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Covenant Regarding Real Property 2013-0733954RECORDING REQUEST BY: CITY OF POWAY ) WHEN RECORDED MAIL TO: ) CITY CLERK CITY OF POWAY ) A n P O BOX 789 ) j I POWAY CA 92074 -0789 ) APN: 317 - 130 =47 D a C ## 201 3 - 0733954 IIIII 1 III IIIII II II IIIII III IIIII IIIII II II IIIII IIIII IIIII IIII IIII DEC 23, 2013 3:05 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 34M PAGES: 7 (This space for Recorders Use) COVENANT REGARDING REAL PROPERTY Poway City S.C., L.P., a Delaware Limited Partnership, ( "OWNER" hereinafter) is the owner of real property commonly known as 13670 Poway Road ( "PROPERTY hereinafter) and more fully described as: That portion of Parcel 3 of Parcel Map No. 1675, in the City of Poway, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, June 28, 1973 as instrument no. 73- 178786 of Official Records, lying Westerly of the Southerly prolongation of the Easterly line of the Westerly 10.00 feet of Parcel 2 of said Map, together with the Easterly and Northerly 50.00 feet of Parcel 4 of said Map, being a portion of the Southeast Quarter of the Northeast Quarter of Section 13, Township 14 South, Range; 2 West, San Bernardino Meridian, in the County of San Diego, State of California, according to Official Plat thereof. In consideration of the approval of Minor Conditional Use Permit (MCUP) 13 -001 by the City of Poway ( "CITY" hereinafter), OWNER hereby agrees to abide by the conditions of approval contained in the attached Resolution (Exhibit A). 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 In the event that MCUP 13 -001 expires or is rescinded by City Council, or the OWNER terminates the':use permitted by MCUP 13 -001, upon the request of the OWNER the CITY shall expunge this Covenant from the record title of the PROPERTY and MCUP 13 -001 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. OWNL Poway City S.C., L.P. Dated: (Notarize) Its: c! CITY OF POWAY: Dated: �U �7 �3 By: le��41v -Kgbert J. Mani , Dire to of D velopment Services � 3 -l07 C•...1_ :;� POWAY CITY S.C., L.P. By: Poway City Holdco, LLC, its general partner By: Kimco Poway City 1195, Inc., its sole member / _ By: Name: Kevi rtikh Title: Vice P sident Dated: ACKNOWLEDGMENT FOR OWNER State of California County of San Diego On November 25, 2013 before me, Nicole Ann Clark, Notary Public, personally appeared Kevin Smith 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 h d an official seal. Signature NICOLE ANN CLARK Commission # 1965257 a : -m ^' Notary Public - California z (Seal) z `"' San Diego County My Comm. Expires Jan 27, 2016 RESOLUTION NO. P -13 -26 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING MINOR CONDITIONAL USE PERMIT 13 -001 ASSESSOR'S PARCEL NUMBER 317- 130 -47 WHEREAS, Minor Conditional Use Permit (MCUP) 13 -001 was submitted by Peter Green (Applicant) /Poway City S.C., L.P (Owner): A request to allow live entertainment within an existing restaurant and bar establishment located at 13670 Poway Road, in the Commercial General (CG) zone of the Poway Road Specific Plan area: and WHEREAS, on October 1, 2013, 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: The proposed project is Categorically Exempt as a Class 1 Categorical Exemption from the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the 2013 CEQA Guidelines, in that the proposed project consists of adding an activity within an existing restaurant that will involve a negligible increase in the intensity of use. Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code (PMC), for MCUP 13 -001 to allow live entertainment within an existing restaurant and bar establishment located at 13670 Poway Road are made as follows: A. The location, size, design, and operating characteristics of the live entertainment are in accord with the,title and purpose of Chapter 17.48 PMC (Conditional Use Permit Regulations), the General Plan, and the development policies and standards of the City in that live entertainment is allowed as an accessory to a restaurant use on a property designated for commercial general use with the approval of an MCUP; and B. The location, size, design, and operating characteristics of the live entertainment will be compatible with and will not adversely affect or be materially detrimental to adjacent uses, people, buildings, structures, or natural resources in that the use will be conducted within an existing restaurant within an existing commercial center and is located approximately 500 feet away from the nearest residential use across Poway Road, which is a major thorough -fare; and C. The live entertainment is in harmony with the scale, bulk, coverage, and density of, and is consistent with adjacent uses in that the use will be operating within an existing commercial building located within a completely developed commercial center; and Exhibit A Resolution No. P -13 -26 Page 2 D. There are adequate public facilities, services and utilities available at the subject site to serve the live entertainment within an existing restaurant and bar establishment; and E. There will not be a harmful effect upon desirable neighborhood characteristics in that the live entertainment will take place inside of an existing restaurant, exterior doors will be kept closed while live entertainment is provided, and no exterior speakers will be allowed in the patio area; and F. The generation of traffic will not adversely impact the capacity and physical character of the surrounding streets and /or the Circulation (Master Transportation) Element of the General Plan; and G. The site is suitable for the type and intensity of use or development that is proposed in that the live entertainment will be operating within an existing commercial building on a completely developed site; and H. There will not be significant harmful effects upon environmental quality and natural resources in that the site is completely developed and no natural resources exist on the property; and There are no relevant negative impacts of the proposed use that cannot be mitigated; and J. That the proposed location, size, design, and operating characteristics of the live entertainment, and the conditions under which it would be operated or 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; and K. That the live entertainment will comply with each of the applicable provisions of this title, except for approved variances. Section 3: The City Council hereby approves MCUP 13 -001, as shown on the 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 Resolution No. P -13 -26 Page 3 matter. However, the applicant shall not be required to pay or perform any settlement unless such settlement is approved by applicant. B. Approval of this MCUP 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 occupancy or issuance of a Building Permit, whichever comes first. C. Within 30 days of the date of this approval, and before the issuance of any permit or commencement of offering live entertainment, whichever comes first: (1) the applicant shall submit in writing that all conditions of approval have been read and understood; and (2) the property owner shall execute a Covenant 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. E. The conditions of MCUP 13 -001 shall remain in effect for the life of the subject use and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner. F. MCUP 13 -001 maybe 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. G. Disabled access shall be provided throughout the subject tenant space and on the site in accordance with Title 24 regulations to the satisfaction of the Director of Development Services. H. Any signs proposed for the establishment shall be designed in accordance with the Sign Ordinance. The necessary Sign Permit(s) and Building Permit(s) approvals for,signage shall be obtained prior to installation. Prior to the commencement of any entertainment, the applicant shall receive approval of an Entertainment License pursuant to Chapter 5.16 PMC through the City's Administrative Services Department. J. Upon establishment of the proposed use, pursuant to MCUP 13 -001, the following shall apply: 1. 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, exceed the noise standards contained in the PMC. Resolution No. P -13 -26 Page 4 2. Live entertainment shall be limited to 11:30 a.m. to 12:00 a.m. Changes to the allowable hours for live entertainment must be approved through an amendment to MCUP 13 -001. 3. No outdoor live entertainment or amplified music is permitted, unless in conjunction with an approved Temporary Use Permit. 4. There will be. no dancing allowed on the premises. 5. No pool or billiard tables may be installed or used on the premises. 6. Food must be available to be served while business is open to the public. 7. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 8:00 a.m. and 12:00 a.m. 8. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The business shall at all times.maintain records which reflect separately the gross sale of food and the gross sales of alcoholic beverages of the business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the City on demand. 9. The parking areas and driveways shall be well maintained. 10. 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. 11. All landscaping onsite and 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 Manua/. 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. Section 4: The approval of MCUP 13 -001 shall expire on October 1, 2015, at 5:00 p.m. unless, prior to that time, commencement of the live entertainment or a Building Permit has been issued and construction on the property in reliance on the MCUP approval has commenced, whichever comes first. Section 5: The parties are hereby informed that the time within which judicial review of this decision must be sought is governed by Section 1094.6 of the California Code of Civil Procedure. Resolution No. P -13 -26 Page 5 PASSED, ADOPTED AND, APPROVED by the City Council of the City of Poway at a regular meeting this 15t day ofbctober "2043. ATTEST: Sheila R. Cobian, CMC, City Clerk STATE OF CALIFORNIA ) ) SS COUNTY OF SAN DIEGO) I, Sheila R. Cobian, City Clerk of the City of .Poway, do hereby certify under penalty of perjury that the foregoing Resolution No. P -1346 was duly adopted by the City Council at a meeting of said City Council held on the 15t day of October 2013, and that it was so adopted by the following vote: AYES: CUNNINGHAM, VAUS, GROSCH, MULLIN, HIGGINSON NOES: NONE ABSENT: NONE DISQUALIFIED: NONE � � 6�?' ak c+'y--. Sheila R. Cobian, CMC, City Clerk City of Poway