Covenant Regarding Real Property 2004-1068003
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-"RECdRDIN~REQUESTBYl ~ I IflliiII 1111111111111 1111111111 11111111111111111/11 l1li1111" illlllll :
CITY OF POWAY l NOV 10. 2004 10'49 A~v1
WHEN RECORDED MAIL TO:) t DFFIClpL FIECCiHC,'"
,_, ,". ) '~'(\~'~.~I~EI~U Ci_.IUNr, ~icCOHr'EFi': CJFFII~E
CITY- CLERK ) 1"F",bl iF" I "I'IITH U tUIH, RE',{IH['ER
ciTY9F'P0WAY) F,:,~E,; 'el'::'
POBOX 789 ) , Eo J
/Jh . POWAY CA 92074:789 l : 1IIIIIIIIIIIIIIIilllllilllIIIIllUilll~III"lllllIIlIlillllllllllllllllll1111/1
\V () No Transfer Tax Due 'j 652 ). 2004-1068003
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,.r APN: 321c820-07, 08, 09/CUP04c09 '-~
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COVENANTREGARDING REAL PROPERTY
Braemar Properties, LP" a California Limited Partnership, PROPERTY OWNER
("OWNER" herElinafter) i.s theol/{herof real property describ.edih Exhibit. A, which is
attached hereto ahd made a part hereof, and which is commonly known as Assessor's
Parcel Number 317-820-07, 08, and 09 ("PROPERTY;' hereinafter). In consideration of
the approval of CUP 04-09, by the City of Poway ("CITY" hereinafter), OWNER hereby
agrees to abide by the conditions in the attached~Resolution (E)(hibitB).
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In the event that CUP 04c09 expires or is rescinded by CiJy 'Council at the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 t~-r L.I'
M~ ".f
OWNER. 4e., L'l/G' III, l.t-C b
Dated I () - Ii. WC'1By' /,I\IVl . ~
~fll.f. J. Lt~ (Notarize)
OWNER: M~
Dated By'
(Notarize)
CITY OF POWAY
-~ated I tJ! '7/0 r By', Ad. ~
Niall Fritz, velopment SerVice
tJtf..;J07
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7653
CALIFORNIA .ALL"PURPOSE ACKNOWlED~M~NT
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State of California } ss,
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, County of
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On lCJ D ct, Ocot-I , before me. tDU1t \1D p~
Date Rotw rt l\!ame and Tille of Officer (e.g., "Jane Doe, Notary Public")
, personally appeared 0. Ll eJ0-v
, Narne(s)ofSigner(s)
" r)l:: personally known to me
I
o proved to me on the basis of satisfactory
eVidence ~
to be the person(at whose nam~ @1are
,
subscribed to the within instrument and
acknowledged to me that ~sRe:the) executed
~ @ '^"U, XWAST l the same in ~ho':tRoir authorized
- Comm. #1499088 capacity{j98-), and that by ~
III NOTARY PUBLIC, CALIFORNIA Ul signature(~on the instrument the perso~. or
I the entity upoQ behalf of which the person..(.&:)
I San'Ole~o Co~ilif .-
My Comm. E,p"" JUl 6,2008" acted, executed the instrument.
WITNESS my hand and official seal.
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Place Notary 5881 Above Signature of Notary Public
OPTIONAL
Though.the information below;s not required by law, it may prove vafuable'topersons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document ~~~ 'AS R.=J} Pro~
Title or Type of Document: Cn Ve.ncuJ-
Document Date: 130 ej-. OOCJ-{ Number of Pages, i
Signer(s) Other Than Named Above: ~ ~ POW~ j ~\-' A.J-3
CapacitY(ieS)'ClaimR:,bY Signer ,
Signer's Name: ~ A- :::r. [_I~
o Individual Top of thumb here
o Corporate Officer;-, Title(s):
I o Partner - 0 Limited 0 General
I o Attorney in Fact
o Trustee
o Guardian or Conservator ~
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iCl1999 Natinn~1 Nutary ASSOciation' 9350 De Sola Ave., P.O. Box 2402' Chalsworth, CA 91313 240<" wwwnalionalnolary,org Prod. No. S90? Reorder. Call TolI'Free 1.800-876-6827
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7654
EXHIBIT A
All that certain real property situated in the County of San Diego, State of California,
described as'follows:
PARCEL A.
Lots 7, 8 and 9 inclusive of.the'City of Poway Tract No 90-05R, in the City of Poway,
County of San Diego, State of California, according to Map thereof No 12993, filed in
the Office of the County Recorder,of San Diego County, December.7, 1992,
PARCEL B
i
Non-e~c1usive easements for (i) vehicular access, i'lgress, and egress from public
streets at the location of thecurl:l cuts, passage. ofvehides over established circulation
elemehts, and' parking of vehicles within designated stalls, (ii) pedestrian access,
ingress and egress and passage over the parking area, (iii) non"exclusive easements
. , '
for the installation, use, maintenance, relocation and removal of utility lines or systems,
including but not limited to, sanitary sewers, storm dr~ins, water (fire and domestic),
gas, electrical, telephone and communication lines, and (IV) a non-exclusive easement
for surface drainage through the drainage patterns .and systems, over Lots 1, 2 and 3
inclusive of Map said 129'93, as more fully contained and described in article IV
"Easements" of that certain document entitled "Declaration of Construction and
Operation Covenants and Restrictions and Grant of Easements" recorded December
30, 1992 as File No 1992-0839924 of Official Records of San Diego County, and
subject to the Covenants, Conditions and Restrictions therein contained in said
document.
PARCEL C:
That certain "Building" and "Service Facilities" (as such terms are defined in that certain
shopping center lease dated September 3, 1992 and amended December 23, 1992 and
June 30, 1993, a memorandum of which lease was recorded in the Office of the County
J . . . . . - - .
Recorder of San Diego County, California on December 10, 1992 as File No 791843 of
Official Records situated on Lot 4 of Map No 12993 filed in said County Recorde(s
Office on December 7, 1992 as File No. 1992-07841"39 of Official Records.
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EXHIBIT B 7655
RESOLUTION NO pc04~78
A RESOLU;fION OF THE CITY COUNCIL
OF THE CITY OF POWM, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 04-09
ASSESSOR'S,PARCEL NUMBERS 317-'820-07.08 and 09
WHEREAS, Conditional Use Permit (CUP) 04-09 was subrnitted by Cingular
Wireless, Applicant, to install a telecornmunications facility on a developed property
located at 13425 Poway Road in the Town Center (TC) zone, and;
WHEREAS, the proposed telecommunications faCility consists of antennas
mounted to the existing building (i.e., 6 panel-type antennas mounted inside of
chimneys with antennas fad(lg the east, west, and north), and equipment to be located
inside of the existing cupola, and;
WHEREAS, on October 12, 2004, the City CounCil held a duly advertised public
hearing to solicit cornmentsfrom the public, both pro and con, relative to this
application.
NOW, THEREFORE,BE iT RESOLVED by the City Council of the City of Poway
as follows:
1 '
Section. t, The proposedproji3ct is Categorically Exempt as a Class 3 Categorical
Exemption frorn the Califorhia Environmental Quality Act (CEQA) pursuant to Section
15303 of the CEQA Guidelines, in that the project involves the installation of a small,
new telecommunications faCility providing a utility extension to serve the surrounding
areas,
Section 2: The findings, in. accordance with Section 17 48 070 of the Poway
MuniCipal Code, for CUP 04"09 to install a telecommunications faCility on, property
located at 13425 Poway Road in the Town Center(TC) zone, are rnade as follows:
A. The proposed location, size, design, and operating characteristics of the
pr()posed telecornrnunications faCility are in accord with the title and purpose of
Chapter 1748 of the Poway MuniCipal Code (Conditional Use Permit
Regulations), tl}e Gerieral Plan, and the development poliCies arid standards of
the City ill that the'facility has been designed, sited, and screened such that it will
not result in. visual impacts to the surrounding c()mmunity
B The location, size, design, and operating characteristics of the proposed
telecommunicati6nsfacility will be cornpatiblewithand will not adversely affect or
be matetiaily d,etrimental to adjacent uses, residents, buildings, structures, or
natural resources in that the facility has been designed and sited such that it will
not resulUn visual impacts to the surrounding community, The antennas will be
located behind radio transparent material chimney extensions and will not be
visible to the public. The equiprnent enclosure ,will be located in a raised existing
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Resolution No. P-04-78
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cupola, The use will comply with Federal G:ommunications Commission (FCC)
design and operational standards, The facility is unrnanned and will not create
,traffic irnpacts,
C The proposed teletornmunications facility is in. harrnony with the scale, bulk,
coverage" and density of, and is consistent with, adjacent uses in that the
proposed facility will be located behind radio transparent chimney extensions on
an existing comrnerCial building.
D There are adequate public facilities, services, and utilities available at the subject
site to serve the proposed"telecornmunications facility
E. There will not be <3 harrnful effect upon th~ desirable surrounding property
characteristics in thatt~e proposed telecommunications facility has been
designed, sited, and sc;reened such that it will not result in a visual impact ,to the
surrounding community; 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
I General Plan in that the proposed telecornmunications 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 telecommunications facility will enhance
telecommunications coverage in the City
H. There will not be significant harmful effects upon environmental quality and
natural resources in thaUhe proposed telecommunications facility is located on a
developed property and does not involve. the removal of natural habitat
resources
I There are no relevant negative impacts ,associated with the proposed
telecommunications facility that cannot be mitigated in that the facility will comply
with FCC design and operatiorial standards,
J. Tliat the potential impacts, and the, proposed location, size, design, and
operating characteristics ofthe proposed telecommunications facility will not be
materiallyinjuribus to properties or improvements in the vicinity, nor be contrary
to'the adopted General Plan, in thatthe facility has been design!l9 and sited such
that it will 'not result in visual irnpacts and will comply with FCC design and
operational standards.
K. The proposed telecommunications facility will comply with all the applicable
provisions of Chapter 17 48 of the Poway Municipal Code in that the facility has
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7657
Resolution No. P-04-78
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been designed and sited, such that it will not result in visual irnpacts and will
comply with'FCC design. and operational standards.
Section 3: ThE! City Council hereby approves CUP 04-09, to install a
telecommunications facility, consisting of 6 panel antennas .mounted behind a radio
transparent fa9ade of chimneys; and an equipment enclosure, which will be located in
an existing cupola, at 13425 Poway Road as shown on the plans dated August 12,
2004, subject to the following conditions:
A. Approval of this CUP r~quest 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.
B Within 30 days of the date o.fthis approval:
1 The applicant shall submit in writing that all conditions of approval have
been read and understood, and
2. The property owners shall execute a Covenant Regarding Real Property
I C. The us'e 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.
D The conditions of qJP04~09 shall remain in effect for the life of the subject
wireless t~lecomrnunications facility, and shall run with the land and be, binding
upon future owners, successors, heirs, and transferees of the current property
owner
E. CUP 04-09 may be subject to annual revieW; as deterrnined by the Director .of
Development Service!;, for compliance with ,the' conditions of approval and to
address concerns that rnayhave been raised during the prior yeaL
F The applicant shall obtain a Building Permit prior to installation of the facility
Prior to issuance of a Building Permit, the applicant shall comply with the
following:
1 The applicant shall comply with the latestadopted Uniforrn Building Code,
National Electric Code, and all other applicable codes and ordinances in
effect atthe time of Building Permit issuance.
2. The site shallqe developed in accordance. with the approved plan on file
in the Development Services Department (dated August 12, 2004) and the
conditions coritained herein, A final inspection from the appropriate City
Departments will be required
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Resolution No P-04-78
Page 4
3 The specific materials used to cLeatf:) ttJe paint and texture of the radio
transparent material to hide the a_ntennas shall be depicted on the building
plans. The se[egted building and rooflngrnaterials shall match, as closely
as possible, the existing walls and roof, to the satisfaction of the Director
of DevelopmentServices,
4 The operator 'shall submit calculations specifying the FCC's Maximum
Possible E:,xpo~[jre (MPE) levels in inhabited areas within 500 feet of the
facility in the areas that the levels produced are projected to be highest.
Upon issuance of the Building Permit ,and installation of the facility, the
applicant shall hire a qualified electrical e!:1gineer licensed by the State of
California to measure exposure leve.ls at the location after the' facility is in
operation. A report ,of these measurements, and the engineer's findings
with respect to compliance with MPE limits, shall be subrnitted to the
Director of Development Services:. The facility shall not commence
normal operations 'until it complies with. or has been modified to comply
with this standard" Proof of compliance ~hall be a certification provided by
the engineer who prepared the original report, In order to assure the
objectivity of the analysis, the City may require, at the applicant's expense,
independent verification .of the results of the analysis,
I
5, The antennas shall not be activated' for use until a final inspection is
conducted by the:City
6 The Building Permit plans shall include a utility plan that shows the
equipment layout.
G The applicant shall constructthe following improl(ements to the satisfaction ofthe
Director of Safety Services:
1. A 2A.1 OBCfir~ e1dinguisher must remain in place in the equipment
storage area, The location to be approved by.the'Fire Marshal.
H. Upon establishment of the wireless telecommunications facility, pursuant to
CUP 04-09, the following shall apply'
1 All facilities and related equipment .shall be maintained in good repair
Any damage from any cause shall be repaired as soon as reasonably
possible so as to minimize occurrences of dangerous conditions or visual
blight.
2. 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,
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7659
Resolution No P-04-78
Page 5
on weekday nights, At no tirn~ sh,all;eqt.iipmerit noise from any source
exceed the noise standards contained irlthe Poway Municipal Code,
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;theJacility shall be strictly liable for interference caused by
their facilities with City telecornrnunicationssysterns or other public
agency emergency communication systems. The operator shall stop
operations of the cell site and det~rh1ine the cause prior to restarting the
facility The op!3rator shall be responsible for all labor and equipment
costs fordeterll1ining the source of the interference, all costs associated
y.rith eliminating the interference (including, but not limited to, filtering,
installing cavities, installing directional ',antennas, powering down systems,
and engineering analysis), and all costs arisirigfrom third-party claims
againsttheCityatti'ibutable to the interference.
5. The wireless 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 ~ealth. To that end, no facility or
combinationoffacilities shall produce, at any time, power densities in any
inhabited area tliat exceed the FCC's Maximum Permissible Exposure
(MPE) limits for electric;,and magnetic field strength and power densities
for transmitters, or any more restrictive standard subsequently adopted or
promulgated by the City, County, State of c::alifornia, or the Federal
government. If th~re is any change in the manner in which the facility is
operated or cliange 'in the MPE, a report pursuant to Condition F 4 of this
Resolution shall be submitted to the Director of Development Services for
review and approval. The Director may also require an updated report as
part of any review of this Conditional Use Permit
Section 4 The owner of 'the wireless telecornmunicationsfacility shall remove all of
the comrnunicationequipme.nt. and associated structures, approved pursuant to this
permit within 60 da'ys of ceasirig operation ofthe telecomrnunications facility
Section 5, The approval of CUP 04-09 shall expire on October 12, 2006, at
5'00 p.m. unless, priortQtrat time, a Building Permit has beeri issued and construction
on the property in reliance on the CUP approval has commenced prior to its expiration,
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Resolution No. P"04" 78
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PASSED .ADOPJ'ED'and APPROVED. by the City Council of the City of Poway,
State of:Californ a, this 12th day of October 2004
ATTEST'
STATE OF CALIFORNIA )
)SS
COUNTY OF SAN DIEGO )
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I, Jeanne Bunch, Interim: City Clerk of the City, of Poway;do hereby certify, under
the penalty of perjury, that the foregoing Resolution No, , P-04.-78 , was duly
adopted by the City Coun~il ,at a meeting of said City Council held on the 12th day of
October 2004, and that itwas so, (jdopted by the following vote:
AYES. GOl.:DBY, HIGGINSON, REXFORD', CAFAGNA
NOES. NONE
ABSTAIN: NONE
ABSENT EMERY
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Je ne Bunch, Interim City Clerk
y of Poway