Covenant Regarding Real Property 2010-0642705D 0 C # 2010 - 0042705
11 1111 11 1111111 11 111111111111111111111111111111 11 1 111 11 1 1111 1 111111 IN
RECORDING REQUEST BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
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CITY CLERK
CITY OF POWAY
P O BOX 789
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POWAY CA 92074 -0789
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OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L BUTLER, COUNTY RECORDER
FEES. 4300
PAGES: 10
(This space for Recorder's Use)
APN: 317- 153 -26
COVENANT REGARDING REAL PROPERTY
Poway - Nierman Limited Partnership, 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 12218 Poway Road ( "PROPERTY hereinafter):
In consideration of the approval of CUP 10 -11 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In the event that CUP 10 -11 expires or is rescinded by the City Council, or the OWNER
terminates the use permitted by CUP 10 -11, upon the request of the OWNER, the City shall
expunge this Covenant from the record title of the PROPERTY and CUP 10 -11 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:
P ay- Nierman Limited Partnership (Notarize)
SIVMI Ni(jAAi*vv /41q cx~ c- -A LGC
CITY OF P- O�W ✓ AY: JAMISS S. IV1dAM+
Dated: �a By: 07i'
ert J. Mani , Dir ctor f evelopment Services
M \planning \10repor cup \10 -11 Sprint\Covenant.docx
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 7789
State of California
County of Do Y) 1 &e cdp
On (xA • is -oZ 10 before me,
Date \ I N Here Insen
personally appeared
N IeI
Narrate) of Sic
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(§) acted, executed the instrument.
JULIE AGUILAR
G ARY PL PUBLIC- CWFORIIA IBra. CAUFOI
NOTARY I certify under PENALTY OF PERJURY under the
�.
SAN DIEGO COUNTY laws of the State of California that the foregoing
LryCa aRgules'J"8,2013 paragraph is true and correct.
WITNESS my hand and official seal.
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
Title or Type of Document:
Document Date.
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer - Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney In Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
Number of Pages:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General
❑ Attorney In Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT_
'OF SIGNER
ora
EXHIBIT "A"
All that certain real property situated in the County of San Diego, State of
California, described as follows:
Parcel A:
Parcel 3 of Parcel Map No. 13714, in the City of Poway, County of San
Diego, State of California, filed in the Office of the County Recorder of San
Diego County, March 12, 1985 as File No. 85- 080780 of Official Records.
Parcel B:
Non - exclusive easements for ingress and egress and for the passage of
motor vehicles into, out of, on, over and across those certain easements
described in Article I of that certain document entitled "Reciprocal Mutual
Access Easement Agreement ", recorded July 2, 1985 as File No. 85-
238010 of Official Records, in the Office of the County Recorder of San
Diego County.
Assessor's Parcel Number: 317 - 153 -26
RESOLUTION NO. P-10-30,
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF' POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 10 -11
ASSESSOR'S PARCEL NUMBER 317- 153 -26
WHEREAS, Conditional Use Permit (CUP) 10 -11 was submitted by Becky
Siskowski (for Sprint), Applicant; Poway - Nierman Limited Partnership, Owner, to modify
an existing Sprint telecommunications facility located on the roof of the building at
12218 Poway Road, within the Pomerado Plaza commercial center, in the Community
Business (CB) zone; and
WHEREAS, the proposed telecommunications facility consists of three antennas,
three microwave dishes, three remote radio units, 'a GPS antenna, and associated
equipment, and
WHEREAS, on September 21, 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 -1 i to install a telecommunications facility on property located at
12218 Poway Road, in the.CB 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, 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.
EXHIBIT 8
Resolution No. P -10 -30
Page 2
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.
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 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.
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 -11 to install a telecommunications
facility that consists of three panel antennas, three microwave dishes, three remote radio
units, a GPS antenna, and associated equipment on the roof of an existing commercial
building at 12218 Poway Road, in the CB zone, as shown on the plans dated June "17,
2010, subject to the following conditions:
Resolution No. P -10 -30
Page 3
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 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 -11 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 -11 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.
Resolution No. P -10 -30
Page 4
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 coverthe costs of an
Independent Consultant to review the report, as determined by the Director
of Development Services.
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 establishment of the wireless telecommunications facility, pursuant to
CUP 10 -11, the following shall apply:
1. To prevent occupational exposures in excess of the FCC guidelines, no
access within 12 feet directly in front of the antennas, such as might occur
during maintenance work on the roof, shall be while the base station
is in operation.
Explanatory warning signs shall be posted on the screens in front of the
antennas, such that the signs would be readily visible from any angle of
approach to persons who might need to work within that distance.
I. Upon establishment of the wireless telecommunications facility, pursuant to
CUP 10 -11, 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.
Resolution No. P -10 -30
Page 5
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 telecom munications 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.
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 dens_ ities 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 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
Resolution No. P -10 -30
Page 6
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 10 -11 shall expire on September 21 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 21st day of September 2010.
Don Higginson, Mayor
ATTEST:
Resolution No. P -10 -30
Page 7
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 -30, was duly adopted by the
City Council at a meeting of said City Council held on the 21st day of September 2010,
and that it was so adopted by the following voter
AYES: CUNNINGHAM, MULLIN, KRUSE, HIGGINSON
NOES: NONE
ABSENT: BOYACK
DISQUALIFIED: NONE
City
, MMC, City Clerk
M: \planning \lDFeport \cup \cup10 -11 sprinl\Reso.docx