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Covenant Regarding Real Property 2014-0010793RECORDING REQUEST BY: CITY OF POWAY (d WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY CA 92074 -0789 APN: 317 - 270 -08 D Q C # 2014-0010793 1111111 II IIII II 1111111111 IIIII IIIII 1 11111 IIII IIIII I II JAN 09, 2014 10:51 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg. Jr.. COUNTY RECORDER I FEES: 37.00 PAGES: I IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII (This space for Recorder's Use) COVENANT REGARDING REAL PROPERTY CWTN Associates LLC, ( "OWNER" hereinafter), is the owner of real property commonly known as 13250 Kirkham Way ( "PROPERTY hereinafter) and more fully described as: LOT 53 OF CITY OF POWAY TRACT NO. 85 -04, UNIT 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12572, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 28, 1990, AS INSTRUMENT NO. 90- 107515 OF OFFICIAL RECORDS. In consideration of the approval of Specific Plan Amendment (SPA) 13 -003 and Conditional Use Permit (CUP) 13 -015 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 In the event that CUP 13 -015 expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 13 -015, upon the request of the OWNER the CITY shall expunge this Covenant from the record title of the PROPERTY and CUP 13 -015 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: CWTN Associates LLC Dated: 4�zt<' _ _ C.A. Wesolowski (Notarize) .QA,of, evrA /2 c>�e2 It 6: CITY OF POWAY: Dated: 12-NI-3 By: /,Zw/v , "o, R bert J. Mani , Direktcd of beve pment Services l q-OO( M CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California j� 1 County of ) a o ./ i el0 Jy On );Z - ) I ') 3 before me, Date personally appeared C.A. �lLyt6 /`aSM()' PM, l�lv n-f �y c Here Insert Name antl Title of the OHi JJi5dow�,k,i Namelsl of Sionerlsl Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): ❑ Partner — ❑ Limited ❑ Get ❑ Attorney in Fact ❑ ❑ Guardi Other: an or Co valor ❑ Other: Is Representing: Signer's Nat ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General • ❑ Attorney in'Fact Top of thumb here L1 Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPR 11T -- OF SIGNER 02007 Natonal Notary Asscaatlon• 9350 De Soto Ave, P.O. Box 2402•Cha4sWM, CA 91313-2402• w Natlonalrtotaryorg Ilem05907 ReooJer Call TdFRee 1- 600.8]6882] who proved to me on the basis of satisfactory evidence to be the person(s) whose name(q) is /arasubscribed to the within instrument and acknowledged to me that he /shefthey executed the same in his/her/their authorized capacity(ies), and that by his/her/theic signature(o on the instrument the person(s), or the entity upon behalf of which the person() acted, executed the instrument. ... DANA RASMUSSEN Commission a 1975965 I certify under PENALTY OF PERJURY under the laws m Notary Public - California i of the State California that the fore h is e o foregoing raP 9 i•r._�.. s San Diego County true and correct.. M Comm. Expires Apr,22,2016+ WITNESS hand and official seal. Signature F/ / / /,A�� Place Notary Seal ADOVe Signature of NolaryPUDlic 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: Number of Page Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): ❑ Partner — ❑ Limited ❑ Get ❑ Attorney in Fact ❑ ❑ Guardi Other: an or Co valor ❑ Other: Is Representing: Signer's Nat ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General • ❑ Attorney in'Fact Top of thumb here L1 Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPR 11T -- OF SIGNER 02007 Natonal Notary Asscaatlon• 9350 De Soto Ave, P.O. Box 2402•Cha4sWM, CA 91313-2402• w Natlonalrtotaryorg Ilem05907 ReooJer Call TdFRee 1- 600.8]6882] RESOLUTION NO. P -13 -29 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA APPROVING CONDITIONAL USE PERMIT 13 -015 ASSESSOR'S PARCEL NUMBER 317 - 270 -08 WHEREAS, an application was submitted by CWTN Associates LLC, requesting approval of an amendment (SPA 13 -003) to the South Poway Specific Plan (SPSP) to change the land use designation on a developed property located at 13250 Kirkham Way from Light Industrial (LI) to Light Industrial- Storage (LI -S), as well as requesting approval of Conditional Use Permit (CUP) 13 -015 to establish a contractor's office with outdoor storage; and WHEREAS, on December 3, 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: Pursuant to the California Environmental Quality Act (CEQA), the proposed project is Categorically Exempt as a Class 1 Categorical Exemption from the California Environmental Quality Act (CEQA) pursuant to Section 15301(e) of the 2013 CEQA Guidelines, in that the project involves an amendment to the South Poway Specific Plan (SPSP) to change the land use designation from Light Industrial (LI) to Light Industrial- Storage (LI -S) and the approval of a Conditional Use Permit (CUP) for an existing use on a developed site that includes a contractor's office with outdoor storage and will not result in any expansion of the use. Specifically, the project will not result in any increase of floor area space. Additionally, (1) there is no reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances; (2) the proposed project will not result in damage to scenic resources; (3) the proposed project is not to be used for a project located on a hazardous wastesite;.and (4) the proposed project will not cause a substantial adverse change in the significance of a historical resource. Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code (PMC); for CUP 13 -015 are made as follows: A. The location, size, design, and operating characteristics of the proposed facility 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 a contractor's office with outdoor storage is permitted at this location with approval of a CUP on the effective date of an Ordinance approving Specific Plan Amendment (SPA) 13 -003, that changes the land use designation on the property at 13250 Kirkham Way from Light Industrial (LI) to Light Industrial- Storage (LI -S). Exhibit A Resolution No. P -13 -29 Page 2 B. The location, size, design, and operating characteristics of the proposed facility will be compatible with and will not;adversely affect orbe materially detrimental to adjacent uses, people, buildings, structures, or natural resources in that the site has adequate onsite parking to accommodate the use. C. The proposed facility is in harmony with the scale, bulk, coverage, and density of, and is consistent with, -adjacent uses in that the use will be complementary to other LI uses located immediately to the north, east, south, and west of the subject site and LI -S uses located within the vicinity of the site and will provide employment opportunities within the Business Park. The site contains existing buildings which comply with South Poway Specific Plan requirements. No significant changes to the: exterior of the buildings are proposed. Upgrades will be made to the existing front fence and mechanical gate to screen any visibility of the outdoor storage area. D. There are adequate public facilities, services and utilities available at the subject site to serve the use which is on a developed lot within an existing building and partially outdoors. E. There will not be a harmful effect upon the surrounding property characteristics in that the site has adequate onsite parking to accommodate the proposed use. The outdoor storage area will be screened from view. 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 proposed facility will generate, traffic within the range of other uses permitted in the LI and LI -S land use areas. G. The site is suitable for the type and intensity of use or development that is proposed in that the facility (existing buildings with an outdoor'storage area) will provide employment opportunities within the Business Park. H. There will not be significant harmful effects upon environmental quality and natural resources in that the proposed facility (existing buildings with an outdoor storage area) will not'involve the removal of natural habitat resources. There are no relevant negative impacts associated with the proposed'facility in that the site has adequate parking to accommodate the proposed use. J. That the potential impacts, and the proposed location, size, design, and operating characteristics of the facility will not be materially injurious to properties or improvements in the vicinity, nor be contrary to the adopted General Plan, in that the site has adequate parking to accommodate the proposed use and all activities will occur within an existing building or within an adequately screened outdoor storage area. Resolution No. P -13 -29 Page 3 Section 3: 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. Section 4: The City Council hereby approves CUP 13 -015 to establish a contractor's office with outdoor storage 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 matter. However, the applicant shall not be required to pay or perform any settlement un less .such,settlement is approved by applicant. B. This Conditional Use Permit (CUP 13 -015) is approved based on an Ordinance approving Specific Plan Amendment (SPA) 13 -003 to change the land use designation on the subject property from Light Industrial (LI) to Light Industrial - Storage (LI -S) and shall not become effective until the Ordinance is in effect. C. Approval of this CUP shall apply only to the subject project and shall not waive compliance with the Zoning Ordinance and all other applicable City Ordinances in effect at the time of Building Permit issuance. D. Within 30 days of the date of this approval, and before the issuance of any permit: (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. In order for the City to prepare the Covenant the applicant must first submit a legal description of the subject site. 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 conditions of CUP 13 -015 shall remain in effect for the life of the subject facility, and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner. Resolution No. P -13 -29 Page 4 G. CUP 13 -015 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 mayhave.been raised.during the prior year. H. The applicant shall provide building improvements as required by the building and fire codes if any change in occupancy in this building is proposed. I. The site shall be developed in accordance with the approved plans on file in the Development Services Department and the conditions contained herein. A final inspection from the appropriate City departments will be required. Fire Safety Services: J. Any interior changes to the office or warehouse will require review to determine if the existing automatic fire sprinkler system needs to be modified. The addition of more than six sprinkler heads requires a separate fire sprinkler system plan submitted to the Poway Fire Department for review, approval, and inspection. The plans shall be prepared and system installed by a C -16 licensed contractor. K. The applicant shall maintain the existing mechanical gate at the entry to the outdoor storage area, which must meet Poway Fire Department policies deemed necessary for rapid, reliable access. The automatic gate shall be equipped with approved, emergency, key-operated switches overriding all command functions to open the gate. An approved key- operated switch shall be dual -keyed or dual - switches to facilitate access by law enforcement personnel. Fire Department shall approve location of key- operated switches. Planning Division: L. The outdoor storage area, as depicted on the approved Site Plan for CUP 13- 015, shall ,maintain adequate screening at all times. The outdoor storage area shall not exceed approximately 11,700 square -feet, as depicted on the approved Site Plan on file. The outdoor storage area may contain various electrical components such as switchgear boxes, work carts, transformer boxes, and pulling equipment. M. The outdoor storage area as depicted on the approved Site Plan for CUP 13 -015, may include incidental activities, that may occur from time to time; on an as- needed basis, involving vehicle loading, of materials, materials storage, shipping of materials, receiving of materials, vehicle parking and vehicle inspection, limited testing of vehicles and /or equipment and minor maintenance of equipment (e.g.: headlight replacement, tire replacement, replacement of vehicle wiper blades, etc.). N. Materials, supplies, minor equipment and minor incidental activities shall not cause any objectionable noise, smoke, odor, dust, noxious gas, vibration, glare, heat, fire hazards or any other objectionable materials to emanate from the property. Resolution No. P -13 -29 Page 5 Engineering /Land Development: O. Activities not allowed within the outdoor. !storage area, as depicted on the approved Site Plan for CUP 13- 015,, without application, review and approval from the City of Poway regarding approved stormwater protection include, but are not limited to: i. Sandblasting, ii. Oil changing, iii. Uncovered trash receptacle storage, iv. Storage of indoor equipment outdoors — especially equipment with oil /grease, V. Liquid storage, vi. Vehicle washing, vii. Construction material storage, viii. Activities /materials that would generate any exposed pollutants. .Section 5: The approval of CUP 13 -015 shall expire on. December.3..2015, at 5:00 p.m. unless, prior to that'time, a Building Permit has been issued and construction on the property in reliance on the CUP approval has commenced. PASSED, ADOPTED and APPROVED by the City Council of the City of Poway, State of California, this 3rd day of December 2013. �— )ev � Don Higginson, Mayor ATTEST: Q Rr Meila R. Cobian, CMC, City Clerk Resolution No. P -13 -29 Page 6 STATE OF CALIFORNIA ) ) SS COUNTY OF SAN DIEGO ) I, Sheila R. Cobian, CIVIC, City Clerk of the City of Poway, do hereby certify, under the penalty of perjury, that the foregoing Resolution No. P- 13 -29; was duly adopted by the City Council at a meeting of said City Council held on the 3rd day of December 2013, and that it was so adopted by the following vote: AYES: CUNNINGHAM, VAUS, GROSCH, MULLIN, HIGGINSON NOES: NONE ABSENT: NONE DISQUALIFIED: NONE Sheila W'Cobian, CIVIC, City Clerk City of Poway