Covenant Regarding Real Property 2010-0516284r
RECORDING REQUEST BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P O BOX 789
POWAY CA 92074 -0789
D 0 C 201 0 -051 52$4
SEP 28, 2010 3:08 PM 167
1� OFFICIAL RECORDS
V" SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L BUTLER, COUNTY RECORDER
FEES: 4000
PAGES: 9
I IIIIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII IIII IIII
APN: 317-820-08/ CUP 09 -10
COVENANT REGARDING REAL PROPERTY
Azure Creekside Corporation, PROPERTY OWNER ( "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 13413 -13425 Poway Road
( "PROPERTY" hereinafter).
In consideration of the approval of CUP 09 -10 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, encumbrances, successors, heirs, personal
representatives, transferees and assigns of the respective parties.
In the event that CUP 09 -10 expires or is rescinded by City Council, or the
OWNER terminates the use permitted by CUP 09 -10, upon the request of the
OWNER the City shall expunge this Covenant from the record title of the PROPERTY
and this CUP 09 -10 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.
OWNER: Azure Creekside Corporation
Dated: 21 q hD B
(Notarize)
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
of
personally appeared
who proved to me on the basis of satisfactory
evidence to be the person(S_yvhose name(, is /W
subscribed to the within instrument and acknowledged
to me that he/she /t*jc executed the same In
bls//her/thBir authorized capacity, and that by
J INIS S. COOPER f 64s[her /Olitir signatura(s) on the instrument the
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Notary Public # 1857341 c - CalROrnia = persorili or the entity upon behalf of which the
Oranpa County person(�acted, executed the instrument.
MY Comm. Et Iran Ao 7, 2013
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 off" seal.
Signa ure:
Place Notary Seal Above nature of Notary Pu h
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 ocurr
Title or Type of Do ument:
AC :13r
Document Date:
Signer(s) Other Than amed Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer— Title(s):
❑ Individual
❑ Partner— ❑ Limited. []General Top or thumb here
❑ Attorney in,Fact _
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
2010 National Notary Association • NationalNotary oro
Signer's Name:
❑ Corporate Officer — Title(s):
CIVIL CODE § 1189
—9
❑ Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
• Trustee
• Guardian or Conservator
❑ Other:
Signer Is Representing:
Item #5907
16777
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EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situated in the County of San Diego, State of California, described
as follows:
Parcel A
Lots 4 through 9, inclusive of the City of Poway Tract No. 90 -053, 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
Non - exclusive easements for (i) vehicular access, ingress and egress from public streets at the
location of the curb cuts, passage of vehicles over established circulation elements, 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 sewer, storm drains,
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 12993, 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 Document
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
Swopping 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 Recorder of San
Diego County, California on December 10, 1992 as Instrument No. 1992- 0791843 of Official
Records situated on Lot 4 of Map No. 12993 filed in said County Recorder's Office on
December 7, 1992 as File No. 1992- 0784139 of Official Records.
16778
'RESOLUTION NO. P -10 -28 16779
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 09 -10
ASSESSOR'S PARCEL NUMBER 317 - 820 -08
WHEREAS, Conditional Use Permit (CUP) 09 -10 was submitted by Becky Siskowski
(for Clearwire), Applicant, to install a telecommunications facility at 13413 -13425 Poway
Road, in the Town Center (TC) zone and Poway Road Specific Plan area; and
WHEREAS, the proposed telecommunications facility consists of three panel -type
antennas, three directional dish antennas, a GPS antenna, and an associated equipment
cabinet mounted on the roof of an existing commercial 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 09 -10 to install a telecommunications facility on property located at
13413 -13425 Poway Road, in the TC zone and Poway Road Specific Plan area, 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, people, 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
incorporated into an existing commercial center.
EXHIBIT B
16780
Resolution No. P -10 -28 -
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 other existing onsite telecommunications facility.
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.
1. 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 09 -10 to install a telecommunications
facility that consists of three panel antennas, three directional dish antennas, a GPS
antenna, and an associated equipment cabinet on the roof of an existing commercial
building at 13413 -13425 Poway Road, in the Town Center (TC) zone and Poway Road
Specific Plan area, as shown on the plans dated May 14, 2010, 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
16781
Resolution No. P -10 -28
Page 3
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 09 -10 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 09 -10 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.
1 . A $3,000 deposit shall be submitted to ensure completion of the required
Confirming Radio Frequency (RF) Report, as specified in Condition of Approval
H.1 below. The deposit shall also be used to cover the costs of an Independent
Consultant to review the report, as determined by the Director of Development
Services.
Resolution No. P -10 -28
Page 4 16 7 E 2
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. Upon establishment- of the wireless telecommunications facility, pursuant to
CUP 09 -10, 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.
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.
Resolution No. P -10 -28
Page 5 16783
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
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.
6. If there is any change in the operating characteristics of the facility, a report
pursuant to Condition H.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 shall only be operated when maintenance is being performed
on the equipment. The service light shall be adequately shielded and directed
away from adjacent 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.
Section 5 : The approval of CUP 09 -10 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.
J'
Resolution No. P -10 -28
Page 6 16784
PASSED, ADOPTED and APPROVED by the City Council of the City of Poway,
State of California, this 17th day of August 2010.
Don Higginson, Mayor
ATTEST:
Li A. T oyan, MMC, City Cl rk
STATE OF CALIFORNIA )
)SS
COUNTY OF SAN DIEGO )
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 -28, 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
,(A. Troyan, MMC, City Clerk
of Poway