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Covenant Regarding Real Property 2000-0518911RECORDING REQUEST BY: TO: No Transfer Tax Due 3564 2000-0518911 SEP 28, 2000 9:15 AM FIOIALRE ~ SAN DIE CStlNTY R ~ R'S OFFICE G~BORY . SMITH, T RECORDER EES: I.-0 2000-0518 11 COVENANT REGARDING REAL PROPERTY Poway-Nierman Limited Partnership, PROPERTY OWNER ("OWNER" hereinafter), is th = real property described in Exhibit A which is attached hereto and made a part hereof and which is commonly known as Assessor's Pamel Number 317-153-26 ("PROPERTY" hereinafter). In consideration of the approval of Conditional Use Permit 00- 18 and Minor Development Review 99-133, by the City of Poway ("CITY" hereinafter), OWNER hereby agrees to abide by conditions of 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, encumbrancers, heirs, personal representatives, :t assigns of the respective parties. in the event that Conditional Use Permit 00-18 and Minor Development Review 99- 133 expires or is rescinded by City Council at the request of the OWNER, CITY shall expunge this Covenant from the record title of the PROPERTY. in the event of litigation to enforce the p ' ' =this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other party. Dated: .2 ~ d'C., OWNER: By: Nier~an By: //.-~<.'~..~'~d'./A ,fames S. Nierman Trustee of the James S. Nierman Trust dated May 9, 1990 (Notarize) (]:'cs Nanager) LIMITED GP, LLC, ) CITY OF POWAY Dated: Niall Fritz, Director of DevelOpment Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 3565 County of On personally appeared evid roved to me on the basis of satisfactory ence to be the person~,~,) whose name(1) is/a~e' subscribed to the within instrument and the same in authorized capacity(t~), and that by signature('.~ , ,, or the entity upon behalf of which the person(s) acted, Title or ~ Individual _ Title(s): Partner-- i J Limited ~ General T_ Trustee -- Other: Exhibit A LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL A: PARCEL 3 OF PARCEL MAP NO. 13714, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 12, 1985 AS FILE NO. 85-080780 OF OFFICIAL RECORDS PARCEL B: NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS AND FOR THE PASSAGE OF MOTOR VEHICLES INTO, OUT OF, ON, OVER AND ACROSS THOSE CERTAIN EASEMENTS DESCRIBED IN ARTICLE I OF THAT CERTAIN DOCUMENT ENTITLED "RECIPROCAL MUTUAL ACCESS EASEMENT AGREEMENT' RECORDED JULY 2, 1985 AS FILE NO 85-238010 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. EXHIBIT B RESOLUTION NO. P-00-61 3567 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA APPROVING CONDITIONAL USE PERMIT 00-18 AND MINOR DEVELOPMENT REVIEW 99-133 ASSESSOR'S PARCEL NUMBER 317-153-26 WHEREAS, Conditional Use Permit 00-18 and Minor Development Review 99-133 were submitted by AT&T Wireless Services for the purpose of co-locating 3 ~/s consisting of a total of 6 panel J radio and power cabinets, and a parapet screen to the roof of the Retro Sports building located at 12218 Poway Road, in the Community Business (CB) zone; and WHEREAS, on August 15, 2000, 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, the City Council does hereby follows: :ion 1: The City Council finds that Conditional Use Permit 00-18 and Minor Development Review 99-133 are Categorically Exempt from the 13 ' ' ~the California E iai Quality Act, pursuant to Section 15303(d) of CEQA, Class 3, as they are for the location of a small new facility providing a utility extension to serve th :ling area. Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code for Conditional Use Permit 00-18 to'add facility on the roof of an existing building at 12218 Poway Road in the Community B are made as follows: The proposed project' : with the General Plan and the purpose of the CB zone in that the use is a public facility which is allowed in the CB zone with the approval of a conditional use permit. The location, size, design, and operating characteristics of the use will be compatible with and will not adversely affect or be materially detrimental to, adjacent uses, buildings, structures, or natural as the project is designed to - conceal the equipment and provide adequate screening of the existing and proposed antennas such that it appears to be a part of the existing building, textured and painted to match. The harmony in scale, bulk, coverage, and density' I with adjacent uses because the approved fixtures are small and are not readily visible to adjoining properties. 3568 Resolution No. P~0-61 Page 2 There 3{e public facilities, services, and utilities because the use will be located in a development where all necessary f :ly in place. There will not be a harmful effect upon desire ble neighborhood characteristics as the fixtures will I: :1 from ti; ' :1 are otherwise not ~ any disruptive or ac~ neighbors. The g =tm ffic will not adversely impact the surrounding :l/or the City's Tm nsportation Element as the use will opera te, for the most part, from a remote facility and will require only minimal therefore, frequent trips to the site will not b 'y. Th able for the type and intensity of the use in that it' 'l joining a major artedal madway and installed with' ~ use. Them will be no significant harmful effects up quality and nature I as the facility will not new development on the property. I. Them are no otb mitigated. : negative impacts of the development that cannot be ~n 3: The findin~ lance with Section 17.52 of the Poway Municipal Code for Minor Development Review 99-133 to add facility on the roof of an existing building at 12218 Poway Road, am made as follows: The approved project is t with the Genera I Plan, as public facilities are permitted within the Community Business land use designation with benefit of a conditional use permit. The approved project will not have an adverse aesthetic, health, safety, or architecture Jly related impact upon adjoining properties,.as the design of the fixtures will be compatible with buildings in the vicinity. The approved project encoumges the orderly and h structures and property within the City, as the use is design standards in the neighborhood. appeamnce of with the general - Section 4: Conditional Use Permit 00-18 and Minor Development Review 99-133, to add facility on the roof of an existing building at 12218 Poway Road consisting of a total of 6 panel related radio and power cabinets, and a 4%-foot tall parapet screen, in the Community Business (CB) zone as shown on the plan dated June 16, 2000, are hereby approved, subject to the following conditions: 3569 No. P-o0-61 Page 3 Prior to building the applicant shall comply with the following: Within 30 days of approval, the applicant shall submit in writing that all conditions of approval have been read and understood Within 30 days of approval, the property owner shall execute a Covenant on Real Property. 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 the surrounding residential and uses. ~all depict the use of matching extedor and color on the raised parapet located along the perimeter of the roof, to the sat : the Director of Development Services. The submitted drawings shall b~ th :h the approved plans on file with the Development Services approved CUP 00-18 and MDRA 99-133 plans. The applicant shall comply with the latest adopted Uniform Building Code, Uniform Mechanical Code, National Electric Code, Uniform Fire Code, and all other applicable codes and ordinances in effect at the time of building permit issuance. The operator shall submit calculations specifying the FCC's Maximum Possible Exposure (MPE) levels in inhabited areas within 500 feet of the facility in the areas that the levels produced are projected to be highest. If th '] I :180% of the MPE limits, the applicant shall hire a qualified electrical engineer licensed by the State of California 1 exposure levels at the location after the facility is in operation. A report of th :1 the engineer's findings with respect to compliance with MPE limits shall be submitted to the Director of Development Services. The facility shall not normal operations until it complies with or has been modified to comply with this standard. Proof of compliance shall _ be a certification provided by the engineer who prepared the original report. In order to assure the objectivity of the analysis, the City may require, at the applicant's expense, independent verification of the results of the analysis. The building plans shall depict the parapet as 4~ feet high and height of the proposed 6 7 feet high. 3570 Resolution No. P-00-61 Page 4 31ishment of the use the applicant shall: The applicant shall comply with the Poway Municipal Code and the latest adopted Uniform Building Code, Uniform Mechanical Code, Uniform Plumbing Code, National Electric Code, Uniform Fire Code, and all other applicable codes and ordinances. All conditions of approval contained herein shall be completed to the sa1 ! the Director of Development Services. The applicant shall occupy minimal roof space so that other sites can co- locate at the same location with a minor review to the satisfaction of the Director of Development Services. The parapet and tdm shall be painted and textured to match the building and the exposed ~all remain a white neutral color so that visibility of the antenna will not he. visible from Poway Road. Upon establishment of th the applicant shall comply with the following: facility, pursuant to CUP 00-18, The use of the subject property for the purpose of a cellular site shall expire upon issuance of any demolition permits or removal of the subject building. If the applicant desires to obtain approval for use of the new building(s) on this site for cellular including interim use, a ' ' to this CUP shall be required. All f :1 related equipment, including the parapet shall be ~ in good repair. Any damage from any cause shall be repaired as soon as reasonably possible so as to ' ' of dangerous condil' blight. The facility shall be operated in such a manner to minimize any possible disruption caused by noise. Backup g shall only be operated during periods of power outages and shall not be tested on weekends or _ holidays, or between the hours of 10:00 p.m. and 7:00 a.m. on weekday nights. At no time shall equipment noise from any ~ the noise standard :1 in the Poway Municipal Code. Th 3erator of the facility shall routinely and regularly inspect the site t 31lance with the standards set forth in this permit. 957! No. P-oo- Page 5 The operator of the facility shall be strictly liable for interr -I by their facilities with City systems or other public agency ! iion systems. The operator shall be responsible for all labor and equipment costs for determining th =the interference, all -I with eliminating the interference (including but not limited to filtering, installing cavities, installing directional powering down systems, and engineering analyses), and all costs arising from third party claims against the City attributable to the interference. Th I 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 in any inhabited area that exceeds the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive standard subsequently adopted or p J by the City, County, State of California, or the federal g I. If there is any change in the manner in which the facility is operated or change in the MPE, a report pursuant to Condition E.5 of this resolution shall be submitted to the Director of Development Services for :1 approval. .7. No permanent sign shall be allowed in the raised 4~ foot high parapet and any future sign shall comply with the currently adopted Comprehensive Sign Program unless the comprehensive sign program has been modified and approved by the City Council to allow signage in the raised parapet area. This Conditional Use Permit may be subject to annual review as determined by the Director of Development Services for compliance with the conditions of approval and to add that may h -t dudng the pdor year. Section 5: Th =th shall remove all of th to this permit within 60 days of ceasing operation of the antenna(s). 3proved pursuant Section 6: The approval of CUP 00-18 and MDRA 99-133 shall expire on August 15, 2002, at 5:00 p.m. unless prior to that time a building permit has been issued and construction on the property' the project approval h :1 prior to its expiration. 35?2 No. P- 00-61 Page 6 PASSED, APPROVED AND ADOPTED by the City Council of the City of Poway, State of California, at a reg ' 3 this 15th day of August, 2000. A1-FEST: oples, City Clerl{ Robert Emery, ;epu~em STATE OF CAU~"~RNIA ) )SS. COUNTY OF SAN DIEGO ) I, Lori Anne Peoples, City Clerk of the City of Poway, do hereby certify, under the penalty of perjury, that the foregoing No. P- 00-61 , was duly adopted by the City Council at a meeting of said City Council held on the 15th day of August, 2000, and that it was so adopted by the following vote: AYES: EMERY, GOLDBY, REXFORD NOES: NONE ABSTAIN: NONE ABSENT: CAFAGNA, HIGGINSON 'EodlAnne ~e~ples, City Clerk City of Poway