Covenant Regarding Real Property 2011-0217080 D0C It 201 1 -021 7080 • 1 11111111 0111111 111111111101111111101111111111111111111111111111111
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RECORDING REQUEST BY: ) APR 26, 2011 3:59 PM
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CITY OF POWAY ) OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
WHEN RECORDED MAIL TO: E rnest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 49.00
CITY CLERK ) PAGES: 12
P BOX 789 AY ) 1111111 0111 011111111 0111 011101111011 HI Ilul 0111 ID 111 1110 I EIII .
POWAY CA 92074 -0789 )
) ; 1.1424 (This space for Recorder's Use)
APN: 317 - 021 -23
COVENANT REGARDING REAL PROPERTY
PK Smart Center, Inc., 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 12310 9th Street ( "PROPERTY hereinafter).
In consideration of the approval of CUP 10 -10 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In the event that CUP 10 -10 expires or is rescinded by City Council, or the OWNER
terminates the use permitted by the CUP 10 -10, upon the request of the OWNER, the City
shall expunge this Covenant from the record title of the PROPERTY and CUP 10 -10 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: PK Smart Center, Inc. (Y1. 1406561 bytVan .
Dated: X Ao _ 2,, ` t .,
(Notarize)
.M Hossein D Javanfar
CITY OF POWAY:
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Dated: 1/5//1 By: I /1:_., AL—KA(../
R. •ert J. Ma s, Dire tor d velopment Services
M:\planning \10report\cup \CUP 10 -10 PK Smart Center\covenant.docx
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1 1425
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of &1rIYI
-
On 1 110120 u before me, 1 )V - et/LW) t&k l v '\ Put- 1 ' J \ ( C
Date Here Insert Name Tide of the Officer
personally appeared M. I-- (Y- b Name(s) of Si rc r u. (�
who proved to me on the basis of satisfactory evidence to
be the person(pwhose names )1are subscribed to the
SHELLEY COLLINS within instrument and acknowledged to me that
21111:111",%!1 Commission # 1787479 d9Slisithey executed the same in 1M- - -ir authorized
u Notary Public - California
I 'lr J San Diego County t capacity(ies), and that by teheritheir signature(* on the
!Ores_ _Dec_ instrument the person*, 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 m h.. nd and official :al.
Signature W _ ' . . I .
Place Notary Seal Above Sigia :. • r • ublic
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 um 0) V ' C/1' t/ I IX ` ,/ � r� ,, () t�
Title or Type of Document: ca _ tea)(.. tp / v
1 1 20 1 0
Document Date: Number of Pages: I `
Signer(s) Other Than Named Above: 80) NA An LS
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 R,Gr +TTHUMBPR Nr ❑ Partner — ❑ Limited ❑ General RIGHT rt +ur,nF RiNr
❑ Attorney in Fact OF SIGNER ❑ Attorney in Fact OF SiGNFR
❑ Trustee To 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.& c 2402 •Chatsworth, CA 91313- 2402 • www NatlonalNotaryorg Item #5907 Reader: Cad Toll-Free 1- 800.876.6827
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• EXHIBIT A •� 1
26
The land referred to herein is situated in the State of California, County of San Diego, City of Poway,
and described as follows:
Parcel l:
All of Lot 26 in Tract "F' of Poway, in the City of Poway, County of San Diego, State of California,
according to Map thereof No. 536, filed in the Office of the County Recorder of San Diego County, May 7,
1888.
Excepting therefrom the easterly 515.00 feet, measured along the northerly line of said Lot 26.
Also excepting therefrom that portion of said Lot 26 which would be included within the north 3 acres of that
portion of Lots 26 and 35 in said Tract lying westerly of the westerly line of the easterly 370.00 feet,
measured along the northerly line of said Lot 26.
And also specifically excepting from said Lot 26, that portion of 9 Street (60.00 feet wide), lying southerly
of and adjacent to the southerly line of said Lot 26 as shown on said Map No. 536.
Parcel 2:
An easement and right of way for road and utility purposes and appurtenances thereto, to be used in common
with others, over, under, along and across that portion of the westerly 20.00 feet of the easterly 515.00 feet
(said dimensions being measured along the northerly line), of Lot 26 in Tract "F' of Poway, in the City of
Poway, County of San Diego, State of California, according to Map thereof No. 526, filed in the Office of the
County Recorder of San Diego County, May 7, 1888, lying southerly of the easterly prolongation of the
northerly line of Parcel 1 hereinabove described.
(End of Legal Description)
File Number: 298170 •
EXHIBIT A
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• RESOLUTION NO. P -10 -38 1 1 42 7
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 10 -10
ASSESSOR'S PARCEL NUMBER 317 - 021 -23
WHEREAS, Conditional Use Permit (CUP) 10 -10 was submitted by John Fitch (for
PK Smart Center, Inc.), Applicant, to operate a childcare center and school for 140 enrollees
on a previously developed, 1.62 -acre parcel located at 12310 9th Street, in the Rural
Residential C (RR -C) zone; and
WHEREAS, the site was developed to accommodate a childcare center and operated
as such for approximately 25 years; and
WHEREAS, the proposed childcare center and school would occupy the existing
classroom buildings and playground, and renovate the existing parking lot; and
WHEREAS, on December 21, 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: An Environmental Initial Study (EIS) was completed for the project. It was
determined that while the project will not have a significant adverse impact on the
environment, there could be potential impacts in the area traffic and transportation. The
City Council therefore finds that all of the potential environmental concerns can be mitigated
to a less than significant level and hereby approves a Mitigated Negative Declaration (MND)
for the proposed uses.
Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal
Code (PMC) for CUP 10 -10 to allow a childcare center and private school to be operated,
are as follows:
A. The proposed childcare center and school is consistent 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 in that school uses are
permitted in the RR -C zone with a Conditional Use Permit; and
B. The location, size, design and operating characteristics of the childcare center and
school will be compatible with and will not adversely affect or be materially
detrimental to adjacent uses as the school's schedule is offset from Pomerado
Elementary School, and the use will be conducted within existing classroom buildings
and playground area that were built for a childcare use and operated as such for
approximately 25 years; and,
EXHIBIT B
Resolution No. P-10-311428
Page 2
C. The harmony in scale, bulk, coverage, and density of the childcare center and school
use will be consistent with adjacent uses because the use will be conducted within
existing classroom buildings and playground areas that are compatible with
surrounding structures and future development of vacant properties; and
D. The proposed childcare center and school use will not affect existing public facilities,
services and utilities at the site; and
E. The proposed childcare center and school use will not have a harmful effect upon
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desirable neighborhood characteristics because it will be similar to previous daycare
centers that have operated for approximately 25 years on the property without any
known complaints. Additionally, a combination of the existing chain link fencing,
building and parking lot setbacks, and elevation changes between the subject site
and surrounding property will provide neighboring residential uses an adequate
buffer from the use; and
F. The generation of traffic will not adversely impact the capacity and physical character
of the surrounding streets and /or the Circulation Element of the General Plan in that
the Level of Service of the streets in the area is at an acceptable level, and the
increase in traffic from the childcare center and school will not be significant given the
existing traffic volumes and flows in the area. Required median improvements,
striping and signage will direct traffic within the existing 9th Street cul-de -sac, and
there will be adequate onsite parking to serve the proposed childcare center and
school and an adequate queuing area for dropping off of children; and
G. The site is suitable for the type and intensity of use, in that the site was developed
for a childcare use and the proposed childcare center and school will act as a buffer
between single - family residential properties to the west and north, and multi- family,
commercial and public elementary school development to the east and south. The
size and scope of the facility conforms to development standards; and
H. The proposed development will not have significant harmful effects upon
environmental quality and natural resources in that it will be conducted within existing
buildings and playground area. Parking lot and improvements to the 9th Street
cul-de -sac will ensure that the proposed development will not significantly impact
traffic congestion and safety in the area; and
There are no other relevant negative impacts of the development that cannot be
mitigated; and
J. The proposed childcare center and school use 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; and
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1 14 2 9
Resolution No. P -10 -38
Page 3
K. The proposed childcare center and school use will comply with each of the applicable
provisions of Title 17 of the Poway Municipal Code.
Section 3: The City Council hereby approves CUP 10 -10 to operate a childcare center
and school for 140 enrollees at 12310 9th Street, in the Rural Residential C (RR -C) zone, as
shown on the date - stamped approved plans on file with the City, subject to the following
conditions:
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, 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 the
applicant.
B. Approval of this CUP 10 -10 request shall apply only to the subject project 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.
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.
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E. The conditions of CUP 10 -10 shall remain in effect for the life of the subject childcare
center and school, and shall run with the land and be binding upon future owners,
successors, heirs, and transferees of the current property owner.
F. CUP 10 -10 may 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 been raised during the prior year, including, but not limited
to, the adequacy of the buffering effect of the chain link fence along the west
property line.
•
114301
Resolution No. P -10 -38
Page 4
G. Prior to approval of improvements plans, the applicant shall comply with the
following:
(Engineering)
1. The applicant shall provide certification from a California licensed engineer or
licensed architect certifying that a Grading Permit will not be required pursuant
to the PMC. The letter shall be in a form acceptable to the City of Poway,
signed and sealed in accordance with the Business and Professions Code,
and include the calculations used to make the determination.
2. All spoil materials from footings shall be legally disposed off offsite unless
otherwise specified by the City Engineer.
3. The certificate of compliance determining the legal lot shall be recorded.
4. The applicant shall submit a public improvement plan per PMC requirements
to the Engineering Division. Improvement design should be 100% complete at •
the time of submittal and should include the following Public Improvements:
a. Curb, gutter, sidewalk, and a standard driveway are to be installed
along the property frontage.
b. A streetlight is to be relocated or replaced within the limits of the
cul-de -sac.
c. A raised circular median is to be installed in the center of the
cul -de -sac.
d. The cul-de -sac is to be signed and striped to the satisfaction of the
City Engineer. No parking will be allowed within the cul-de -sac.
5. Upon approval of the improvement plans, an improvement agreement is to be
executed by the property owner. The applicant will be responsible for posting
applicable securities for the public improvements.
6. Following approval of the improvement plans, posting of securities and fees,
and receipt of three copies of the approved plans, the applicant shall attend
a pre - construction meeting at the Department of Development Services.
Compliance for sediment control shall be provided as directed by the
Engineering Inspector.
7. Prior to start of any work within a City -held easement or right -of -way, a Right-
of-Way Permit shall be obtained from the Engineering Division.
Resolution No. P- 10- 38.11 31
Page 5
8. An Encroachment Agreement is to be recorded for the existing retaining wall
and all proposed private improvements within the right -of -way.
(Planning)
9. Approval of a Tree Removal Permit shall be obtained prior to removal of any
trees. In addition, prior to removal of any trees during the recognized nesting
season for raptors, a qualified professional shall evaluate the subject trees for
nests and report the findings in writing to the City. Should a nest be located,
removal of the tree shall be delayed until such time as the nest(s) have been
abandoned.
10. The parking lot shall be landscaped and irrigated in compliance with the City of
Poway Landscape and Irrigation Design Manual, and all other applicable
standards in effect at the time of landscape and irrigation plan check submittal.
Landscaping shall be consistent with Fire Fuel Management Zones to the
satisfaction of the Director of Safety Services. Any disturbed areas will need
to be landscaped and irrigated.
11. The applicant shall comply with Chapter 17.41 PMC, Landscape Efficiency
Standards, if landscape area equal to or greater than 1,000 square feet either
newly created or modified by this project.
12. Landscape and irrigation plans shall be submitted and approved prior to the
issuance of the Improvement Plans. Landscape and irrigation plan review
fees are required and are the responsibility of the applicant. The landscape
plan shall, at minimum, show the following:
(Planning)
a. Irrigation, and plant sizes and species for new and revised landscape
planters within and along the perimeter of the parking lot.
b. Parking lot trees to provide shade.
c. The landscape plan shall provide for tree replacement as required . by a
Tree Removal Permit.
d. Revisions to the parking lot consistent with the approved site plan and
any conditions of approval contained in this Resolution. The plan shall
provide sufficient information to install curbs, paving, and striping.
(Engineering)
e. Low Impact Development (LID) design features shall be clearly shown
and identified on the landscape plan and be appropriately sized for the.
proposed level of development, to the satisfaction of the City Engineer.
Resolution No. P -10 -38 31
Page 6
13. Any signs proposed for this development shall be designed and approved in
conformance with the Sign Ordinance under a separate Sign Permit.
14. The budding plans shall include any proposed outdoor lighting. All outdoor
lighting shall be shielded or directed so that no light spillage shall encroach
into adjoining residential properties. After 11:00 p.m. all lighting shall be
low- pressure sodium, with the overall wattage kept to a minimum in areas
closest to the residential neighbors. Automatic timers shall be installed to
ensure compliance with the dark sky/1ow- pressure sodium requirement. The
maximum height of freestanding light posts shall not exceed 18 feet. The
building lights will be installed with motion detectors, and the parking lot lights
can be installed with timers so that they are turned off when not in use.
Any proposed security lighting shall utilize low- pressure sodium fixtures.
The fixtures shall be shielded, with well - defined cut -off limits, to confine
illumination to onsite areas only.
H. Prior to establishing the childcare center and school, the applicant shall comply with
the following fire safety requirements, to the satisfaction of the Fire Marshal.
1. The building shall display its numeric address in a manner visible from the
access street. Minimum size of the building numbers shall be 6 inches on the
front facade of the building. Building address shall also be displayed on the •
roof in a manner satisfactory to the Director of Safety Services, and meeting
Sheriffs Dept. - ASTREA criteria.
2. 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, having a
minimum of 13'6" of vertical clearance. This 20 -foot access width is the
minimum required for Fire Department emergency access. In most cases,
City Engineering standards will be more restricting. The more restrictive
standard shall apply. The Fire Chief, pursuant to the PMC, shall approve the
road surface type.
3. A `Knox' Security Key Box shall be required for the building at a location
determined by the City Fire Marshal. A breakaway padlock shall be required
for the fire sprinkler system Post Indicator Valve.
4. Permanent access roadways for fire apparatus shall be designated as 'Fire
Lanes' with appropriate signs and curb markings.
5. A minimum 3A:40BC fire extinguisher is required for every 3,000 square feet
and 75' travel distance.
a
1143 3
Resolution No. P -10 -38
Page 7
6. A manual and automatic fire alarm system shall be installed in Group E
occupancies with an occupant load of 50 or more persons, or containing more
than one classroom or one or more rooms used for daycare purposes. The
system shall be installed by a properly licensed contractor to approved
standards. The system shall be completely monitored by a U.L. listed central
station alarm company or proprietary remote station.
I. Prior to establishing the childcare center and school, or as otherwise noted, the
following shall be complied with:
(Engineering)
1. A warranty bond shall be posted with the City for work completed as part of
the public improvement plan.
2. Record drawings for the improvements are to be submitted and approved.
(Planning)
3. All parking lot improvements, plantings, and irrigation shall be installed and
operational pursuant to the approved landscape plans.
4. The school operator must submit a project description for approval to
demonstrate compliance with the minimum parking requirements. The
description shall include the total number of children that are enrolled, the
number of children that will attend the childcare or preschool program, the
maximum number of staff that will be on site at one time for such programs,
and the number of elementary classrooms that will be provided.
J. Upon establishment of the childcare center and school, pursuant to CUP 10 -10, the
following shall apply:
1. The arrival and departure of students shall be conducted in accordance with
the City - approved drop -off and pick -up plan.
2. All facilities and related equipment shall be maintained in good repair. Any
damage from any cause shall be repaired as soon as reasonably possible so
as to minimize occurrences of dangerous conditions or visual blight.
3. The owner or operator of the facility shall routinely and regularly inspect the
site to ensure compliance with the standards set forth in this permit.
4. All lighting fixtures shall be maintained such that they reflect light downward,
away from any road or street, and away from any adjoining residential
development.
Resolution No. P -10 -38 1 14 3 4
Page 8
5. All landscaping, including areas within the adjacent public right -of -way, shall
be adequately irrigated, and permanently and fully maintained by the owner at
all times in accordance with the requirements of the City of Poway Landscape
and Irrigation Design Manual. 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. Trees should be trimmed or pruned
' as needed to develop strong and healthy trunk and branch systems. Tree
maintenance and pruning shall be in accordance with "American National
Standard for Tree Care Operations" latest edition (ANSI A300). Trees shall
not be topped and pruning shall not remove more than 25% of the trees' leaf
surface.
6. The facility shall be operated in such a manner as to minimize any possible
disruption caused by noise, and shall comply with the noise standards
contained in Chapter 8.08 PMC. No loudspeaker sound amplification system
shall be used to produce sounds in violation of the Noise Ordinance.
Section 4: The approval of CUP 10 -10 shall expire on December 21, 2012, at 5:00 p.m.
unless, prior to that time, an Improvement Plan and Landscape Plan have been approved
and construction on the property in reliance on the 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 21st day of December 2010.
t9'v.
Don Higginson, Mayor
ATTEST:
' r - A. royan, MMC, City Clerk
;1
Resolution No. P -10 -38
Page 9
STATE OF CALIFORNIA )
) SS 11
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 -38, was duly adopted by the
City Council at a meeting of said City Council held on the 21st day of December 2010, and
that it was so adopted by the following vote:
AYES: BOYACK, GROSCH, MULLIN, CUNNINGHAM (teleconference), HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
Lip = - . Troyan, MMC, City Clerk
Ci of Poway
•