Covenant Regarding Real Property 2007-0020404
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RECORDING REQUEST BY ) [1(-"'" It 2()07-0020~O4
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CITY OF POWAY )
WHEN RECORDED MAIL TO: (~l .JP,N 10 2007 3'11 PM
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CITY CLERK ( " ) rIFF"lel,'::',1 HECIIF:LI':,
CITY OF POWAY ll~ l~~- ': 1 'I.f I.~i I ~.I-HIU i', F:l:cnr~:I_'U:":. iJFf"WE
POBOX 789 \ ,~ ,.,~~i:r ~IIF:', , ~-:I,il fH. UJurnr 1:;U.ciF:[llF:
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APN 321-191-27/CUP 06-11. 30 92
2007-002
COVENANT REGARDING REAL PROPERTY . 0404
J Patrick Fleming, Jr. and Jill Fleming Ogilvie, PROPERTY OWNERS
("OWNER" hereinafter), is the owner of real property described in Exhibit A which is
attached hereto an? made a part hereof and which is commonly known as Assessor's
Parcel Nurflber APN 321 *191-27 ("PROPERTY" hereinafter)
In consideration of the approval of CUP 06-12 by the City of Poway ("CITY"
hereinafter!, OWNER hereby agrees to abide by the 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In the event that CUP 06-12 expires or is rescinded by City Council at the
request of the OWNER, CITY shall expunge this Covenant from the record title of the
PROPERTY
In the event of litigation to.enforce the 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:
Dated: /2/21 )tJt. By' <{j ;/ /'t-.-4 " ~ - V
, I /1 _.J Patrick Fleming, Jr (Notarize).
Dated: I~/ ::l-~I 0(". By' (~/f~'dhl[~~ tJ~
/ I (/ Jill Fleming Ogilv e (N()t~rize)
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CITY OF POW A Y
Dated 1/./q.O' By:
Niall Fritz, Direct
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CALIFORNIA ALL,PURPOSE ACKNOWLEDGMENT
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I' Description of Attached Document ~
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I Title or Type of Document: ,'.1
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I Document Date: \'2 '05 Olo Number of Pages: 10 "
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" Signer(s) Other Than Named Above: "
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,. Capacily(ies) Claimed by Signer
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r{J 1999 National Notary Association . 9350 De SotoAv~ P,O. Box 2402' Chalsworth, CA 91313-240<" www.nationalnotarvor~ Prod. No, 5907 Reorder: Call Toll-Free 1-800-876-5827
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT 13094
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State of California fln:J~J~ ~
County of ~S
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personally appeared ::r.
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Name(s)ofSigner(s) f
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~roved to me on the basis of satisfactory evidence
to be the personrfJ whose name<J! is/Me"'subscribed
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he/she/they executed the same in hisj.hel~tl,(..if.
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Noto.v ~ 693136
. - CaIlrcmt. I entity upoh behalf of which the person?1 acted,
MyC~ Ange"" COUn1y .
~SepIJ,20IO executed the instrument.
w~~and and o~cial seal.
Place Notary Seal Above Lit .;.~~ (Vk~
Signature of Notary Public
OPTIONAL
Though the information below is nC!.Uequired by law, it may prove-valuable to,persoris relying on'the document
and could prevenUraudulentremoval and reattachment of this form to another document.
Description of Attached Document '< "J2 ~
Title or Type of Document (l1l.J<LV\""'+ "'ja.rJ:~ D ,..
Document Date' I "2./ ~'i I Q b Number of Pages. l (1?j-- ",.p.~I\V
Signer(s) Other Than Named Above: w ! A
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Capacity(ies) Clai~ by Sign~ _ Signer's Name:
Signer's Name: ::r. ,htc:li.-- n'\i~I,..t r-
~ndividual D Individual
D Corporate Officer - Title(s): D Corporate Officer - Title(s):
D Partner - D Limited D General D Partner - D Limited D General
D Attorney in Fact D Attorney in Fact .
Top'of thumb here Top ot thumb here
D Trustee D Trustee
o Guardian or Conservator D Guardian or Conservator
D Other' D Other'
Signer Is Representing: Signer Is Representing:
"""-~~""",,,~~~~~~~~~~~~~~~~~-g,..~~~~
cg 2004 National Notary Association' 9350 De Soto Ave., P.O. Box 2402 . Chatsworth, CA'91313-2402 Item No. 5907 Reorder: Call Toll Free \-800"876-6827
. EXHIBIT "A" ·
13095
PARCEL A.
THOSE PORTIONS OF PARCELS 1 AND 2 OF PARCEL MAP NO 5067, IN THE COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, FILED IN THE OFFICE OFiTHECOUNTY RECORDE~ OF SAN DIEGO COUNTY, SEPTEMBER 2,
1976 AS FILE NO. 76-288883 OF OFFICIAL RECORDS, BEING DESCRIBED AS FOLLOWS.
COMMENCING AT THE SOUTHEAST CORNER,OF PARCEL 1 MAP 5067 RECORDED SEPTEMBER 2, 1976, IN SAN
DIEGO COUNTY AS DESCRIB~D ABOVE; THENCE NORTH 88017'59,"WEST 503.02 FEET BEING THE SOUTHEAST
CORNER OF PARCEL 2 OF PARCEL MAP NO , 5067 BEING THE TRUE POINT OF BEGINNING, THENCE NORTH
39052'00" WES:r 110 FEET, THENCE NORTH. 49045'09" WEST 408,.00 FEET, THENCE NORTH 00016'47" WEST
318.15 FEETTO THE NORTHERLY BOUNDARY OF SAID PARKER LAND; THENCE NORTH 88021'02" WEST
442.21 FEET TO THE NORTHWEST CORNER OF SAID PARKER LAND; THENCE SOUTH 00015'02" EAST 65449
FEET TO THE SOUTHWEST CORNER OF SAID PARKER LAND, THENCE SOUTH 88017'59" EAST 823.00 FEET TO
THE TRUE POINT OF BEGINNING.
PARCEL B
AN EASEMENT FOR ROAD PURPOSES OVERTHAT PORTION OF PARCEL 3 OF PARCEL MAP NO. S067, IN THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEC;O COUNTY, SEPTEMBER 2, 1976 AS FILE NO. 76-288883 OF OFFICIAL RECORDS, DELINEATED AND
DESIGNAtED AS'''PROPOSED 30 FOOT PRIVATE ROAD EASEMENT".
PARCEL C. j
,
A 5.00 FOOT WIDE STRIP EASEMENT FOR WATER LINE CONSTRUCTION AND MAINTENANCE AND RIGHT OF
WAY PURP19SES OVER, UNDER, ALONG ANQ ACROSS THAT PORTION OFTHE SOUTHWEST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 7,TOWNSHip 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF,
THE NORTHERLY LINE OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS.
COMMENCING AT THE WEST QUARTER CORNER OF SAID SECTION 7, THENCE NORTHERLY ALONG THE
WESTERLY LINE THEREOF NORTH 0015'02" WEST 646.18 FEET TO THE NORTHERLY LINE OF PARCEL 3 OF
PARCEL MAP NO. 5067 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 2,'1976 AS FILE NO 76-288883 OF OFFICIAL RECO'RDS AND THE TRUE POINT OF BEGINNING,
THENCE EASTERLY ALONG THE NORTHERLY LINE THEREOF SOUTH 88017'59" EAST 1068.88 FEET TO THE
WESTERLY LINE OF PARCEL 1 OF PARCEL MAP NO. 10356, RECORDED AUGUST 21, 1980 AS FILE NO. 80-
268454 OF OFFICIAL RECORDS, THE SIDELINES OF SAID 5.00 FOOT STRIP ARE TO BE PROLONGED OR
SHORTENED SO AS TO BEGIN IN THE WEST AT THE WESTERLY LINE OF SAID SECTION 7 AND TERMINATE,IN
THE EAST AT THE WESTERLY LINE OF SAID PARCEL 1 OF SAID PARCEL MAP NO. 10356. .. .
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RESOLUTION NO P-06-60 13096
A RE:SQLUJ/QN OF THE CITY COUNCIL
OF THEC/TYOF rOWAY, CAliFORNIA
APPROViNG. CGN8lJIONAL USE PERMIT 06-12
ASSESS0EtS PARCEL NUMBER 321-191-27
WHEREAS, Conditional U.se Permit, (Cuy) 06-12 was submitted by M&M
Telecomm,LLC (for Cricket Communications), AplJii<,:arit, to instaHa telecommunications
facility'at 14264 Tierra BonitaRoad, in the Rural Residential PI. (RR-A) zone; and
WHEREAS, the proposed telecommunications .facility consists of three,panel-type
antennas mounted on a 25"foot-high pole and ancillary groundcmounted equipment
in an existing equipment enclosure, near the aGc~ss Wi:!Y'to the residence; and
WHEREt\S, on 8etember 5, 2Q()6, the City ,Council held a duly advertised public
hearing to solicit comments from the,public, both pro and con, relative to this application.
NOW, THEREFORE,BE IT RESOLVED by the City Council of the City of Po way
as follows:
Section 1 The proposed P!ojec;t is Categorically Exempt as a Class 3 Categorical
Exemption from the California Environmental Quality Act (CEQA) pursuant to Section
15303 of theeEQAGuidelines, in that the project involves the installation of anew, small,
telecommunicationsfacility'providing a utility extension to serve the surrounding areas.
Section 2: The findings;imaccordante withSedion: 1748.070 of the Poway Municipal
Code, fpr CUP 06-12to installa:telecommunicationsJacility on property located at 14264
Tierra Bonita Road, in the Rural Residential A (RR;A) zone, are made as follows:
A. The proposed location, size,ldesign, and operating'characteristics of the proposed
telecommunications facility are in accord with the title and purpose of Chapter 17.48
of the Poway Municipal' Code (Conditional USe ,Perlllit Regulations), the General
Plan, andthedev,elppment policies and standards ciUhe City.in that the facility has
been:designed, sited, and screened such thatitwill not result in visual impacts to
the surrounding community
B The location, size; design; Clnq operatir;\g characteristics of the proposed
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telecommunicatiolls facilityvitill be compatible with and will not adversely affect
or'be 'f]1?terially detrimentaltci adjacent uses, residents, buildings, structures, or
natural resources in that the facility has. been designed and sited such that it will
noUesult ih visual impacts to the surrounding community. The use will comply
with Federal CommunicationsCommission'(FG~) gesigh and operational standards.
The facility'is,unmanned and will not create.traffic impacts.
C The proposed tele<;:ommunicati()ns facility is in harmony with the scale, bulk,
coverage;.and density of,iandisconsistentwith, adjacent uses in that the proposed
. . 1'3097
Resolution No. P-06-60
Page 2
facility .will be located in a;furClI hill!>ide area al1q 6nly,thetopportion of the pole .will
exceed the height of existing shrubbery and rocks on an existing residential
property
D l'hereare adequate publicJacilities,.services, and utilities available at the subject
site to serve the proposed telecommunications facility
E. l'here will not be a harmful effect upon the desirable surrounding property
characterfstics in that the proposed telecommuriicationsJacility has been designed,
sited"and'screened such that it will not result in a;visual impact to the surrounding
community, and the facility will complywith FOC design and operational standards.
F The generation of traffic will. n'otadve.rsely impact the capacity and physical
character onhe surrouflding ~treets and/orthe'Circulation Element of the General
Plan in that tlie proposed ,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, which is
proposed in that. the proposed telec6mmu'nicati6ns facility will enhance
telecommunications coverage in the City
H. Therewill not be.significantharmful.effects upon environmental quality and natural
resources in thattheproposed telecommunications facility is located on a developed
property and does not involve the removal of natural habitat resources.
I There are no relevant negative imRacts C!ssociated with the proposed
telecqmmunicatiol1s.facilJiYthat canhot 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 proposed 'telecommunica!ionsfacility will not be materially
injurious to properties or improvements in tlieviCiriity, nor be contrary to the adopted
General 'Plan, in tliat the facility has been designed and sited such that it will not
resultin visual impacts and willcomplywith FCC'designand operational standards.
K. The proposed telecommunications facility will comply with all the applicable
provisiqnsofChapter17.48 of th~ PowaYMD.hic;ipal Code in that the facility has
beehdesighedarid sitedsLJchihatitwiil not resuit in visual impacts and will comply
with FCC: design and operational standards.
Section 3. The City Council hereby approveseUP06~ 12Jo install a telecommunications
facility which consists a 25cfoot-high pole with t!1ree panel antennas, and associated
equipment cabinets in an existing equipment enclosure, on a developed residential
property at 14264 Tierra BonitaRoad, as showri on the plans dated September 22,2006,
subject to the'following conditions:
. . 13098
Resolution No. P-06-60
Page 3
A. Approval of this:ClJP rE:lquest shall apply ollJY to'thE? subject project and shall not
waive compliancewith allsE:l~;ti6Q;> ofth~Zqnjhg Grdinanceand all other applicable
City Ordinances in effect atahe'time of Building Permit issuance.
B. Within 30days;of the date ofl!l\is approval: (.1)the:applicant shall submit inwriting
thatallCoriditionsof Appfbvafhavebeenread and understood; and'(2) the property
owriers shall ,execute a Covenant Regarding Real Property
C The use conditionally gr~nted by this approval,shall not be conducted in such a
manner as to interfere.with the reasonable'use arid enjoyment of surrounding uses.
D. The conditions of CUP 06-12,shall remainJQ:~f[ett forthe life of the subject wireless
telecommunications facility' ancJ shall run with4he:land and be binding upon future
owners, successors, heirs,aridtransferees ofthe current property owner
E. CUP 06-12 may be subject to annual review as determined by the Director of
Development Services for compliance with the Co.nditions of Approval and to
address concerns that may have been raised during tile prior year.
F The applicantshallobtain a'Building Permit'prior toirl~tallation of thefadlity Prior
to issuance of a Building Permit, the applicant1sh-allcbmply with the following:
1 The applicant shall comply with the Jatest'adopted Uniform Building Code,
National ,Electric Code, 'and all other applicable codes arid ordinances in
effect atthe time of Building Permit issuance.
2. The site ,shall 'be developed in accordance'with the approved plan on file in
the Development Services Department'an.d th~ conditions contained,herein.
A final inspection from the appropriate CitYOepartments will be required.
(Planning)
3, A $3,000 deposit shall be submitted to ensure completion of (he required
Confirming Radio Frequency (RP) RePort, as specified in Condition of
Approval H.1 below The deposit shalL also ,be used to cover the costs an
IndependentConsultanUo review the report,'as:determined by the Director of
DevelopmentServices.
4 The antennas shall not be activated for use until the Building Division
conducts a'final inspection.
5. The Building Permit plans shall 'include a utility plan that shows the
equ ii:>ment layout.
6. The specific materials used to paint the ,antennas and equipment shall be
depicted on the building plans, and shall Qet6 the satisfaction oHhe Director
of Development Services.
. . 13099
Resolution No P-06-60
Page 4
7 Any trenchiM ,s~all be conducted in the existing disturbed areas. The
Planning Division shall, approve any trench locations outside of existing
disturbed areas. Unplanned removal bf habitat will be required to be
mitigated at a 2: 1 ratio.
8, The appliGant sball demonstrate to the City thatthey have entered into the
existing PriVate Road Maintenance Agreement for the private portion of
Tierra .Bonita. Road.
9 The property owner shall repair, to the s3iti$fa~tion ofthe City Engineer, any
damages to the public and -priVate 'toads that are caused by construction
activity from this project.
G Prior to occupancy, theapplii::ant shall ,comply with the following fire safety
requirements to the satisfaction of the Fire MarshCl.l:
1 .Provide at#ast'oQe:firee5ctirlgUisher with a minimum rating of 3A40BC
2. Maintain emergency vehicle access to the site at all times.
H. Upon establishment of .the wireless telecommunications facility, pursuant to
CUP 06-12, 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, that
specifies the actual RF .levels within 500 feetofthe facility and includes a
statement asto compliance-withthe FGC::Maximum Possible Exposure limit
(MPE). The format ofthis report shall: QOliform to City requirements. The
intent of the reportlis to. m~asi.J_re'~I(posurEi leVels at the location after the
facility is inoper.ati6[i 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,findingswith 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
c'ease operat'ion immediately Modifications shall be made tothe facility and
the, operator shalLconduct a second,confirming'RF report ofthe.MPE levels.
Full operation of the facility shall n61 be allowed until the Director of
DevelopmentServices has ~~terf11i.nedith_arthe facility is'in compliance with
the Federalguidelines. Th!'J Cjty m_ay conduct an independent verification of
the results oUhe analysisprovicied by'the,operator at the operator's cost.
Upon demonstration, to the satisfaction ,of the Development Services
Department, that the telecommunications installation is in compliahce'With
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13100
Resolution No. P-06-60
Page 5
all Federal Guidelinesi,any balance remaining from the security deposit shall
be refunded to the:applicant, upon writtenrequest by the applicant.
2. All facilities and related eCjuipment 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 facility shall be operated in such a manner as to minimize any possible
disruption caused by noise. Backup generators shall only be operated
during periods of power outages' and ,shall not be tested on weekends or
holidays, or betWeen the hours of 10:00 p.m. and 7:00 a.m. on weekday
nights. At no time shali'equipment noise from any source exceed the noise
standards contained in.the PowayMunicipal Code.
4 The'owner or operator ofthe facilitYishaH rOljtinely and regularly inspect the
site to ensure compliance with the standards set forth in this permit.
5 The operator oftheJacility shall be strictly liable for interference caused by
the facility with City telecommunications systems or other public agency
emergency communication systems. The operator shall ~top operations
and.determine thE! caus.e prior to restarting,tQe,facility The operator shall be
responsible for aHlq,b6r and equipment costs for determining the source of
the interference, all costs associated with eliminating the interference
(induding, butnot 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.
6. The telecommunications facility shall 1J<}t ~e operated in such a manner
that it poses, eith:erQY 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 thatexceedthe FCC!s MaximumPermissible Exposure (MPE) limits
for electric and magnetic field strellgthaild,p9wer densities for transmitters,
or any more ~e~tric!ive sta[1dardsubsequently adopted or promulgated by
the City, CountYi.Stateof California, orthe Federal government.
7 If there is-any change in ,the operating charaGteristics of the facility, a report
pursuant to Condition H.1 oftliis Resolution shall be submitted to the
Director of DevelopIT\enl Servi~s 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.
8. Any service light shall only be :operated when maintenance is being
performed on the equipment. The service light shall be adequately
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I r131 0 t
Resolution No. P-06-60
Page 6
shielded and directed away from adjacent residential uses or roadways. The
service Iight(s) shall be on a timer
Section 4 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 5- The approval of CUP 06-1.2 shall expire on December 5. 2008, 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.
PASSED, ADOPTED and APPROVED by the City Council of the City of Poway,
State of California, this 5th day of December 2006.
ATIE1 ~~
fl" She,. Ci~ Cle~
STATE OF CALIFORNIA )
)SS
COUNTY OF SAN DIEGO )
I, L. Diane Shea, City Clerk of the City of Poway, do hereby certify, under the
penalty of perjury, that the foregoing Resolution No~' P-06-60, was duly adopted by the
City Council at a meeting of said City Council held on the 5th day of December 2006,
and that it was so adopted by the following vote:
AYES. BOYACK, EMERY, HIGGINSON, REXFORD, CAFAGNA
NOES NONE
ABSENT NONE
DISQUALIFIED- NONE ~. 'l1Ju:: '!/u-
City of Poway