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Covenant Regarding Real Property 2017-01758681q RECORDING REQUEST BY CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY CA 92074-0789 APN: 317-225.04 DOC# 2017-0175868 I IIIII IIII IIIII IIIII IIII 111111 IIIII IIIII IIIII ILII III IIIII II�IIII Apr 19, 2017 02:51 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $42.00 PAGES. 10 (This space for Recorders Use) COVENANT REGARDING REAL PROPERTY Harsch Investment Properties, LLC, a Oregon limited liability company ("OWNER" hereinafter), is the owner of real property commonly known as 12544 Kirkham Court ("PROPERTY hereinafter) and more fully described as: Parcels 4 and 5 of Parcel Map No. 15618, 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 24, 1989, as instrument No. 89-152071 of official records. In consideration of the approval of Conditional Use Permit (CUP) 15-007 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 In the event that CUP 15-007 expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 15-007, upon the request of the OWNER the City shall expunge this Covenant from the record title of the PROPERTY and CUP 15-007 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 Investment Properties, LLC Dated: Z / (Nura*ize) Its: SR, cl/j 2bl CITY OF P WAYDated: I G By' W' A YZ�) "Rabert J Mani , Di ect rDev lopment Services n-D3y CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 3(" yN D�P�� ) On rel,,3ZOP before me, (ACZK re- I )Sot Li Date , Here Insert Ti Name an tle of the Officer V personally appeared A,CLVy\H _ V,0dgW4(,A TV. — Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(*"whose name(s)'is/aFe subscribed to the within instrument and acknowledged to me that he/ehekhey executed the same in his/ko44hi5—irauthorized capacity(>i<and that by his/4eW4heirsignatureWon the instrument the personw or the entity upon behalf of which the person(sKacted, executed the instrument. J R. MCINTYRE EWCommission No. 2037800 i a NOTARY PUBLIC - CALIFORNIAv SAN DIEGO COUNTY Commas,m Erpres August l% 2017 Place Notary Seal Above 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/i Signature of 'rotary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: vLnO�, Number of Pages: Signer(s) Capacity(ies) Claimed by Si ner(s) Signer's Name:(: ;X -Corporate Officer — Title(s):9R q_0 ❑ Partner — ❑ Limited ❑ General D Individual D Attorney in Fact ❑ Trustee D Guardian or Conservator ❑ Other Signer Is Representing: ROM 1WKJ NU1A F PYowrYttitS I l l-.0 Date: 4 5. Signer's Name: ❑ Corporate Officer — Title(s): D Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other Signer Is Representing: 02014 National Notary Association • www.Nationa]Notary.org • 1 -800 -US NOTARY (1-800-876-6827) Item tl5907 EXHIBIT A REAL PROPERTY DESCRIPTION PARCEL A. PARCELS 4 AND 5 OF PARCEL MAP NO 15618, 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 24, 1989, AS INSTRUMENT NO 89-152071 OF OFFICIAL RECORDS PARCEL B• LOT 8 OF THE CITY OF POWAY TRACT NO 85-04, UNIT 1, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEROF NO 11742, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 9, 1987 APN: 317-225-04, 317-225-05 AND 317-224-01 RESOLUTION NO P-15-25 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA APPROVING CONDITIONAL USE PERMIT (CUP) 15-007 ASSESSOR PARCEL NUMBER 317-225-04 WHEREAS, CUP 15-007 was submitted by Monica Swing for Verizon Wireless (Applicant)/RREEF America REIT II Corp JJ (Owner) to modify an existing wireless antenna facility at 12544 Kirkham Court in the Light Industrial (LI) Land Use Designation area of the South Poway Specific Plan(SPSP) The modifications consist of- (1) splitting an existing roof -mounted antenna sector with ten antennas into two sectors with five antennas each that would exceed 6 feet in height above the roofline with the south -facing sector being screened by a parapet, and the north -facing antennas consisting of slim profiled, white antennas that are mounted individually to the roof (north facing sector); (2) replacing one antenna in each of the new sectors and replacing a third antenna contained within an existing wall -mounted sector; (3) adding three roof -mounted remote radio units (RRUs); and (4) adding two new ground -mounted cabinets within an existing equipment enclosure and adding six surge demarcation junction boxes, and WHEREAS, on September 15, 2015 and October 20, 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 2015 CEQA Guidelines, in that the project involves the installation and replacement of small equipment to an existing telecommunications facility, which 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 15-007 to modify an existing wireless antenna facility at 12544 Kirkham Court in the LI Land Use Designation area of the SPSP consisting of splitting an existing roof -mounted antenna sector with 10 antennas into two sectors with five antennas each that would exceed 6 feet in height above the roofline, replacing three antennas, adding three RRUs, and adding two new ground -mounted cabinets within an existing equipment enclosure, and adding six surge demarcation junction boxes as follows. A. The proposed location, size, design, and operating characteristics of the proposed modification to an existing 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, including, Resolution No. P-15-25 Page 2 but not.limited to, City Wireless Communications Policy in that the facility has been designed and sited such that it will not result in visual impacts to the surrounding community B. The location, size, design, and operating characteristics of the proposed modified 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 two roof -mounted antenna sectors will be either screened from view by a parapet (south facing sector) or consist of slim profiled antennas mounted individually to the roof (north facing sector) such that they will not result in visual impacts to the surrounding community, and the antennas in the third antenna sector are wall -mounted and will be painted to match the wall. The use will comply with Federal Communications Commission (FCC) design and operational standards. C The proposed modified telecommunications facility is in harmony with the scale, bulk, coverage, and density of, and is consistent with, adjacent uses in that the antennas will be located on the roof of an industrial building and will be screened from view by a parapet or of a slim design, or be wall -mounted and painted to match the wall to which they are attached. D There are adequate public facilities, services and utilities available at the subject site to serve the proposed modified telecommunications facility E. There will not be a harmful effect upon the desirable surrounding property characteristics in that the proposed modified telecommunications facility is located on an industrial 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 modified 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 an existing industrial building 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 modified telecommunications facility is located on an existing industrial building and does not involve the removal of natural habitat resources. There are no relevant negative impacts associated with the proposed modified telecommunications facility that cannot be mitigated in that the facility will comply with FCC design and operational standards Resolution No P-15-25 Page 3 J That the potential impacts, and the proposed location, size, design, and operating characteristics of the modified 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 industrial building, will be screened from view by a parapet, or of a slim design, or painted to blend in with the existing building, and will comply with FCC design and operational standards. K. The proposed modified telecommunications facility will comply with all the applicable provisions df Chapter 17 48 PMC, in that the facility has been designed and sited such that Pwill not result in visual impacts, and will comply with FCC design and operational standards. Section 3. The City Council hereby approves CUP 15-007 to modify an existing telecommunications antenna facility and to allow antennas to exceed 6 feet in height above the roofline at 12544 Kirkham Court in the LI Land Use Designation area of the SPSP as shown on the approved plans and photo simulations 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. Resolution No. P-15-25 Page 4 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 15-007 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 15-007 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 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 and Option 3 of the photo simulations presented to the City Council on October 20, 2015 on file in the Development Services Department and the conditions contained herein. A final inspection from the appropriate City departments will be required 3 The building plans shall call out that all existing and proposed wall -mounted antennas, frame and associated equipment shall be painted to match each other and the wall background. The antennas and associated framing and equipment along the south wall shall be painted to match the screen. The antennas along the north wall shall be painted white. 4 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 5 The antennas shall not be activated for use until the Building Division conducts a final inspection of the structure. 6 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 15-007, the following shall apply- Resolution No P-15-25 Page 5 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 engineers 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. 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 Resolution No. P-15-25 Page 6 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 H.1 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 Section 4. The approval of'CUP 15-007 shall expire on October 20, 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 20th day of October 2015 Steve Vaus, Mayor ATTEST Sheila R. Cobian, CMC, City Clerk Resolution No P-15-25 Page 7 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-15-25 was duly adopted by the City Council at a meeting of said City Council held on the 20th day of October 2015, and that it was so adopted by the following vote AYES LEONARD, CUNNINGHAM, MULLIN, GROSCH, VAUS NOES NONE ABSENT NONE DISQUALIFIED- NONE Sheila'R. Cobian, CMC, City Clerk City of Poway