Covenant Regarding Real Property 2010-0516733D o C ## 2010 -0516733
RECORDING REQUEST BY: )� IIII I I III II I III II IIII I I III IIII II II
SEP 28, 2010 3:37 PM
CITY OF POWAY ) I (1
O FFICIAL
SAN DIEGOCOUNTY RECORDER'S OFFICE
WHEN RECORDED MAIL TO: DAVID L BUTLER, COUNTY RECORDER
FEES: 43.00
CITY CLERK ) PAGES: 11)
CITY OF POWAY )
X
POWAY CA 92074 -0789 ) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
APN: 321- 191 -27 /CUP 10 -06
COVENANT REGARDING REAL PROPERTY 173
J. Patrick Fleming, Jr. and Jill Fleming Ogilvie, PROPERTY OWNERS ( "OWNERS"
hereinafter), are the owners of real property described in Exhibit A, which is attached hereto and
made a part hereof, and which is commonly known as 14264 Tierra Bonita Road ( "PROPERTY"
hereinafter).
In consideration of the approval of CUP 10 -06 by the City of Poway ( "CITY" hereinafter),
OWNERS hereby agree 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, encumbrances, successors, heirs, personal representatives, transferees and
assigns of the respective parties.
In the event that CUP 10 -06 expires or is rescinded by City Council, or the OWNERS
terminate the use permitted by the CUP 10 -06, upon the request of the OWNERS, the City shall
expunge this Covenant from the record title of the PROPERTY and CUP 10 -06 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.
OWNERS:
Dated:
Dated:
Dated: 31 L
By. q /� . /
J. Patrick Fleming, Jr. (Notarize)
By :T ����
Jill Fleming Ogilvie (Notarize)
CITY OF POWAY
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17400
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
CML CODE § 1188
State of California
County of Sy.,
On VIVI° before me,
Data _
personally appeared
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'Notary Public - California €
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who proved to me on the basis of satisfactory
evidence to be the personM whose nami is�
subscribed to the within instrument and acknowledged
to me that p /she /they executed the same in
pis /her /i authorized capacity(iK, and that by
Vs /her /thir signature(,) on the instrument the
person(, or the entity upon behalf of which the
personv 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.
WITNESS my hand and
T fficial seal.
/a
Signature:
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document p
Title or Type of Document: CM VI?cQ"k 41d, ^f P"I
Document Date: 8�fal�l° Number of Pages:
Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer— Title(s):
❑ Individual
❑ Partner — ❑Limited
❑ Attorney in Fact
❑ Trustee
El General Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
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17401
CALIFO RNIA_A_LL- PURPOSE ACKNOWLEDGMENT
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State of California 1
County of L I A r ieli - GS J y
On 6 l /l `I J / o before me, Lori A • Tv I - NM Pu'ii i
Date Here Insert Name and Title of the officer
personally appeared T - Pa+-t c,K
LORI A. TRISBETT- WILLIAMS
Commission s 1804985
Notary Public - California
Los Angeles County
Comm. Expires Jun 30, 2012
Pace Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(S�,whose name(sl is/ar& subscribed to the
within instrument and acknowledged to me that
hefsheftf+ r executed the same in hi s „ heittice i authorized
capacity(+esj, and that by his /her /their signature(si on the
instrument the personK or the entity upon behalf of
which the person(!,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.
WITNESS my hand and o fficial seal.
Signatur 104 &4.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attache
Title or Type of Document.
Document Date.
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer —Title(s): _
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT
OF SIGNER
Number of Fages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney In Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT
OF SIGNER
02007 National Notary Association • 9350 De Soto Ave. PO Box 2AD2•Chatsxrorth, CA 913132402• v NationalNotary.org Item 85907 Reorder Call Toll-Frea 1- 8001
17402
EXHIBIT A
LEGAL DESCRIPTION
Those portions of Parcels 1 and 2 of Parcel Map No. 5067, in the City of Poway, County of
San Diego, State of California, filed in the Office of the County Recorder of San Diego,
September 2, 1976 as File No. 76- 288883
RESOLUTION NO. P -10 -29 1740 3
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 10 -06
ASSESSOR'S PARCEL NUMBER 321 - 191 -27
WHEREAS, Conditional Use Permit (CUP) 10 -06 was submitted by Gloria James -
Suarez (for Sprint), Applicant, to install a telecommunications facility at 14264 Tierra Bonita
Road, in the Rural Residential A (RR -A) zone; and
WHEREAS, the proposed telecommunications facility consists of two panel -type
antennas, two directional dish antennas, a GPS antenna, and an associated equipment
cabinet mounted on an existing Sprint mechanical equipment building; and
WHEREAS, on August 17, 2010, 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 Poway
as follows:
Section 1 : The proposed project is Categorically Exempt as a Class 3 Categorical
Exemption from the California Environmental Quality Act (CEQA) pursuant to Section 15303
of the CEQA Guidelines, in that the project involves the installation of a small
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 (PMC), for CUP 10 -06 to install a telecommunications facility on property located at
14264 Tierra Bonita Road, in the RR -A zone, are made as follows:
A. The proposed location, size, design, and operating characteristics of the proposed
telecommunications facility are in accord 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 in that the facility has been designed, sited and
screened such that it will not result in visual impacts to the surrounding community.
B. The location, size, design, and operating characteristics of the proposed
telecommunications facility will be compatible with, and will not adversely affect or
be materially detrimental to, adjacent uses, residents, buildings, structures, or natural
resources in that the facility has been designed and sited such that it will not result
in visual impacts to the surrounding community. The use will comply with Federal
Communications Commission (FCC) design and operational standards. The facility
is unmanned and will not create traffic impacts.
C. The proposed telecommunications facility is in harmony with the scale, bulk,
coverage, and density of, and is consistent with, adjacent uses in that the proposed
facility will be located in a rural hillside area and placed on an existing mechanical
equipment building, with only two dish antennas that will protrude above the existing
lattice and vegetative screen.
EXHIBIT B
17404
Resolution No. P -10 -29
Page 2
D. There are adequate public facilities, services, and utilities available at the subject site
to serve the proposed telecommunications facility.
E. There will not be a harmful effect upon the desirable surrounding property
characteristics in that the proposed telecommunications facility has been designed,
sited and screened 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 General Plan in that
the 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 that is proposed
in that the facility will enhance telecommunications coverage in the City and is
compatible with the four other existing onsite telecommunication facilities.
H. There will not be significant harmful effects upon environmental quality and natural
resources in that the 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 operational standards.
J. That the potential impacts, and the proposed location, size, design, and operating
characteristics of the 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 has been designed and sited such that it will not result in visual
impacts, 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 PMC in that the facility has been designed and sited such that it will
not result in visual impacts, and will comply with FCC design and operational
standards.
Section 3 : The City Council hereby approves CUP 10 -06 to install a telecommunications
facility that consists of two panel antennas, two directional dish antennas, a GPS antenna,
and an associated equipment cabinet on a developed residential property at 14264 Tierra
Bonita Road, as shown on the plans dated May 19, 2010, subject to the following
conditions:
(Planning)
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,
Resolution No. P -10 -29
Page 3 17405
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.
C. Within 30 days of the date of this 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.
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 10 -06 shall remain in effect for the life of the subject wireless
telecommunications facility and shall run with the land and be binding upon future
owners, successors, heirs, and transferees of the current property owner.
F. CUP 10 -06 may be subject to annual review, as determined by the Director of
Development Services for compliance with the Conditions of Approval, and to address
concerns that may have been raised during the prior year.
G. 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 latest adopted Uniform Building Code,
National Electric Code, and all other applicable codes and ordinances in effect at
the time of Building Permit issuance.
2. The site shall be developed in accordance with the approved plan on file in
the Development Services Department and the conditions contained herein.
A final inspection from the appropriate City Departments will be required.
(Planning)
3. A $3,000 deposit shall be submitted to ensure completion of the required
Confirming Radio Frequency (RF) Report, as specified in Condition of Approval
1.1 below. The deposit shall also be used to cover the costs an Independent
Consultant to review the report, as determined by the Director of Development
Services.
Resolution No. P -10 -29
Pa 17406
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 equipment
layout.
6. The specific materials used to paint the antennas and equipment shall be
depicted on the building plans, and shall be to the satisfaction of the Director
of Development Services.
7, The Applicant shall repair, to the satisfaction of the City Engineer, any damages
to the public and private roads that are caused by construction activity from this
project.
H. Prior to occupancy, the applicant shall comply with the following fire safety
requirements to the satisfaction of the Fire Marshal:
1. Maintain emergency vehicle access to the site at all times.
I. Upon establishment of the wireless telecommunications facility, pursuant to
CUP 10 -06, 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 limit
(MPE). 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 the facility shall not be allowed until the Director of Development
Services has determined that the facility is in compliance with the 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.
Resolution No. P -10 -29
Page 5 17407
2. 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.
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 applicant shall demonstrate to the City that they have entered into the
existing Private Road Maintenance Agreement for the private portion of Tierra
Bonita Road that accesses the site.
5. 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.
6. 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
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 California,
or the Federal government.
7. If there is any change in the operating characteristics of the facility, a report
pursuant to Condition 1.1 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.
8. Any service light shall only be operated when maintenance is being performed on
the equipment. The service light shall be adequately shielded and directed away
from adjacent residential uses or roadways. The service light(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.
174 08 Resolution No. P -10 -29
Page 6
Section 5 : The approval of CUP 10 -06 shall expire on August 17, 2012, 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 17th day of August 2010.
Don Higginson, May
I, Linda A. Troyan, MMC, City Clerk of the City of Poway, do hereby certify, under the
penalty of perjury, that the foregoing Resolution No. P- 10 -29, was duly adopted by the City
Council at a meeting of said City Council held on the 17th day of August 2010, and that it
was so adopted by the following vote:
AYES: CUNNINGHAM, MULLIN, KRUSE, HIGGINSON
NOES: NONE
ABSENT: BOYACK
DISQUALIFIED: NONE
n, MMC, City Clerk
of
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )