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Covenant Regarding Real Property 2010-0257158a O C # 201 0 - 0257158 RECORDING REQUEST BY: ) IIIIIIII III IIIII IIIII IIIII IIIII IIIII IIIiI 11111111111111111111 IIII IN CITY of PowAY j MAY 21, 2010 3:16 PM OFFICIAL RECORDS WHEN RECORDED MAIL TO: ). SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER Q CITY CLERK ) FEES: 46.00 0 CITY OF POWAY ) PAGES: 13 1//�� :J�_N� POWAYXCA992074 -0789 j 9�� O IIIIIII�IIII�IIIIIII�IIIII�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII APN: 314 - 370 -39 COVENANT REGARDING REAL PROPERTY Ner Tamid North County Conservative Synagogue, 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 as 15318 Pomerado Road ( "PROPERTY hereinafter). In consideration of the approval of CUP 02 -11M 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 In the event that CUP 02 -11M expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 02 -11M, upon the request of the OWNER the City shall expunge this Covenant from the record title of the PROPERTY and CUP 02 -11M 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. OWNER: Ner Tamid North County Conservative Synagogue Dated: �(I G is v -� (Notarize) R� /.v 4 ✓. it%�� w ..y ra Print Name Its: ,` CITY P W Y Dated: 7 IZ `l7 By: ert J. Mani Ise or tDfvelopment Services M: \planning \10report\cup \CUP 02 -11 M\cov.docx 10 -oqo CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT 9011- State of California 1� 1 County of / Sot, � On 2 � before me, Date / Hen personally appeared -2 /✓`✓I (v1ASSOUD SHOAEE ;'J` Commission #.1666785 ® Notary Public - California San Diego County My Comm. Expires May 14, 201 OF 4.: Place Notary Seal Above ,vlAI.- I IS. who proved to me on the basis of satisfactory evidence to be the personal whose namely) is/cjr� subscribed to the within instrument and acknowledged to me that he /sheHhey executed the same in his/herlthae r authorized capacity(bt), and that by his /he4heir signature(tO on the instrument the person(, or the entity upon behalf of which the person(A 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. Signature / , I ryJ�y� PQ `— Si�gnatur .cf otary 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: itzZ rig 1/10 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General _ ❑ Partner — ❑ Limited ❑ General _ ❑ Attorney in Fact - ❑ Attorney in Fact El Trustee Top of thumb here ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer is Representing: 02007 National Notary Association, 9350 De Soto Ave_ P.O.Box 24W- Cftatsvorth, CA 91313- 2402,w NatlonalNotarycrg Item #5907 Reorder: Call Toll -Free 1- 800 - 876-6627 EXHIBIT A PARCEL A: 9012 , PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN ON PAGE 19201 OF PARCEL MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 3, 2003. PARCEL B: AN EASEMENT FOR INGRESS AND EGRESS TOGETHER WITH THE RIGHT TO CONSTRUCT SURFACE IMPROVEMENTS AND PLACE UTILITIES OVER, UNDER, ALONG AND ACROSS THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 4335, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, DECEMBER 26, 1975, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL 1; LINE OF SAID PARCEL 1, SOUTH 88 °12'13" EAST (RECORD FEET; THENCE LEAVING THE SOUTHERLY LINE OF SAID PARS 279.67 FEET TO A POINT ON THE WESTERLY LINE OF SAID WESTERLY LINE OF SAID PARCEL 1, SOUTH 1 006'25" WEST 100.00 FEET TO THE POINT OF BEGINNING. PARCEL C: THENCE ALONG THE SOUTHERLY SOUTH 88 013'24" EAST) 260.00 "-EL 1, NORTH 67 015'21" WEST, PARCEL 1; THENCE ALONG THE (RECORD SOUTH 1 002'39" WEST), CERTAIN ACCESS AND UTILITY EASEMENTS AND INCIDENTAL PURPOSES THERETO, AS GRANTED AND SET FORTH IN THAT CERTAIN EASEMENT AGREEMENT RECORDED SEPTEMBER 11, 2002 AS FILE NO. 2002 - 0774687 AND MAY 15, 2003 AS FILE NO. 2003- 0569975, BOTH OF OFFICIAL RECORDS AND SUBJECT TO ANY PROVISIONS THEREIN CONTAINED, OVER AND ACROSS PARCEL 1, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN ON PAGE 19201 OF PARCEL MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 3, 2003. EXHIBIT B RESOLUTION NO. P -10 -13 A RESOLUTION OF THE CITY COUNCIL 9013 OF THE CITY OF POWAY, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT 02 -11M ASSESSOR PARCEL NUMBER 314 - 370 -39 WHEREAS, Conditional Use Permit 02 -11M was submitted by Ner Tamid Synagogue, a proposal to modify CUP 02 -11 to expand the scope of the private pre- school operating on the Ner Tamid Synagogue property to include classes for elementary age students; additionally, the maximum enrollment at the school would be increased from 50 to 85 students. The school is located at 15318 Pomerado Road, within the Rural Residential C zone; and WHEREAS, on October 29, 2002, the City Council approved Resolution P -02 -63 approving the phased construction of a 17,000- square -foot sanctuary, office, classroom building, and a 12,000- square -foot multi - purpose building for the establishment of a synagogue, a pre - school and a religious school at 15318 Pomerado Road, and use of modular buildings on the site during the initial development phases of the project; and WHEREAS, on April 6, 2010, a duly advertised public hearing was held 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: The City Council has considered the Environmental Initial Study (EIS) and Negative Declaration (ND). The subject EIS and ND documentation are fully incorporated herein by this reference. The City Council finds, on the basis of the whole record before it, that there is no substantial evidence the project will have a significant impact on the environment, and that the ND reflects the independent judgment and analysis of the City. The City Council hereby approves the ND. Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code (PMC) for the approval of Conditional Use Permit 02 -11M to modify CUP 02 -11 to expand the scope of the private pre - school operating on the Ner Tamid Synagogue property to include classes for elementary age students; additionally, the maximum enrollment at the school would be increased from 50 to 85 students, are made as follows: A. The school is a permitted use in the Rural Residential C zone with the approval of a Conditional Use Permit. Therefore, the proposed location, size, design and operating characteristics of the uses are in accordance with the title and purpose of PMC 17.48.070, the purpose of the zone in which the site is located, the City General Plan, and the development policies and standards of the City. B. The school has been designed to comply with the Poway General Plan and PMC, and will be consistent with surrounding development. Additionally, the school has operated in compliance with the conditions of approval of CUP 02 -11 9014 Resolution No. P -10 -13 Page 2 and without complaint from the neighborhood since it was established. Therefore, the location, size, design and operating characteristics of the school will be compatible with, and will not adversely affect or be materially detrimental to, adjacent uses, buildings, structures, or natural resources. C. The school building meets standards for scale, coverage and density. Therefore, the harmony in scale, bulk, coverage and density of the project is consistent with adjacent uses. D. There are public facilities, services and utilities available to the site. E. The school has been designed to comply with the Poway General Plan and PMC standards, and the use has operated compatibly with surrounding development. Therefore, there will be no harmful effect upon desirable neighborhood characteristics. F. The school has not resulted in a significant impact on the character or the intensity of the transportation system in the vicinity and is found to be consistent with the Circulation Element of the General Plan. G. The school is allowable on land zoned Rural Residential C, and the property is located in an area with suitable circulation and other infrastructure. The surrounding development is compatible with the proposed uses. Therefore, the site is suitable for the childcare facility. H. The use involved has no hazardous materials or processes, nor does it significantly affect natural resources. Therefore, there will not be significant harmful effects upon environmental quality and natural resources. There are no other relevant negative impacts of the use that cannot be mitigated. J. The impacts, as described above, and the location, size, design and operating characteristics of the use and the conditions under which it operates or is 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. Section 3: The City Council hereby approves Conditional Use Permit 02-11M, a proposal to modify CUP 02 -11 to expand the scope of the private pre - school operating on the Ner Tamid Synagogue property to include classes for elementary age students; additionally, the maximum enrollment at the school would be increased from 50 to 85 students. The approval is subject to the following conditions: 9015 Resolution No. P -10 -13 Page ,3 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, directly related to the City Council's approval of the applicant's request to modify Conditional Use Permit 02 -11 to allow Montessori classes for elementary age students, and to increase the maximum enrollment of the applicant's school from 50 to 85 students. This indemnification includes any action to attack, set aside, void, challenge, or annul the development approval described above and any environmental document or decision associated with the development approval described above. 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. This indemnification provision shall be applicable only to those claims, actions and proceedings filed within 90 days from the date of the final approval by the City Council of the applicant's request to modify Conditional Use Permit 02 -11, in accordance with the statute of limitations set forth in Code of Civil Procedure 1094.6. B. Approval of this Conditional Use Permit request shall apply only to the subject project and existing uses, 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: (1) the applicant shall submit in writing that all conditions of approval have been read and understood, and (2) the property owners shall execute a Covenant Regarding Real Property which states that the applicant must abide by the conditions contained in this Resolution. 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 this CUP shall remain in effect for the life of the project and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner. F. Conditional Use Permit 02 -11M 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. 9016. Resolution No. P -10 -13 Page 4 G. Development on the site must comply with the Poway Noise Ordinance, Chapter 8.08 PMC. Construction work is specifically regulated by PMC 8.08.100. H. Any changes in the approved use of the building, including, but not limited to, the number of students, the hours of operation, or the seat capacity in the assembly area, that results in an increase in required parking, will require the approval of a modification to this Conditional Use Permit. Depending on the scope of such changes, at the discretion of the Director of Development Services, said modification may be processed administratively or may be referred to the City Council for a public hearing. I. Presently, the site has been developed with the first phase of the permanent sanctuary building (5,999 square feet). The applicant shall obtain a Building Permit prior to the construction of subsequent phases of the 17,000- square -foot synagogue or 12,000- square -foot multi - purpose building. Compliance with the following conditions is required prior to issuance of a Building Permit. 1. The site shall be developed in accordance with the approved site plan and elevations on file in the Development Services Department and the conditions contained herein. (Engineering) 2. The applicant shall pay all applicable development impact fees in effect at time of permit issuance. Development impact fees for the existing 6,000 - square -foot permanent structure are considered paid in full. All water, traffic, park,. and drainage development impact fees for the project are considered to be paid in full, provided that the project scope does not significantly change from the original approval as determined by the City Engineer. The remaining fees for project Phases 1 B and 2 include, but are not limited to, sewer and Fire Department facilities /apparatus/ vehicle. These remaining fees will be assessed at the time of Building Permit issuance. Please note that credit will be given for sewer fees paid for the existing modular buildings. (Planning) 3. The building plans shall depict all roof appurtenances, including air conditioners, architecturally integrated, screened from view and sound buffered from adjacent properties and streets, to the satisfaction of the Director of Development Services. 4. The building plans shall identify the exterior building colors and materials consistent with the approved project plans on file in the Development Services Department. 9017 Resolution No. P -10 -13 Page 5 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. Details of any exterior lighting shall be included on the building plans, including fixture type(s) and design. All exterior lighting fixtures are required to be low- pressure sodium and designed such that they reflect light downward, and away from streets and adjoining properties. Parking lot lights shall not exceed a maximum height of 18 feet from the finished grade. J. The applicant shall construct the following improvements to the satisfaction of the Director of Safety Services: 1. Roof covering shall be fire retardant as per CBC Section 1505, and City of Poway Ordinance No. 64 and its amended Ordinance No. 526. 2. The buildings shall display their numeric address in a manner visible from the access street. Minimum size of the building numbers shall be six (6) inches on the front facade of the building. The address shall also be displayed on the roof in a manner satisfactory to the Director of Safety Services, and meeting Sheriffs Department ASTREA criteria. 3. Every building hereafter constructed shall be accessible to Fire Department apparatus by way of access roadways with an all- weather driving surface of not less than 20 feet of unobstructed width, with adequate roadway turning radius capable of supporting the imposed loads of fire apparatus, and having a minimum of 13 feet, 6 inches of vertical clearance. The road surface type shall be approved by the City Engineer, pursuant to the PMC. 4. The building will be required to have an approved fire sprinkler system meeting PMC requirements installed. The entire system is to be monitored by a central monitoring company. System post indicator valves with tamper switches, also monitored, are to be located by the City Fire Marshal prior to installation. 5. An automatic fire alarm system shall be installed to approved standards by a properly licensed contractor. The system shall be completely monitored by a U.L. listed central station alarm company or proprietary remote station. 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. Resolution No. P -10 -13 Page 6 7. A "Knox" Security Key Box shall be required for the buildings at a location determined by the City Fire Marshal. A "Knox" padlock shall be required for the fire sprinkler post indicator valve. 8. Fire Department access for use of firefighting equipment shall be provided to the immediate job construction site at the start of construction, and maintained at all times until construction is completed. 9. Permanent access roadways for fire apparatus shall be designated as "Fire Lanes" with appropriate signs and curb markings. 10. A minimum 3A:40BC fire extinguisher is required for every 3,000 square feet and 75 feet of travel distance. 11. If an elevator is installed, it shall be sized to accommodate a normal hospital gurney. Minimum dimensions for the inside car platform shall be 6'8" wide by 4'Y deep. This requirement does not apply to the modular buildings. 12. Fire sprinkler riser(s) shall be located within 10 feet of an exterior exit man door or shall be located inside an enclosed closet with an exterior access man door. The door shall be labeled with a sign indicating "Fire Sprinkler Riser." When the closet method is chosen, applicant shall provide 36 inches of clearance from the standpipe or attached additional risers, accessible by a 3'0" man door. K. Prior to issuance of a Certificate of Occupancy for each development phase, the applicant shall comply with the following: All Phases 1. The site shall be developed in accordance with the approved plans on file in the Development Services Department for both CUP 02 -11 and DR 02- 16, along with the conditions contained therein /herein. A final inspection from the appropriate City departments will be required and approval for occupancy obtained. 2. All graded slopes and parking lot planter areas shall be planted and irrigated in accordance with the approved landscape plans. If parking lot improvements are phased, the associated parking lot planter areas shall also be completed. 3. Driveways, drainage facilities, slope landscaping and protection measures, and utilities shall be constructed, completed and inspected by the Engineering Inspector. 9019 Resolution No. P -10 -13 Page 7 4. An adequate drainage system capable of handling and disposing all surface water shall be provided, to the satisfaction of the Engineering Inspector. 5. All proposed utilities within the project site shall be installed underground. 6. Record drawings, signed by the engineer of work, shall be submitted to Development Services prior to a request of occupancy, per section 16.52.13013 of the Grading Ordinance. Record drawings shall be submitted in a manner to allow the City adequate time for review and approval prior to issuance of occupancy and release of grading securities. 7. All landscaped areas shall be maintained in a healthy and thriving condition, free from weeds, trash, and debris. The trees shall be encouraged and allowed to retain a natural form. Pruning should be restricted to maintain the health of the trees and to protect the public safety. Phase II 1. Completion of all items listed under Condition K. in the All Phases section. Phase III 1. Completion of all items listed under Condition K. in the All Phases section. 2. All of the modular buildings shall be removed from the property and the site restored in conformance with the approved construction plans, to the satisfaction of the Director of Development Services. L. The following performance standards shall apply to the Synagogue /private school /religious school upon establishment of the uses: 1. The use of the main sanctuary building and multi- purpose building shall be limited to education and religious activities, along with related accessory uses. 2. The maximum student enrollment permitted for the private school is 85 and individual class size shall not exceed 28 students per class. The maximum student enrollment for the religious school is 90. 3. The activities of the main sanctuary building and multi - purpose building shall not occur in such a manner as to create adverse impacts on the circulation and parking on surrounding public streets and La Manda Drive. 9020 . Resolution No. P -10 -13 Page 8 4. The facility shall be operated in such a manner as to minimize any possible disruption by noise, and shall comply with the noise standards contained in Chapter 8.08 PMC. At no time shall equipment noise from any source, or any loudspeaker sound amplification system, exceed the noise standards contained in the Poway Municipal Code. 5. The parking areas and driveways shall be well maintained. 6. The owner or operator of the facilities shall routinely and regularly inspect the site to ensure compliance with the standards set forth in this permit. 7. La Manda Drive shall not be used for parking. 8. The southernmost row of parking shall be barricaded off and only used if there are not enough parking spaces in the remainder of the parking lot for the approved uses to occur. 9. Parking lot lights shall be turned off when there are no activities occurring on the site. Security lighting is permitted to remain on, provided it has proper shielding and does not create glare on adjacent properties. Consideration shall be given to the use of motion sensor security lights where appropriate. M. If the private school, religious school and /or synagogue /worship use for which CUP 02 -11 M was issued terminates or ceases operation for a continuous period of time in excess of 180 calendar days except for: (1) destruction or damage by acts of God; (2) destruction or damage by malicious acts; or (3) remodeling or rehabilitation requiring prolonged closure, such remodeling or rehabilitation shall be continuously and diligently pursued; that use component (private school, religious school and /or synagogue /worship use) of the use permit shall expire, and shall thereafter be of no further force or effect. Section 4: Resolution No. P -02 -63 approving CUP 02 -11 approving the construction of a 17,000- square -foot sanctuary, office, classroom building and a 12,000- square -foot multi - purpose building for the establishment of a synagogue, a pre - school and a religious school at 15318 Pomerado Road is hereby rescinded, effective upon establishment of the use in reliance of the approval of CUP 02 -11 M. Section 5: The approval of Conditional Use Permit 02 -11 M shall expire on April 6, 2012, at 5:00 p.m. unless, prior to that time, use in reliance on this CUP approval has commenced prior to its expiration. 9021 Resolution No. P -10 -13 Page 9 PASSED, ADOPTED and APPROVED by the City Council of the City of Poway, State of California, this 6t" day of April 2010. Don Higginson, M or ATTEST: Lin royan, MMC, City Clerk STATE OF CALIFORNIA ) )SS COUNTY OF SAN DIEGO ) 9022 Resolution No. P -10 -13 Page 10 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 -13, was duly adopted by the City Council at a meeting of said City Council held on the 6th day of April 2010, and that it was so adopted by the following vote: AYES: Boyack, Cunningham, Rexford, Kruse, Higginson NOES: None ABSENT: None DISQUALIFIED: None royan, MMC, City ity