Covenant Regarding Real Property 2015-06457924
RECORDING REQUEST BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P O BOX 789
POWAY CA 92074 -0789
APN: 317- 130 -47
DOC# 2015- 0645792
111111 It1111111t IIIII IIII 111111 IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
Dec 17, 2015 02:46 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $39.00
PAGES: 9
(This space for Recorder's 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 13624 Poway Road ( "PROPERTY hereinafter), and
more fully described in the legal description attached hereto as Exhibit A and made a part hereof.
In consideration of the approval of Conditional Use Permit (CUP) 14 -009 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In the event that CUP 14 -009 expires or is rescinded by City Council, or the OWNER
terminates the use permitted by CUP 14 -009, upon the request of the OWNER the City shall
expunge this Covenant from the record title of the PROPERTY and CUP 14 -009 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.
Dated: , \}%S I \ S
Dated: 121.511,5—
OWNER: P WAY CITY S.C., L.P.
By: Poway/City Holdco, LLC, its general partner
By:,, -Ifimc Ppway City 5; Inc., its sqle member
(
Kevi Smith (Notarize)
Its: Vice President
CITY OF POW Y:
By:
ob rt J. Man's, D&Ctl5rr of velopm nt Services
Exhibit A
Legal Description:
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.
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Diego )
On November 25, 2015
before me, Nicole Ann Clark, Notary Public
(insert name and title of the officer)
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 hand and official seal.
Signature
-V LL tt UV-
(Seal)
NICOLE ANN CLARK
1965257
Commission ##
Notary Public - California z
Z �'`'
San Diego County D
My Comm. Expires Jan 27, 2016 t
(Seal)
RESOLUTION NO. P -15 -18
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT (CUP) 14 -009
ASSESSOR PARCEL NUMBER 317 - 130 -47
WHEREAS, CUP 14 -009 was submitted by M &M Telecom for Verizon Wireless
(Applicant) /Poway City SCLP (Owner) to install a telecommunications antenna facility at
13624 Poway Road, within the Commercial General (CG) zone of the Poway Road
Specific Plan area. The proposed facility would be located on the roof of an existing
commercial building and would consist of 12 panel antennas, 12 Remote Radio Units
(RRUs), three Global Positioning System (GPS) antennas, and four equipment
cabinets; and
WHEREAS, on July 21, 2015, the City Council held a duly advertised public
hearing to receive testimony from the public, both for and against, relative to this matter.
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 3 Categorical
Exemption from the California Environmental Quality Act (CEQA) pursuant to Section
15303(d) of the 2014 CEQA Guidelines, in that the project involves the installation of a
roof - mounted telecommunications facility that will provide a utility extension to serve the
surrounding areas.
Section 2: The findings, in accordance with Section 17.48.070 of the Poway
Municipal Code (PMC), for CUP 14 -009 to install a telecommunications antenna facility
with 12 panel antennas, 12 RRUs, three GPS antennas, and four equipment cabinets at
13624 Poway Road are made as follows:
A. The proposed location, size, design, and operating characteristics of the
proposed telecommunications facility are in accordance 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 the facility has
been designed, sited and screened such that it will not result in visual impacts to
the surrounding community.
B. The location, size, design, and operating characteristics of the proposed
telecommunications facility will be compatible with, and will not adversely affect
or be materially detrimental to, adjacent uses, residents, buildings, structures, or
natural resources in that the facility has been located on the roof of an existing
commercial building and will be screened from view by a parapet such that it will
not result in visual impacts to the surrounding community. The use will comply
with Federal Communications Commission (FCC) design and operational
standards. The facility is unmanned and will not create traffic impacts.
Resolution No. P -15 -18
Page 2
C. The proposed telecommunications facility is in harmony with the scale, bulk,
coverage, and density of, and is consistent with, adjacent uses in that the
proposed facility will be located on the roof of an existing commercial building
and will be screened from view by a parapet that will blend in with other parapets
on the building.
D. There are adequate public facilities, services and utilities available at the subject
site to serve the proposed telecommunications facility.
E. There will not be a harmful effect upon the desirable surrounding property
characteristics in that the proposed telecommunications facility is located on a
commercial building and the facility will comply with FCC design and operational
standards.
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 telecommunications facility is unmanned and
will only require periodic maintenance, thereby generating minimal traffic.
G. The site is suitable for the type and intensity of use or development that is
proposed in that the facility will be located on the roof of an existing commercial
building and will be screened from view by a parapet and the facility will enhance
telecommunications coverage in the City.
H. There will not be significant harmful effects upon environmental quality and
natural resources in that the proposed telecommunications facility is located on
the roof of an existing commercial building and does not involve the removal of
natural habitat resources.
There are no relevant negative impacts associated with the proposed
telecommunications facility that cannot be mitigated in that the facility will comply
with FCC design and operational standards.
J. That the potential impacts, and the proposed location, size, design, and
operating characteristics of the telecommunications facility will not be materially
injurious to properties or improvements in the vicinity, nor be contrary to the
adopted General Plan in that the facility will be located on the roof of an existing
commercial building, will be screened from view by a parapet, and will comply
with FCC design and operational standards.
K. The proposed telecommunications facility will comply with all the applicable
provisions of Chapter 17.48 PMC, in that the facility has been designed and sited
such that it will not result in visual impacts, and will comply with FCC design and
operational standards.
Resolution No. P -15 -18
Page 3
Section 3: The City Council hereby approves CUP 14 -009 to install a
telecommunications antenna facility with 12 panel antennas, 12 RRUs, three GPS
antennas, and four equipment cabinets at 13624 Poway Road 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 unless such settlement is approved by applicant.
B. Approval of this CUP 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, 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.
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 CUP 14 -009 shall remain in effect for the life of the subject
wireless telecommunications facility, and shall run with the land and be binding
upon future owners, successors, heirs, and transferees of the current property
owner.
F. CUP 14 -009 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.
G. The applicant shall obtain a Building Permit prior to installation of the facility.
Prior to issuance of a Building Permit, the applicant shall comply with the
following:
Resolution No. P -15 -18
Page 4
1. The applicant shall comply with the latest adopted building and electric
codes, and all other applicable codes and ordinances in effect at the time
of Building Permit issuance.
2. 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.
3. A $3,000 deposit shall be submitted to the Development Services
Department to ensure completion and submittal of the required Confirming
Radio Frequency (RF) Report, as specified in condition of approval H.1
below. The deposit shall also be used to cover the cost of an independent
consultant to review the report, as determined by the Director of
Development Services.
4. The antennas shall not be activated for use until the Building Division
conducts a final inspection of the structure.
5. The Building Permit plans shall include a utility plan that shows the
equipment layout.
H. Upon establishment of the wireless telecommunications facility, pursuant to CUP
14 -009, the following shall apply:
1. Within 30 days of the commencement of operation of the antennas, the
operator shall submit a report, prepared by a qualified professional, which
specifies the actual RF levels within 500 feet of the facility and includes a
statement as to compliance with the FCC Maximum Possible Exposure
(MPE) limit. The format of this report shall conform to City requirements.
The intent of the report is to measure exposure levels at the location after
the facility is in operation and shall include the cumulative RF levels of all
the telecommunications facilities at the subject site. A report of these
measurements, and the engineer's findings with respect to compliance
with MPE limits, shall be submitted to the Director of Development
Services.
If that analysis determines the MPE levels are exceeded, the operator
shall cease operation immediately. Modifications shall be made to the
facility and the operator shall conduct a second confirming RF report of
the MPE levels. Full operation of the facility shall not be allowed until the
Director of Development Services has determined that the facility is in
compliance with Federal guidelines. The City may conduct an
independent verification of the results of the analysis provided by the
operator, at the operator's cost.
Resolution No. P -15 -18
Page 5
Upon demonstration, to the satisfaction of the Development Services
Department, that the telecommunications installation is in compliance with
all Federal Guidelines, any balance remaining from the security deposit
shall be refunded to the applicant, upon written request by the applicant.
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. The operator of the facility shall be strictly liable for interference caused by
the facility with City telecommunications systems or other public agency
emergency communication systems. The operator shall stop operations
and determine the cause prior to restarting the facility. The operator shall
be responsible for all labor and equipment costs for determining the
source of the interference, all costs associated with eliminating the
interference (including, but not limited to, filtering, installing cavities,
installing directional antennas, powering down systems, and engineering
analysis), and all costs arising from third -party claims against the City
attributable to the interference.
5. The telecommunications facility shall not be operated in such a manner
that it poses, either by itself or in combination with other such facilities, a
potential threat to public health. To that end, no facility or combination of
facilities shall produce, at any time, power densities within 500 feet of the
facility that exceed the FCC's MPE limits for electric and magnetic field
strength and power densities for transmitters, or any more restrictive
standard subsequently adopted or promulgated by the City, County, State
of California, or the Federal government.
6. If there is any change in the operating characteristics of the facility, a
report pursuant to condition HA of this Resolution shall be submitted to
the Director of Development Services for review and approval. The
Director may also require the operator to prepare an updated RF report,
and pay for a third -party review of that report, as part of any review of this
Conditional Use Permit.
7, Any service light(s) shall only be operated when maintenance is being
performed on the equipment. The service light(s) shall be adequately
shielded and directed away from adjacent roadways.
8. The owner of the telecommunications facility shall remove all of the
communication equipment, and associated structures, approved pursuant
to this permit within 60 days of ceasing operation of the
telecommunications facility.
Resolution No. P -15 -18
Page 6
Section 4: The approval of CUP 14 -009 shall expire on July 21, 2017, 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 prior to its expiration.
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.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway
at a regular meeting this 21st day of July 2015.
G 3
Dave G_rosch, Q@ppty Mayor
ATTEST:
C
Sheila R. Cobian, CMC, City Clerk
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO)
I, Sheila R. Cobian, CMC, City Clerk of the City of Poway, do hereby certify
under penalty of perjury that the foregoing Resolution No. P -15 -18 was duly adopted by
the City Council at a meeting of said City Council held on the 21st day of July 2015, and
that it was so adopted by the following vote:
AYES: LEONARD, CUNNINGHAM, MULLIN, GROSCH, VAUS
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
Ahlo" (� R_
heila R. Cobian, CMC, City Clerk
City of Poway