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Covenant Regarding Real Property 2020-0805953RECORDING REQUEST BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY CA 92074-0789 DOC# 2020-0805853 IOI HI I1P DI! IID lID IIII IO III! IIHI JI I1II 11 Dec 15, 2020 03:26 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $41.00 (SB2 Atkins: $0.00) PAGES: 10 (This space for Recorder's Use) APN: 317-225-04 CUP 18-012 COVENANT REGARDING REAL PROPERTY Harsch Investment Properties, LLC ("OWNER" hereinafter) is the owner of real property commonly known as 12544 Kirkham Court ('PROPERTY hereinafter) and more fully described in the legal description attached hereto as Exhibit A and made a part hereof. In consideration of the approval of Minor Conditional Use Permit (CUP) 18-012 by the City of Poway ("CITY" hereinafter), OWNER hereby agrees to abide by the conditions of approval contained in the attached Resolution (Exhibit B). This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrances, successors, heirs, personal representatives, transferees and assigns of the respective parties. In the event that CUP 18--012 expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 18-012, upon the request of the OWNER the CITY shall expunge this Covenant from the record title of the PROPERTY and CUP 18-012 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. Dated: 7!J 220 e0 Dated: OWNER OR AUTHORIZED AGENT: Harsch Invest,ent Properties, LLC Bv• /7 Alex -Abe -1A tillLl,IorNl 4-I. RoDs-w,q41otarize) Title: 5EMc57 (//CE td--E5/De—A/1--- CITY OF POWAY: B./iffr"i Ro ert J. Manis, Director of D velopment Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 1.467101, .113.,. �.. ,A moi. 1N. AK CIVIL CODE § 1189 w•�w� moi. .~i�� �� a MA 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 Skil D1e•&..0 } On 2i1" to'tola before me, ' ' • t4 NotaryPublic, � Date Here Insert Name and Title of the Officer personally appeared +t 64,1,(1,0 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)- whose names} is/are subscribed to the within instrument and acknowledged to me that he/-she/they executed the same in his/her/their. authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. M. M. HAUSMANN Notary Public - California i San Diego County Commission # 2251011 My Comm. Expires Aug 20, 2022 Place Notary Seal Above WITNESS mu hand and official seal. Signature OPTIONAL Signature of Notary Public 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: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer --- Title(s): ❑ Corporate Officer — Title(s): ❑ Partner -- ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: L'V`1M ��i/�'--`��Y `!�'•�V`'xl ��\/1�'�1�`--',V•��' `.--'1��_•�f .`�'�J� �V `�Y�'^s`J•`'' �-'\/�`--' J �V `1V LV �:?J���` 1V•`��`'V�`--?V �1lY�kl��'�/ �V �1h ©2016 National Notary Association ! www.NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 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 On 1��t San Diego t2C , ,o] Date before me, } } Yvonne Mannion Notary Public Here Insert Name and Title of the Officer personally appeared Robert J. Manis Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. YVONNE MANNION Notary Public - California San Diego County Commission 4( 2201766 My Comm. Expires Jun 18, 2021 z Place Notary Seal Above WITNESS my hand and official seal. Signature LAO &AIL A,/ ;OA) OPTIONAL Signature of Notary Public 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: Covenant Regarding Real Property CUPI8-012 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact Trustee ❑ Guardian or Conservator D Other: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A REAL PROPERTY DESCRIPTION PARCEL A: PARCELS 4 AND 5 OF PARCEL MAP NO. 15618, IN TEE 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 THEREOF 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 EXHIBIT B RESOLUTION NO. P-19-10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT 18-012 ASSESSOR'S PARCEL NUMBER 317-225-04 WHEREAS, ,Conditional Use Permit (CUP) 18-012 submitted by Technology Associates EC Inc., for Verizon Wireless (Applicant) and Harsch Investment Properties (Owner), requests 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 six 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 antennas that are mounted individually to the roof and clad in a 3M Conceal Film (north facing sector); (2) replacing two antennas in each of the new roof -mounted sectors and existing wall - mounted sector; (3) adding three roof -mounted remote radio units (RRUs); and (4) adding two new ground -mounted cabinets and three surge demarcation junction boxes within an existing equipment enclosure; WHEREAS, on July 16, 2019, the City Council held a duly advertised public hearing to solicit comments from the public, both for and against, relative to this application; WHEREAS, the City Council has read and considered the agenda report for the proposed project and has considered other evidence presented at the public hearing; and WHEREAS, the Poway Municipal Code (PMC) establishes findings required for granting a Conditional Use Permit; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows SECTION 1: The project is Categorically Exempt from the California Environmental Quality Act (CEQA), as Class 3 Categorical Exemption, Section 15303(d) (a) of the CEQA Guidelines, as the project involves an 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 for CUP 18-012, in accordance with Section 17.48.070 of the Poway Municipal Code (PMC) (Findings required before granting or altering permit), are made 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, 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 Resolution No, P-19-10 Page 2 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 significant 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, a slim stealth 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. 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. 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 stealth 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 of Chapter 17.48 PMC, in that the facility has been designed and sited such that it will not result in significant visual impacts, and will comply with FCC design and operational standards. SECTION 3: The City Council hereby approves CUP 18-012 to modify an existing telecommunications antenna facility and to allow antennas to exceed six feet in height above the Resolution No. P-19-10 Page 3 roofline at 12544 Kirkham Court in the LI Land Use Designation area of the SPSP as shown on the plans stamped Exhibit A dated July 16, 2019 on file with the City and incorporated by reference as Exhibit A herein, 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. This CUP approval shall be in substantial conformance with the approved plans and photo simulations (Exhibit A) with minor modifications including antenna and equipment enlargements and relocations permitted by the Development Services Director. C. Within 30 days of the date of this approval, and before the issuance of any permit: (1) the applicant shall submit in writing that all conditions of approval have been read and understood; and (2) the property owner shall execute a Covenant Regarding Real Property. In order for the City to prepare the Covenant the applicant must first submit a legal description of the subject site. D. The use conditionally granted by this approval shall not be conducted in such a manner as to interfere with the reasonable use and enjoyment of surrounding uses. E The conditions of CUP 18-012 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. The 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 address unresolved operational concerns that may have been raised during the prior year. Prior to start of any work within the public right-of-way or City easement, a Right -of -Way Permit shall be obtained from the Engineering Division of the Development Services Department. All appropriate fees shall be paid prior to permit issuance. H. 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 Resolution No. P-19-10 Page 4 issuance. 2. The site shall be developed in substantial accordance with the approved plans and photo simulations (Exhibit A) 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 clad in 3M Conceal Film. 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 J.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. Prior to activation of the antennas, the applicant shall comply with the following: 1. The site shall be developed in substantial accordance with the approved plans on file in the Development Services Department (Exhibit A) and the conditions contained herein. A final inspection from appropriate City departments will be required. The applicant shall repair, to the satisfaction of the City Engineer, any and all damages to public improvements caused by construction activity from this project. J. Upon establishment of the wireless telecommunications facility, pursuant to CUP 18-012, the following shall apply: 1. Within 30 days of the commencement of operation of the antennas, the operator shall submit a report, prepared by a qualified professional, which specifies the actual RF levels within 500 feet of the facility and includes a statement as to compliance with the FCC Maximum Possible Exposure (MPE) limit. The format of this report shall conform to City requirements, The intent of the report is to measure exposure levels at the location after the facility is in operation and shall include the cumulative RF levels of all the telecommunications facilities at the subject site. A report of these measurements, and the engineer's findings with respect to compliance with MPE limits, shall be submitted to the Director of Development Services. If that analysis determines the MPE levels are exceeded, the operator shall cease operation immediately. Modifications shall be made to the facility and the operator shall conduct a second confirming RF report of the MPE levels. Full operation of Resolution No. P-19-1 0 Page 5 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 including wear and tear shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight. 3. The owner or operator of the facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in this permit. 4. The operator of the facility shall be strictly liable for interference caused by the facility with City telecommunications systems or other public agency emergency communication systems. The operator shall stop operations and determine the cause prior to restarting the facility. The operator shall be responsible for all labor and equipment costs for determining the source of the interference, all costs associated with eliminating the interference (including, but not limited to, filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third -party claims against the City attributable to the interference. 5. The telecommunications facility shall not be operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health. To that end, no facility or combination of facilities shall produce, at any time, power densities within 500 feet of the facility that exceed the FCC's MPF 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 J.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. Resolution No. P--19-10 Page 6 SECTION 4: The approval of CUP 18-012 shall expire on July 16, 2021, 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 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 at a Regular Meeting of the City Council of the City of Poway, California on the 16th day of July, 2019 by the following vote, to wit: AYES:: 1OE ENT:: DISQUALIFIED:: ATTEST: MULLIN, LEONARD, FRANK, GROSCH, VAUS NONE NONE NONE Faviola Medina, CMC, City Clerk Steve Vaus, Mayor