Covenant Regarding Real Property 1991-0449272
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03-SEP-1991 08=45
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CITY CLERK
CITY OF POWAY
P.O. BOX 789
POWAY, CA 92064
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OFFICIAL RECCxDS
SAk DIEGO COUNTY RECORDER'S OFrICE
ANNETTE EUANS, COUNTY RECORDER
RF ~ 18. 00 ~EES~
AF~ 31.00
MF: 1. 00
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RECORDING REQUEST BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
No Transfer Tax Due
(This soace for Recorder's Use)
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COVENANT REGARDING REAL PROPERTY
CALMAT CO., a Delaware Corporation ("OWNER" hereinafter) is
the owner of real property described in Exhibit A which is
attached hereto and made a part hereof and which is commonly
known as Assessor's Parcel Number 320-031-04 ("PROPERTY" herein-
after). In consideration of the approval of Conditional Use
Permit 89-05 by the City of poway ("CITY" hereinafter), OWNER
hereby covenants and agrees for the benefit of CITY, 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,
successors, heirs, personal representatives, transferees and
assigns of the respective parties.
In the event that Conditional Use Permit 89-05 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rescinded by City Council, at the request of the OWNER, CITY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.
Dated:
::TY OF PO::~ ~ ad;-
(N~O notar;,o)
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LEGAL DESCRIPTION
ASSESSOR'S PARCEL BOOK 320 PAGE 031 PARCEL 4
That portion of the east half of the northeast quarter of section
25, Township 14 South, Range 2 West, San Bernardino Meridian, in
the City of Poway, County of San Diego, State of California
according to united States Government Survey, lying northerly of
the northerly boundary of Record of Survey Map No. 6420, filed in
the office of the County Recorder of San Diego County, July 8,
1964. (65.92 acres MIL)
Exhibit A
GtNtHAL ALKNUWLtUGMtNI
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* State of
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.... ~ 6 * * * * * * * * * * * * * *
19 before me, *
On this the ____day of
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the udersigned Notary Public, personnally appeared
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be the person(s) whose name(s)
the within instrument, and acknowledged
executed it.
WITNESS my hand and official seal.
of satisfactory evidence
subscribed
that
* Notary's Signature *
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PARTNERSHIP ACKNOWLEDGMENT
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County of
On this the ____day of
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before me, *
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the udersigned Notary Public, personnally appeared
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to be the person(s) who executed the within instrument
on behalf of the partnership and acknowledged to me that
the partnership executed it.
WITNESS my hand and official seal.
* Notary's Signature *
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CORPORATE ACKNOWLEDGMENT
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~ personally known to me
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be the person(s) who executed the within instrument as *
or on behalf of the corporation *
therein named, and acknowledged to me that the corporation~
executed it. *
WITNESS my hand and offjfial seal. :
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Notary's Signature *
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* State of
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California
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NllSA A. C~UGMAN
Notory Pub:ic-Ccllfornla
LOS ANGELES COUNlY
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On th is the l2...... day of Auqust
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Nilsa A. Bruqrnan
the udersigned Notary Public, personnally appeared
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Gene R. Block
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RESOLUTION NO. P-9l-48R
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 89-05
ASSESSOR'S PARCEL NUMBER 320-031-03, 04, 06
WHEREAS, Conditional Use Permit 89-05, submitted by CalMat,
applicant, for the purpose of continuing and expanding the
aggregate operation on the real property situated in the City of
poway, County of San Diego, State of California, described as a
portion of the west half and a portion of the east half of the
northeast quarter of Section 25, Township 14 South, Range 2 west,
San Bernardino Meridian, regularly came before the City Council for
public hearing and action on July 23, 1991; and
WHEREAS, the Director of Planning Services has recommended
approval of the conditional use permit subject to all conditions
set forth in the Planning Services Department report; and
WHEREAS, the City Council has read and considered said report
and has considered other evidence presented at the public hearing.
NOW, THEREFORE, the City Council of the City of poway does
hereby resolve as follows:
Section I: Environmental Findinqs:
The City Council found on August 7, 1990 that the proposed
conditional use permit is a component of the CalMat-Poway
project for which a Final Subsequent Environmental Impact
Report (SCH t89010025) for the subject project was reviewed
and considered by the City Council and was certified as
complete and adequate for the proposed conditional use permit
by Council Resolution 90-163. The Final Subsequent EIR
concluded that the project would result in unmitigated impacts
that would warrant overriding considerations in the event of
Council approval.
Statement of Overridinq Considerations
It was further found and determined pursuant to Sections 15092
and 15093 of the State CEQA Guidelines that the impacts on
landform/aesthetics and biology are partially mitigated and
that the remaining significant impacts on landform/aesthetics
and biology are acceptable due to overriding considerations,
in that the benefits of the project outweigh the remaining
impacts. The facts supporting this finding are as follows:
1. The project implements the South poway Planned Community
which preserves the existing extractive operation and
contains provisions for expanding the extractive area and
continuing the extractive activity.
2. The project will implement an environmentally sensitive
reclamation plan that will prepare the site for ultimate
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Resolution No. P-9l-48R
Page 2
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open space and light industrial land uses consistent with
the South poway Planned Community.
3. The project will construct an on-site access road which
will divert proj ect-related traffic away from Beeler
Canyon Road and the adjacent residential neighborhood.
4. The proj ect provides beneficial use of the underlying
regionally significant MRZ-2 aggregate resource.
Aggregate is an important resource to the community and
region used in construction. In 1984, the City Council
recognized the need to designate areas for construction
aggregate to service future development in northern San
Diego County over the next 50 years.
5. Allowing the continued extraction of aggregate at the
CalMat-Poway site would reduce regional impacts to air
quality, energy, traffic, utilities, and economics,
resul ting from the increased travel distance and cost
should an alternate site be selected.
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6.
The project implements partial mitigation of the impact
on a regionally significant mineral resource (aggregate)
by the development of the South poway Industrial Park.
7. The project will maintain and generate long-term
employment opportunities within the City of poway.
8. The project will generate fees, taxes and other recurring
revenues which will exceed the cost of the City providing
services to the project.
Section 2: Findinqs:
The City Council makes the following findings in regard to
Conditional Use Permit 89-05.
1. That the location, size, design, and operating
characteristics of the proposed use will be conditioned
to be compatible with and will not adversely affect or be
materially detrimental to adjacent uses, residents,
buildings, structures, or natural resources, in that the
conditions of approval and mitigation monitoring program
will insure compatibility with the neighboring property
owners. The conditional use permit implements the South
poway Planned Community which designates the site as an
ongoing extractive operation with the potential for
expansion. The ultimate land uses are designated as Open
Space for the lower elevations of the site and Light
Industrial for the upper elevations within the South
poway Industrial Park.
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Resolution No. P-9l-48R
Page 3
2. That the harmony and scale, bulk, coverage, and density
is consistent with adjacent uses in that the property
represents 3.3 to 6.6 percent (83 to 166 acres) of the
2,500 acre planned community [which is designated as
having regionally-significant mineral resources].
Existing landform and canyon floor vegetation shield most
of the CalM at facility from surrounding properties other
than the secluded General Dynamics facility to the south.
3. That there are adequate public facilities, services, and
utilities available to the aggregate operation. Water
conservation measures will be incorporated and reclaimed
water utilized once it becomes available.
4.
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5.
That there will not be a harmful effect upon desirable
neighborhood characteristics, in that the hours and mode
of operation for the aggregate facilities are conditioned
to minimize nuisances to the surrounding neighborhood.
Reclamation including revegetation of reclaimed slopes is
proposed to minimize visual impacts of the extractive
process.
That the generation of traffic will not adversely impact
the surrounding roads and/or the City's Circulation
Element, in that the construction of the private access
road will commence within 60 days of CUP approval and any
other needed City approvals, and that the road will be
completed and in service no later than 60 days after
commencement of construction, after which time all truck
and employee traffic will be diverted from Beeler Canyon
Road and Creek Road. Improvement and repair of Creek
Road between the northwest end of Beeler Canyon Road and
pomerado Road is also required.
6. That the site is suitable for the type and intensity of
use for development which is proposed, in that it has
operated as an aggregate operation for the past 15 years,
it was a recognized aggregate operation as part of the
specific plan adopted in 1985 and conditions of
approval/mitigation measures assure that the intensity of
use is reasonably compatible with neighboring property
uses.
7. That there will not be significant harmful effects upon
environmental quality and natural resources, in that the
continued aggregate operation would make use of natural
resources for construction products and maintenance of
existing public and private facilities; the environmental
effects were extensively reviewed in the subsequent EIR
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Resolution No. P-91-48R
page 4
and only two factors were found to be unmitigable, namely
aesthetics/landform alteration and biological impacts.
8.
That there are no other relevant negative impacts of the
proposed use that cannot be mitigated beyond the two
previously mentioned, as identified and discussed in the
Final Subsequent Environmental Impact Report for the
subject project, which was reviewed and considered by the
City Council and was certified as complete and adequate
for the proposed conditional use permit by Council
Resolution No. 90-163, and that the use of the property
for an aggregate operation is an appropriate use in that
the property was designated in 1982 by the California
Department of Conservation, State Mining and Geology
Board, as an area of regionally significant resource,
aggregate, and is designated in the South poway Planned
Community as an area of resource recovery (extraction).
That the proposed use will not adversely affect the City
of poway General Plan nor the South poway Specific Plan
for future as well as present development, in that the
specific plan addressed the existence of the aggregate
operation in 1985 and anticipated continued operation and
potential expansion subj ect to a reclamation plan and
conditional use permit.
10. This approval does not include the proposed asphaltic
concrete plant. Any amendment of this CUP must comply
with the South poway Specific Plan as it may be amended
from time to time. Approval of any amendment of this CUP
shall be at the discretion of the City Council.
9.
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11. The approval of this conditional use permit satisfies the
mitigation measures of the 1985 EIR for the South poway
planned Community.
Section 3: City Council Decision:
The City Council hereby approves Conditional Use Permit 89-05,
excluding the proposed asphalt concrete plant, for 166 acres
which includes an 83 acre parcel (APN 320-031-03), a 66 acre
parcel (APN 320-031-04) and a 17 acre parcel (APN 320-031-06),
subject to the following conditions:
1. Within 30 days of approval: (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 on Real Property. The revision
to finding #10 shall apply to the Letter of Understanding
of conditions and the Covenant on Real Property.
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Resolution No. P-91-48R
Page 5
2. This approval is for the proposal submitted by CalM at and
described in the Subsequent EIR, except without an
asphal t concrete plant, which would allow continued
operation within the existing boundaries of the 83 acre
site (APN 320-031-03), expansion to the 66 acre parcel
(APN 320-031-04) and construction of a portion of the
access road on the 17 acre parcel to the west (APN
320-031-06).
3. The capacity of the sand and gravel plant is to be
limited in size to a nominal processing capacity of
775,000 tons per year. Monitoring of the production rate
shall occur to the satisfaction of the Director of
Engineering Services.
4. The term of the permit is to be 40 years.
5. All structures and use of the premises shall be in
conformance with a revised site plan to be submitted
within 90 days.
Applicant shall pay, at the time of the development of
its industrial lots, pro rata share of $67,463.20,
adjusted per annum based upon Engineering News Record
Index, toward the development of a five aCre park in the
South poway Planned Community.
7. Obtain building permits, as appropriately required, from
the City of poway and comply with the regulations of the
Industrial Safety Division of the Occupational Safety and
Health Administration for new or used plant facilities
installed on the site.
6.
8. Submit payment(s) for consultant costs within two weeks
of receipt of written requests with invoices.
APPLICANT SHALL CONTACT THE DEPARTMENT OF PLANNING SERVICES
REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS:
BIOLOGY
1. Conduct salvage operations for San Diego Barrel Cactus
specimens identified by the springtime biological survey and
transplant onto adjacent open space or other suitable
locations within the open space areas of the South poway
Specific Plan. Transplant some cactus specimens to the future
reclaimed slopes as deemed appropriate by the project
biologist in consultation with CalMat.
2. Protect the riparian scrub habitat located within the Beeler
Creek floodplain [as identified in Appendix C of the Technical
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Resolution No. P-9l-48R
Page 6
Appendices to the certified Subsequent EIR] from operational
encroachment by placement of a five-strand barbed wire fence
or suitable alternative in that 0.2 acre area. Designate an
open space easement over this habitat with wording to be
approved by the Director of Planning Services and the City
Attorney. If appropriate, submit a mitigation contingency
plan within one year to address any inadvertent disturbance of
the habitat.
3. Submit a Diegan Coastal Sage Scrub habitat restoration plan
within one year. Long-term biological monitoring is required
per the Subsequent EIR, including the preparation of status
reports to be reviewed by the City on an annual basis for a
minimum of 20 years and potential extensions at each five year
review period. The plan is to be prepared by a qualified
biologist working with a revegetation specialist or certified
landscape architect.
4.
Develop and submit within one year, a habitat restoration
and/or enhancement contingency program for on-site target
areas sui table for the restoration of Southern California
grassland.
5.
Maintain 3.8 acres of viable Southern California Grassland and
43.1 acres of Diegan Coastal Sage Scrub on-site at all times
during the life of the use permit.
MITIGATION MONITORING
Site shall be developed in compliance with the applicable
environmental impact mitigation measures identified and the
mitigation monitoring and reporting program contained within
the Certified Final Subsequent Environmental Impact Report
(CalMat-Poway - State Clearinghouse No. 89010025) on file in
the Planning Services Department. Any additional costs
for monitoring to be borne by the applicant shall be reviewed
by the applicant prior to any authorization to perform
services or works associated with such costs.
RECLAMATION PLAN
Commence implementation of the reclamation plan approved on
August 7, 1990 in accordance with the conditions of Resolution
90-164 as amended by Resolution No. 91-078 approved on July
23, 1991.
NOISE
1.
Submit a
dimensions
road.
detailed acoustical report to determine the
of the acoustical barrier for the private access
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Resolution No. P-91-48R
Page 7
2. Turn off back-up alarms on loaders, dozers, water trucks and
other mobile plant equipment during official hours of local
sunset and sunrise hours and replace with flashing strobes.
3. Maximize the use of storage and surge piles to shield noisy
equipment (e.g., secondary crushers and vibrating screen).
4. All operations conducted on the premises, including the
warming up, arrival, and departure of trucks and other
vehicular equipment, shall be limited to the period between
6:00 a.m. and 6:00 p.m., Monday through Friday, 8:00 a.m. and
6:00 p.m. on Saturday, and no operations shall be conducted on
the premises on Sundays. The hours of operation are suspended
for emergency situations or in response to the needs of
governmental agencies. Maintenance activities may continue
until 9:00 p.m. on designated work days.
5. A paging system or approved alternative shall be used so as
not to produce sounds audible beyond the boundaries of the
premises.
AIR QUALITY
1. obtain a San Diego Air Pollution Control District Permit
(APCD) for authority to construct and an APCD permit to
operate.
2. The APCD shall monitor emissions on an annual or more frequent
basis to ensure that the plant operates as designed.
3. Wet sweeping shall be done on the private access road, as
required, in order to remove the accumulation of spilled
materials from the pavement. Reclaimed water shall be used
for wet sweeping once available.
Frequent watering of on-site haul routes is required
dust emissions from equipment moving on unpaved,
surfaces in accordance with APCD requirements.
5. plant fast-growing shrubs and trees along the west side of the
private access road to act as a windbreak, confining dust and
particulate matter to within the site.
4.
to limit
in-plant
6. Equipment to be used shall be as required by the Air pollution
Control District.
7. All equipment and vehicular parking areas and roads shall be
periodically treated, and at all times be maintained, so as to
prevent dust production to the satisfaction of the Air
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Resolution No. P-91-48R
page 8
pollution Control Officer.
8. Immediately prior to removal from the premises, all aggregate
materials capable of generating dust shall be surface watered
in a manner approved by the Air Pollution Control Officer.
9. All dust or other air pollution emissions at the screens, at
material transfer points, or at any equipment, during any
phase of the operation, shall be controlled by water sprays,
or by such other or additional methods as may be required by
the Air Pollution Control Officer to control any excessive
dust or air pollutant production which, in the opinion of the
Air pollution Control Officer, may develop or has developed.
LANDSCAPING
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Submit a detailed landscaping plan to the Director of Planning
Services within one year showing the landscaping screen along
the north and south property lines except at access openings
and along the south one-half of both east and west property
lines. The plan should also show the option of planting trees
on the west side of the noise barrier to be constructed along
the access road.
2.
Landscaping shall be installed in accordance with an approved
plan and landscaped areas shall be provided with an irrigation
system (capable of conversion to reclaimed water) installed to
provide water necessary to maintain the landscape screen.
3. All landscaped areas shall be maintained in a heal thy and
thriving condition at all times.
WATER AND WATER QUALITY
I. Provide copies to the Planning Services Department of the
permi t renewals for waste discharge requirements from the
State Regional Water Quality Control Board.
2. No plumbing or other installation shall be made that could
cause pollution of the potable water supply due to an open or
cross connection or due to back siphonage.
3. Removal of emergent vegetation within the water-holding basins
shall occur on an annual basis. Removal of vegetation within
the Beeler Creek channel is limited to maintenance for flood
control as approved by the Departments of Engineering and
Planning Services.
4. Provide water conservation offset per Ordinance 336, as
amended, in the event a larger water meter is necessary.
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Resolution No. P-91-48R
Page 9
VISUAL
1. Non-operating equipment, vehicles, junk, or other refuse shall
not be stored or allowed to exist on the premises.
2. All light fixtures shall be so designed and adjusted as to
reflect light downward, away from any road or street and away
from any other premises.
REVIEW PERIODS AND COMPLIANCE
1. Annual review of the conditional use permit and reclamation
plan shall be conducted per Sections 17.48.140 and 16.51.090
of the Municipal Code in addition to mitigation monitoring and
reporting.
2. This permit is subject to five year reviews for compliance
with prior conditions and to add new conditions as necessary
to ensure compliance with changes in State, Federal, or local
laws.
APPLICANT SHALL CONTACT THE DEPARTMENT OF ENGINEERING SERVICES
REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS:
ROADS AND TRAFFIC
I. Improve and repair Creek Road from Beeler Canyon Road to
pomerado Road to a minimum paved width of 24 feet to the
satisfaction of the City Engineer.
2. The applicant shall verify that Beeler Canyon Road was graded
to 28 feet with adequate base to the satisfaction of the City
Engineer.
3. The heavy truck traffic on Beeler Canyon Road and Creek Road
is limited to 310 trips per day until the access road to
Kirkham Way is completed.
4. Commence construction of the private access road from the
plant site to the northerly property line within 60 days of
CUP approval and any other needed City approvals. The road is
to be completed and in service no later than 60 days after
Commencement of construction.
5. Truck traffic is limited to 730 trips per day averaged over a
monthly period for working days. periodic "no-notice" truck
counts will be conducted by the City. In addition, CalMat
shall maintain truck trip logs of the number and types of
trucks entering and leaving the site with copies provided to
the Engineering Services Department upon request.
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Resolution No. P-91-48R
Page 10
6. All truck and employee traffic shall utilize the Kirkham Way
entrance upon completion of the new access road.
7. The on-site access road shall be well maintained at all times
to meet Industrial Mine Safety and Health Administration
(IMSHA) requirements.
8. Construction of industrial buildings is prohibited on the
future industrial lots to be created by the reclamation
activity along the northerly line until mining and processing
activities on the project site have been completed, or CalM at
terminates operations under the permit. Any change from this
condition would have to be specifically approved by the City
Council.
9. CalMat shall not utilize tonnage capacity in excess of 350,000
tons per year until the completion of the westerly extension
of the South poway Expressway to I-IS.
FLOODWAY
1.
Future modifications to the Beeler Creek floodway shall be in
accordance with the September 1987 report of Dr. Howard Chang
which contained water surface profile calculations to
determine the floodway, 100 year flood levels, velocities, and
effect on neighboring properties. All permanent structures
are to be constructed above the 100-year flood level.
2. The City of poway will vacate the existing flowage easements
in favor of a new flowage easement to be dedicated by CalMat.
New flowage easement is to be defined in accordance with
requirement set forth in Condition No. I directly preceding
this condition.
3. Settling ponds shall be in conformance with the approved plot
plan.
4. If necessary, obtain a streambed alteration permit from the
California Department of Fish and Game before any work within
the Beeler Creek channel. Coordinate this permit process with
the Departments of Engineering and Planning Services.
5. If necessary, obtain a Section 404 permit from the Army Corps
of Engineers for any work that would affect wetlands within or
near Beeler Creek. Coordinate this permit process with the
Departments of Engineering and Planning Services.
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Resolution No. P-91-48R
page II
WATER SUPPLY AND SEWAGE DISPOSAL
I. Water supply to be provided by the City of poway. Reclaimed
water is to be used for wet aggregate processing and dust
control once available.
2. Provide and/or maintain adequate supply of water approved by
the Air pollution Control Officer and the City of poway to
meet the dust and air pollution control requirements.
3. Provide and/or maintain facilities on the premises which are
approved by the Health Officer of the County of San Diego as
follows:
Proper sanitary facilities including toilet, handwashing, and
sewage disposal facilities for employees working on the
premises. These facilities shall be installed in conformance
with the applicable laws.
GRADING AND STOCKPILING
Obtain a grading permit from the Engineering Services
Department pursuant to Chapter 16.44 of the Municipal Code
prior to construction of the private access road, where
permanent near Kirkham Way (100 feet from centerline), and
floodway improvements.
2. Top of excavation shall be no closer than 50 feet to the edge
of the exterior property lines as shown on the approved site
plan.
1.
There shall be no blasting, and
explosives, on the premises without
by the City of Poway.
4. No slope shall be established having a grade steeper than 2:1
except that temporary vertical cuts in increments of 100 feet
are permitted.
3 .
no storage or use of
a blasting permit issued
APPLICANT SHALL CONTACT THE DEPARTMENT OF PUBLIC SERVICES REGARDING
COMPLIANCE WITH THE FOLLOWING CONDITIONS:
Dedicate and improve the trail connection along the north side
of Beeler Canyon Road per the Master plan of Trails.
APPLICANT SHALL CONTACT THE DEPARTMENT OF SAFETY SERVICES REGARDING
COMPLIANCE WITH THE FOLLOWING CONDITIONS:
1. A five strand, five foot high barbed wire fence shall be
maintained surrounding the plant site and active extraction
area, with the Kirkham Way access road provided with a
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Resolution No. P-9l-48R
Page 12
lockable gate or alternative suitable to the Director of
Safety Services.
2. The Beeler Canyon Road access shall be secured by lockable
gate or alternative suitable to the Director of Safety
Services upon completion of the private access road from
Kirkham Way.
3. Submit a business plan including a spill prevention control
and countermeasure plan to the County Health Department for
fuels and other hazardous materials kept on the site.
4. The addition of a temporary on-site water storage tank is
required until a water line of sufficient size is available to
provide adequate flow for a fire hydrant. The location and
size of the water storage tank and future hydrant shall be
determined by the City Fire Marshal.
APPROVED and ADOPTED by the City Council of the City of Poway,
State of California, this 20th day of August, 1991~
ATTEST:
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Goldsmith, Mayor
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Clerk
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Resolution No. P-91-48R
Page 13
STATE OF CALIFORNIA
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)
COUNTY OF SAN DIEGO
I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do
hereby certify, under the penalty of perjury, that the foregoing
Resolution, No. P-91-48R ,was duly adopted by the City Council
at a meeting of said City Council held on the 20th day of
Auqust , 1991, and that it was so adopted by the following
vote:
AYES: EHERY,
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
l
HIGGINSON, HCINTYRE, SNESKO, GOLDSHITH
~r~ W~,,?:.* Clerk
City 0 P way