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Covenant Regarding Real Property 2017-0302987N RECORDING REQUEST BY CITY OF POWAY WHEN RECORDED MAIL TO CITY CLERK CITY OF POWAY P O BOX 789 POWAY CA 92074-0789 APN: 314-212.07 CUP 16.012 DOC# 2017-0302987 IDI VIII I III I VIII II II III III I III I 111111111111111111111011111111 Jul 05, 2017 03:32 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $51.00 PAGES: 13 (This space for Recorders Use) COVENANT REGARDING REAL PROPERTY CoxCom, Inc., ("OWNER" hereinafter) is the owner of real property commonly known as 14016 Midland Road ('PROPERTY hereinafter) and more fully described as: Lot 24 in Block 16 of Piermont, in the City of Poway, County of San Diego, State of California, according to Map thereof No. 331, filed in the Office of the County Recorder of San Diego County, May 27, 1887. In consideration of the approval of Conditional Use Permit (CUP) 16-012 by the City of Poway ("CITY" hereinafter), OWNER hereby agrees to abide by the conditions of approval contained in the attached Resolution (Attachment 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 In the event that CUP 16-012 expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 16-012, upon the request of the OWNER the CITY shall expunge this Covenant from the record title of the PROPERTY and CUP 16-012 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 OR AUTHORIZED AGENT: �/ Dated: Lc z ( ZO7 7 " A oxCom, Inc. (Notarize) CITY OF OWAY: Dated: 647By: o ert J. Manis, irec orvelop ent Services 11-b5o 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 '7�.� ) County of !7 .1.� V1 5::A Z) p) J, r p 1_ On 52 1 G oZ % 1a O t i before me, IL°�r ^^�— C k�ct 5 N o,"^`� YV lv � I G Date Here Insert Name and Title of the Officer personally appeared Names) of who proved to me on the basis of satisfactory evidence to be th rsonW whose name(S) Iaryr (bscr'bed to the within instrument and acknowledged to me that WsWt" executed the same in h'rh�rAhCr authorized capacity(let), and that by4ii V/ ar/t*r signaturewon the instrument the person(sj or the entity upon behalf of which the persona acted, executed the instrument. RAHIMA CLEVERS` Commbsliin 4 209J880" Z -: Notuy Publlc . California . Z San Di go County Comm. Ex fres Jan 13, 2019+ 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 Signature of Notary 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: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: O Corporate Officer — Title(s): ❑ Partner — O Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other. Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): O Partner — O Limited O General ❑ Individual ❑ Attorney In Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Attachment A RESOLUTION NO. P-17-08 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT (CUP) 16-012, VARIANCE (VAR) 16-007, AND DEVELOPMENT REVIEW (DR) 16-019 ASSESSOR'S PARCEL NUMBER 314-212-07 WHEREAS, Conditional Use Permit (CUP) 16-012, Variance (VAR) 16-007, and Development Review (DR) .16-019 were submitted by Michael Baker International, ApplicanUCoxCom, Inc., Owner, to expand the existing Cox Communications facility located at 14016 Midland Road within the Commercial General (CG) zone and Old Poway Specific Plan (SP 88-01) area. The proposed expansion includes the demolition of existing structures on the site, the construction of two new two-story buildings totaling approximately 5,120 square feet, replacement of emergency generators, deletion of on- site parking spaces, and a request for a Variance to allow a 42 percent lot coverage when the maximum allowed for the CG zone is 30 percent; and WHEREAS, on June 6, 2017, the City Council held a duly advertised public hearing to solicit comments from the public, both for and against, 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 from the California Environmental Quality Act (CEQA) as a Class 32 Categorical Exemption, pursuant to Section 15332, in that the project is an in -fill development within an urbanized area, is consistent with the General Plan and Zoning regulations except for exceeding the allowable lot coverage for which a Variance can be granted, and does not cause any significant effects related to traffic, noise, air quality or water quality. The requested Variance is Categorically Exempt from CEQA as a Class 5 Categorical Exemption, pursuant to Section 15305 in that it involves a minor exception to the lot coverage limitations on a level piece of property and does not change the existing use of the property. Section 2: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code (PMC), for CUP 16-012 to expand the existing Cox Communications facility located at 14016 Midland Road within the Commercial General (CG) zone and Old Poway Specific Plan area, are made as follows: A. The location, size, design, and operating characteristics of the proposed expanded use are in accord with the title and purpose of Chapter 17.48 PMC (Conditional Use Permits Regulations), the General Plan, and the development policies and standards of the City in that a telecommunication facility is allowed in the CG zone with a CUP and the project has been designed consistent with design standards and guidelines of the Old Poway Specific Plan. Resolution No. P-17-08 Page 2 B. The location, size, design, and operating characteristics of the proposed use 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 project consists of an expansion an existing telecommunications facility that will be in an architectural style consistent with the Old Poway area, will be operated similar to the existing facility, except that alley access will be used less often, parking for the facility will occur primarily along the street, and the testing of emergency generators will be limited to late afternoon hours. C. The proposed use is in harmony with the scale, bulk, coverage, and density of, and is consistent with the surrounding development, in that the project consists of an expansion to an existing telecommunications facility which will have a smaller footprint, bulk and mass compared to the adjacent AT&T building and the facility has been designed to comply with all of the development standards of the zone, except as provided for by the proposed Variance as discussed below. D. There are adequate public facilities, services and utilities available at the subject site to serve the proposed use. E. There will not be a harmful effect upon desirable neighborhood characteristics in that the design of the facility would be consistent with the architectural style called for in the Old Poway Specific Plan area and the operation of the existing and proposed expanded facility will be similar manner except that alley access will be used less often, parking for the facility will occur primarily along the street, and the testing of emergency generators will be limited to late afternoon hours. 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 this is an unmanned facility requiring only periodic maintenance which generally can be accommodated using adjacent on -street parking spaces during times when those spaces are typically not in use. G. The site is suitable for the type and intensity of use and development in that the project site is already developed with a telecommunications facility and the expansion will not generate additional traffic and will decrease the use of the adjacent alley for access. H. There will not be significant harmful effects upon environmental quality and natural resources in that the site is currently fully developed and contains no natural habitat. Existing trees will be preserved. The proposed project will comply with City noise standards in that the proposed emergency generators will be tested during late daytime hours only and will be located within custom sound enclosures designed to attenuate the generator noise levels. There are no relevant negative impacts of the proposed use that cannot be mitigated. Resolution No. P-17-08 Page 3 J. That the impacts, as described in subsections A through I of this Section, and the proposed location, size, design, and operating characteristics of the proposed use 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. K. That the proposed conditional use will comply with each of the applicable provisions of this title, except for an approved variance. Section 3: The findings, in accordance with Section 17.50.050 of the PMC, to approve VAR 16-007 to allow an approximate 42 percent lot coverage when 30 percent is the maximum allowable lot coverage for properties in the CG zone, are made as follows: A. That there are special circumstances applicable to the property and because of this, the strict application of the Zoning Ordinance deprives the property of privileges enjoyed by other properties in the vicinity with the identical zoning classification. The site is small relative to the facility's needs to provide service and the project site is located adjacent to another utility switching station with a larger building footprint and lot coverage greater than 30 percent. B. That granting the Variance is necessary for the preservation and enjoyment of a substantial property right enjoyed by other property owners in that the neighboring AT&T building also underwent a large expansion and its lot coverage also exceeds 30 percent. C. That granting the Variance would not be materially detrimental to the public health, safety, or welfare in that the building footprint and mass of the proposed two-story buildings will visually blend in with the backdrop provided by the existing two-story AT&T building, the existing facility is screened by a 12 -foot high fence and therefore already gives the appearance of a greater than 30 percent lot coverage, and the architectural style fits in with the surrounding development. D. That granting of this Variance does not constitute a special privilege that is inconsistent with the limitation upon other properties in the vicinity and zone in that the neighboring AT&T building underwent an expansion and has a similar lot coverage. E. That granting the Variance would not allow a use or activity not otherwise expressly authorized by the CG zone because a telecommunications facility is permitted with approval of a CUP. F. That the proposed Variance will be compatible with the City's General Plan because the use is permitted with a CUP and does not result in a density increase. Section 4: The findings for DR 16-019, in accordance with PMC 17.52.010 Purpose of Development Review, are made as follows: Resolution No. P-17-08 Page 4 A. The project respects and recognizes the interdependence of land values and aesthetics to the benefit of the City in that it has been designed to be architecturally compatible and in scale with the neighboring commercial development to the south and to the west. B. The project has been designed to minimize impacts on surrounding development in that the design, and exterior finishes and colors are consistent with the Old Poway Specific Plan standards, and are compatible with the surrounding commercial buildings. Therefore, the proposed development respects the public concerns for the aesthetics of development, and encourages the orderly and harmonious appearance of structures and property within the City. C. The granting of the DR would not be materially detrimental to the public health, safety, or welfare within the community since the proposed project involves the expansion of an existing telecommunications facility whose operations will be similar to the existing facility except that alley access will be used less often, parking for the facility will occur primarily along the street, and the testing of emergency generators will be limited to late afternoon hours. D. The proposed development respects the public concerns for the aesthetics of development in that it will incorporate architectural standards of the Old Poway Specific Plan that tie well into the architecture of nearby Old Poway Village Center and the proposed building mass is consistent with that of the neighboring two-story AT&T building. E. The project will not have an adverse effect on the aesthetics, health, and safety, or an architecturally -related impact upon adjoining properties, in that the proposed development contributes to the aesthetic of the Old Poway area and ties well into the architecture of nearby Old Poway Village Center and the mass of the neighboring two-story AT&T building. F. The design of the proposed development is consistent with all elements of the Poway General Plan, as well as conforming with the applicable provisions of the Zoning Code and Old Poway Specific Plan. The portions of the building which are over 35 feet high will have architectural authenticity and a historical profile characteristic of Old Poway. Section 5: The findings, pursuant to Government Code Section 66020 for the public improvements, are needed as a result of the proposed development to protect the public health, safety, and welfare are made as follows: A. The design and improvements of the proposed development are consistent with all elements of the Poway General Plan, as well as City Ordinances, because all necessary facilities will be available to serve this project. Resolution No. P-17-08 Page 5 B. In accordance with the Poway General Plan, the project requires the payment of development impact fees, which are assessed on a pro -rata basis to finance public infrastructure improvements, which promote a safe and healthy environment for the residents of the City. In accordance with the Poway General Plan, the project requires the payment of fire, sewer, and traffic fees, which are assessed on a pro -rata basis to finance public infrastructure improvements, which promote a safe and healthy environment for the residents of the City. Section 6: The City Council hereby approves CUP 16-012, VAR 16-007, and DR 16-019 to expand the existing Cox Communications facility located at 14016 Midland Road within the Commercial General (CG) zone and Old Poway Specific Plan area. The proposed expansion includes the demolition of existing structures on the site, the construction of two new two-story buildings totaling approximately 5,120 square feet, replacement of existing emergency generators, removal of on-site parking spaces, and a request for a Variance to allow a 42 percent lot coverage when the maximum allowed for the CG zone is 30 percent 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 conductits 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, VAR, and DR 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-17-08 Page 6 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 16-012, VAR 16-007, and DR 16-019 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. CUP 16-012 may be 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. The applicant shall obtain a Building Permit prior to expanding 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 applicant shall contact the Poway Unified School District (858) 679-2570) to verify if school impact fees are required. If required, the fees shall be paid at the rate established at Building Permit issuance. 3. The site shall be developed in accordance with the approved plans on file in the Development Services Department and the conditions contained herein. 4. The applicant and/or their contractor shall obtain a Right -of -Way permit from the Engineering Division for any work to be done in the public street right- of-way, City held easements or City owned property. All applicable permit fees shall be paid prior to permit issuance. The plan submitted to the Engineering Division shall be submitted to and stamped approved by the Planning Division prior to submittal. 5. A minimum cash security for erosion control for $2,000 is required. 6. The applicant shall attend a pre -construction meeting at the Department of Development Services. The scheduling request shall be submitted on a City standard form available from the City's project engineer. The applicant's action plan that identifies measures to be implemented during construction to address erosion, dust control, sediment and pollution control will be discussed. Compliance for sediment control shall be provided as directed by the project inspector. Resolution No. P-17-08 Page 7 7. Erosion control shall be installed and maintained by the developer from October 1 to April 30 annually. The developer shall maintain all erosion control devices throughout their intended life. 8. The applicant shall pay the storm water pollution inspection fee according to the latest adopted master fee schedule. The current fee amount is $2,636. 9. The applicant shall pay all applicable development impact fees in effect at time of permit issuance. Listed below are estimates of the current applicable fees and amounts: a. Traffic $17,300.40 b. Sewer $1,459.00 c. Fire $403.83 10. The planter landscaped and maintained by City located along Midland Road in front of the project site shall be protected during construction. Notes to that effect shall be shown on the building plans. 11. Landscape and irrigation plans shall be submitted and approved for proposed new and refurbished landscape areas. The landscape and irrigation plans shall demonstrate compliance with the City of Poway Landscape and Irrigation Design Manual, Chapters 17.07 and 17.41 of the PMC, and all other applicable standards in effect at the time of landscape .and irrigation plan check submittal. This includes but is not limited to the submittal of an irrigation audit report, pursuant to Section 17.41.110 of the PMC, prior to final inspections/issuance of a Certificate of Occupancy. The landscape and irrigation plan submittal is a separate submittal from other project plan check submittals, and is made directly to the Planning Division. Contact the Planning Division for copies of applicable City standards, the landscape and irrigation plan submittal checklist and the plan review fee worksheet. Landscape and irrigation plan review fees are required and are the responsibility of the applicant. Any landscaped areas within the adjacent public right-of-way shall be permanently and fully maintained by the owner. Any existing irrigation and landscaping within any designated Landscape Maintenance District (LIVID) and Land Development Association areas shall be protected. 12. Submit a report from a certified arborist regarding necessary protective measure to be installed and maintained on the site to protect nearby sycamore trees whose canopies extend into the zone of the area of proposed work. These measures shall be included on the building plans. Resolution No. P-17-08 Page 8 13. The building plans shall show emergency generators, air conditioning units, and enclosures consistent with the Cox Poway Expansion - Noise Technical Memorandum dated April 20, 2017 and prepared by Michael Baker International to the satisfaction of the Director of Development Services. 14. The building plans shall include elevations and cross sections that show all roof appurtenances, including air conditioning, architecturally integrated, screened from view, and sound buffered from adjacent properties and streets, to the satisfaction of the Director of Development Services. 15. The exterior colors and materials shall be consistent with the Old Poway Specific Plan and the color and material board submitted with the application to the satisfaction of the Director of Development Services. Any modifications to the color and materials sample board shall be submitted for review and approval by the Planning Division. H. The applicant shall comply with the following fire safety requirements, to the satisfaction of the Fire Marshal: The applicant is required to meet all applicable Poway Municipal Code and California State Fire and Building Codes for this project. The applicant is encouraged to contact the Division of Fire Prevention at (858) 668-4473 to set up a meeting prior to submitting building plans in order to review project requirements. 2. Roof covering shall be fire retardant as per Section 15.04.050 of the Poway Municipal Code, and City of Poway Ordinance No. 64 and its amended Ordinance No. 526. 3. The building shall display their numeric address in a manner visible from the access street. Minimum size of the building numbers shall be six inches on the front facade of the building. Building address shall also be displayed on the roof in a manner satisfactory to the Director of Safety Services, and meeting Sheriffs Dept. -ASTREA criteria. 4. Proposed elevator shall be constructed to accommodate a medical -sized gurney as defined in the California Building Code. ' Rack storage in excess of eight -feet in height requires a building department permit for installation. 6. Material safety data sheets shall be required for all hazardous and/or toxic substances used in each building. An Emergency Contingency Plan and Hazardous Materials Disclosure shall be filed with the County of San Diego Department of Health and copies provided to the Fire Department. Resolution No. P-17-08 Page 9 8. N.F.P.A. Standard 704, Hazardous Materials Labeling, shall be provided as necessary throughout the building, when applicable. 9. Permanent access roadways for fire apparatus shall be designated as "Fire Lanes" with appropriate signs and curb markings. Prior to issuance of the Certificate of Occupancy: 1. 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 appropriate City departments will be required. (Engineering) 2. All utility services shall be installed, and completed by the property owner, and inspected and approved by the Engineering Inspector. All new utility services shall be placed underground. 3. An adequate drainage system shall be provided around the building pad capable of handling and disposing all surface water to the satisfaction of the Engineering Inspector. 4. The applicant shall repair, to the satisfaction of the City Engineer, any and all damage to public improvements caused by construction activity from this project. (Planning) 5. Landscaping shall be installed per the approved landscape plans. It applicable, an irrigation audit report shall be submitted, pursuant to Section 17.41.110 of the PMC. J. Upon establishment of the expanded telecommunications switching station, pursuant to CUP 16-012, VAR 16-007, and DR 16-019, the following shall apply: 1. The use of the facility shall be limited to activities as described in the application. 2. The activities of the facility shall not occur in such a manner as to create adverse impacts on the circulation and parking on surrounding public streets. 3. The facility shall be operated in such a manner as to minimize any possible disruption caused by noise, and shall comply with noise standards contained in Chapter 8.08 of the PMC. At no time, shall noise from any source exceed the noise standards defined in the PMC. Testing of the emergency generators shall be limited to between 3 p.m. and 7 p.m. in accordance with the Cox Poway Expansion - Noise Technical Resolution No. P-17-08 Page 10 Memorandum dated April 20 ,2017 and prepared by Michael Baker International on file with the City. 4. Use of the alley way as access to the facility shall be kept at a minimum and shall be done in a manner that minimizes dust. 5. The owner or operator of the facilities shall routinely and regularly inspect the site to ensure compliance with the standards set forth in this Permit. 6. Any signs proposed for this development shall be designed and approved in conformance with the Poway Municipal Code and require the approval of a separate Sign Permit. 7. All landscaping, including areas 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 Manual. 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 percent of the trees' leaf surface. Section 7: The approval of CUP 16-012, VAR 16-007, and DR 16-019 shall expire on June 6, 2019, 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. Section 8: Resolution No. P-09-035 approving CUP 09-03 approving the establishment of the Cox telecommunication facility at 14016 Midland Road is hereby rescinded, effective upon establishment of the use in reliance of the approval of CUP 16- 012, VAR 16-007, and DR 16-019. Section 9: 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-17-08 Page 11 PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway, California, at a regular meeting this 6th day of June 2017. teve Vaus, Mayor ATTEST: a cy eu eld, C C, City Clerk STATE OF CALIFORNIA ) )SS COUNTY OF SAN DIEGO) I, Nancy Neufeld, City Clerk of the City of Poway, California, do hereby certify under penalty of perjury that the foregoing Resolution No. P-17-08 was duly adopted by the City Council at a meeting of said City Council held on the 6th day of June 2017, and that it was so adopted by the following vote: AYES: GROSCH, MULLIN, LEONARD, VAUS NOES: CUNNINGHAM ABSENT: NONE DISQUALIFIED: NONE nA� ncyM6q eld CM , City Clerk City of Poway