEQA Guidelines, in that the project involves a change in use of an existing facility.
_Section..2: ___ The findings, in accordance with Section 17.48.070 of the Poway
Municipal Code (PMC), for CUP 09 -08 to establish a commercial, major auto repair
facility in the LI /S area of the PC zone, are as follows:
A. The location, size, design, and operating characteristics of the proposed use are
in accord with the title and purpose of Chapter 17.48 PMC (Conditional Use
Permit Regulations), the South Poway Specific Plan (SPSP), the City General
Plan, and the development policies and standards of the City in that the subject
use is allowed with a Conditional Use Permit. The facility has been designed and
sited such that it will be compatible with the surrounding development.
B. 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, buildings, structures, or natural resources, in that the facility is
zoned for the use and has been designed to comply with City development
standards, and the site has adequate parking to accommodate the use and other
uses on the site.
C. The proposed use is in harmony with the scale, bulk, coverage, and density of,
and is consistent with, adjacent uses in that adequate parking will be provided
onsite.
D. There are adequate public facilities, services, and utilities available at the subject
site to serve the proposed use.
Resolution No. P -10 -03
Page 2
E. There will not be a harmful effect upon the desirable surrounding property
characteristics in that adequate parking will be provided onsite.
F. The generation of traffic will not adversely impact the capacity and physical
character of the surrounding streets in that the proposed use provides adequate
vehicle circulation onsite.
G. There will not be significant harmful effects upon environmental quality and
natural resources in that the site has been previously graded and contains no
natural habitat resources.
Section 3: The City Council hereby approves CUP 09 -08 to establish a commercial,
major automobile repair facility within Suites 105 and 106 of the existing building located
at 14035 Kirkham Way, in the LI /S area of the PC zone, as shown on plans dated
October 22, 2009, subject to the following conditions:
A. Approval of this Conditional Use Permit shall apply only to the subject project and
shall not waive compliance with all other Sections of the Zoning Ordinance and
all other applicable City Ordinances in effect at the time of Building Permit
issuance.
_ B..._ 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.
C. All Conditions of Approval established by Development Review 03 -06 and
Conditional Use Permit 04 -05 continue to be in effect.
D. Within 30 days of the date of this approval, the applicant shall submit in writing
that all conditions of approval have been read and understood, and a deed
covenant with these conditions of approval shall be recorded on the property.
Resolution No. P -10 -03
Page 3
E. 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.
F. The terms and conditions of Conditional Use Permit 09 -08 shall be binding upon
the permittee and all persons, firms and corporations having an interest in the
property subject to these permits, and the heirs, executors, administrators,
successors, and assigns of each of them, including municipal corporations,
public agencies and districts.
G. Conditional Use Permit 09 -08 shall be subject to annual review, as determined
by the Director of Development Services, for compliance with the conditions of
approval and to address concerns that may have occurred during the past year.
H. Building permits are required for all new tenant improvements associated with
the facility. All requirements deemed necessary by the Building Division and Fire
Department as part of the building plan review shall be implemented to the
satisfaction of the City. Preliminary Fire Department requirements are as follows:
1. A 'Knox' Security Key Box shall be required for the building at a location
determined by the City Fire Marshal.
2. The fire sprinkler and fire alarm systems shall be completely monitored by
a U.L. listed central station alarm company or proprietary remote station.
3. Permanent access roadways for fire apparatus shall be designated as
'Fire Lanes', with appropriate signs and curb markings. Fire Department
apparatus access shall not be less than 20 feet of unobstructed width, with
an adequate roadway /turning radius having a minimum of 13'6" of vertical
clearance.
4. Material Safety Data Sheets shall be required for all hazardous and /or
toxic substances used in the suites.
5. An Emergency Contingency Plan and Hazardous Materials Disclosure
shall be filed with the County of San Diego Department of Health; with
copies provided to the Fire Department.
6. N.F.P.A. Standard 704, Hazardous Materials Labeling, shall be provided
as necessary throughout the building.
Signs are subject to a separate Planning Division permitting process, and may
additionally require subsequent Building Permits. The applicant shall submit a
separate Sign Permit application for signs.
Resolution No. P -10 -03
Page 4
J. No outdoor vehicle repair work, or materials/equipment/parts storage, is
approved under this CUP. Any proposal for outdoor storage of materials/
equipment/parts is subject to additional review, must be authorized by a CUP
amendment, shall be conducted within a fully screened area, and in compliance
with all other applicable City standards. The temporary storage of vehicles that
are waiting to be repaired or picked up may occur in designated parking spaces
onsite. At no time shall more than 13 parking spaces be used for temporary
vehicle storage, which is the amount of surplus parking spaces available based
on the current mix of uses on the site. Vehicle storage shall be conducted in
parking spaces in the rear of the site, along the south side of the buildings to
screen storage vehicles from public view. An amendment to this CUP involving
the elimination of outdoor vehicle storage may be approved by the Director of
Development Services.
K. Should the auto repair work be expanded to include engine repair, the applicant
shall comply with all applicable Building and Fire Code requirements.
L. The site shall be kept in an orderly and well maintained condition at all times.
Section 4: The approval of CUP 09 -08 shall expire on January 5, 2012, at 5:00 p.m.
unless, prior to that time, a Building Permit has been issued and /or establishment of the
_use ,on _the property in reliance on this CUP approval has commenced prior to its
expiration.
PASSED, ADOPTED and APPROVED by the City Council of the City of Poway,
State of California, this 5th day of January 2010.
Don Higginson, Mayor
ATTEST:
Lind . Tr yan, MMC, City Clerk
Resolution No. P -10 -03
Page 5
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, Linda A. Troyan, MMC, City Clerk of the City of Poway, do hereby certify, under
the penalty of perjury, that the foregoing Resolution No. P -10 -03 was duly adopted by
the City Council at a meeting of said City Council held on the 5th day of January 2010,
and that it was so adopted by the following vote:
AYES: BOYACK, CUNNINGHAM, REXFORD, KRUSE, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
A2;�
�Troyan, MMC, City Clerk
�/ City of