Covenant Regarding Real Property 2013-0733954RECORDING REQUEST BY:
CITY OF POWAY
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WHEN RECORDED MAIL TO:
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CITY CLERK
CITY OF POWAY
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P O BOX 789
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POWAY CA 92074 -0789
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APN: 317 - 130 =47
D a C ## 201 3 - 0733954
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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In the event that MCUP 13 -001 expires or is rescinded by City Council, or the OWNER terminates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