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Covenant Regarding Real Property 2011-0711433RECORDING REQUEST BY: CITY OF POWAY ) WHEN RECORDED MAIL TO: ) rx CITY CLERK ) ) I IiP CITY OF POWAY P O BOX 789 ) POWAY CA 92074 -0789 � APN- 275 - 510 -19 DEC 30, 2011 4:59 PIS OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER F fig: 12 2 43.00 PAGES: 10 (This space-for Recorder's use) - COVENANT REGARDING REAL PROPERTY St. Bartholomew's Church, ( "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 16275 Pomerado Road ( "PROPERTY" hereinafter). In consideration of the approval of Conditional Use Permit (CUP) 10 -22 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 In the event that CUP 10 -22 expires or is rescinded by City Council, or the OWNER terminates the use permitted by CUP 10 -22, upon the request of the OWNER the City shall expunge this Covenant from the record title of the PROPERTY and this CUP 10 -22 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: Dated: iz 23 b( r- iZ-e4 Freder' k T ayer St. Bartholomew's Church Dated: (Notarize) CITY Ab Y: Dated: �� I� j By: ani , Di recto of eve pment Services Wplanning \11 report \cup \cup 10 -22 verizon at st bartholomews church \covenant.docx 1/-//(p 24123 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of U lealO J On 'D e0'6 �f�ll before me, 1 e xl �� & 1i T NAa v �I� i ic, , Date I Here Insert Name and Title of the Officer' personally appeared - i���`C �fC�L- - ha e r Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person''whose name(K is /ate- subscribed to the within instrument and acknowledged to me that executed the same in his /h&;W4@W authorized capacity(ies), and that by his /weir signatureXl 'on the instrument the person(,9j, or the entity upon behalf of which the person acted, executed the instrument. MICHELLE SHELMN Commission * 1937036. 1 certify under PENALTY OF PERJURY under the laws Notary Public - California of the State of California that the foregoing paragraph is San Diego County true and correct. my Conran, res Ma 19.2015 WITNESS hand and official seal. Signature L(Aa-2W� Place Notary Seal Above Signature of Notary Public OPTION A L 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 �I Title or Type of Document: J � 6 V r ?eeJ Y- eii Document Date: (7eee�b e I/ lo-11A , L�E�ti Number of Pages: q 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: Top of thumb.here 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 of • • ©2007 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91 31 3 -2402 - www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1- 800 - 876 -6827 ' 24124 EX U`All II at portion of Lot 4 of Section 26, Township 13 South, Range 2 West, Saga Bernardino Ivferidian, in the County of San Diego,, State of California, According to United States Government Survey approved April 22, 1876, described as follows Beginning at a point on the Easterly Boundary of Rancho San Bernardo which is distant North 13 151 43" East 660 feet from. the Southwest corner of said Lot 4 as said corner is shown on Map of Valle Verde Estates Unit loo: 1, according to Map thereof No. 4185. filed in the office of the County Recorder of said County; thence along said Easterly lihls South 13 15' 43 "' West 660 feet to said Southwest corner; thence along the South line of Section 26, South 89 11' 32" East 600 feet,- thence North 25 00? West 200 feet; thence North 31 43115" West 411.50 feet; thence North 51 00' West 190 feet to the point of beginning. Exhibit s 24125 RESOLUTION NO. P -11 -27 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA APPROVING CONDITIONAL USE PERMIT -10 -22 ASSESSOR'S PARCEL NUMBER 275 - 510 -19 WHEREAS, Conditional Use Permit (CUP) 10 -22 was submitted by Milestone Wireless (for Verizon), Applicant/St. Bartholomew's Church, Owner, to modify an existing Verizon telecommunications facility and install two additional panel antennas on the existing tower of St. Bartholomew's Church, located at 16275 Pomerado Road, and install one wall- mounted GPS antenna within an existing wireless equipment enclosure and extend cable from the equipment enclosure to the antennas. The church is located within the Rural Residential C (RR -C) zone; and WHEREAS, on November 15, 2011, 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 antennas, and cable to an existing small telecommunications facility 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 -22 to.install additional antennas to an existing telecommunications facility located at St. Bartholomew's Church at 16275 Pomerado Road, are made as follows: A. The location, size, .design, and operating characteristics of the telecommunications facility as proposed with the additional antennas 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 telecommunications facility as proposed with the additional antennas 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 existing facility has operated, on the site for many years without negatively impacting surrounding land uses. C. The telecommunications facility as proposed with the additional antennas is in harmony with the scale, bulk, coverage, and density of, and is consistent with, adjacent uses in that the facility will blend in with the existing building. 24126 Resolution No. P -11 -27 Page 2 D. There are adequate public facilities, services and utilities available at the subject site to serve the telecommunications facility, as proposed with the additional antennas. E. There will not be a harmful effect upon the desirable surrounding property characteristics in that the telecommunications facility, as proposed with the additional antennas, has been designed, sited and screened such that it will not result in a visual impact to the surrounding community, and the existing facility has operated and is required to continue to operate in compliance 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 telecommunications facility, as proposed with the, additional antennas, 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 will not generate additional traffic. H. There will not be significant harmful effects upon environmental quality and natural resources in that the telecommunications facility, as proposed with the additional antennas, will not involve the removal of natural habitat resources. There are no relevant negative impacts associated with the telecommunications facility, as proposed with the additional antennas. The facility has' been designed to comply with and will comply with FCC design and operational standards. J. That the potential impacts, and the location, size, design, and operating characteristics of the telecommunications facility, as proposed with the additional antennas, 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 telecommunications facility, as proposed with the additional antennas, will comply with all the applicable provisions of Chapter 17.48 PIVIC 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 -22 to install two panel antennas to the existing telecommunications facility on the tower of St. Bartholomew's Church, located at 16275 Pomerado Road, and to install one wall - mounted GPS antenna within an existing wireless equipment enclosure and extend cable from the equipment enclosure to the antennas, as shown on' the approved plans on file with the City, subject to the following conditions: 24127 Resolution No. P-1.1-27 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 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. The conditions of approval established under prior entitlements approved for the project (including CUP 00 -07 and Minor Development Review Application 00 -15), Resolution No. P- 00 -41, and the approval letter to install a back -up generator and enclosure dated October 8, 2004, for a Minor Modification to CUP 00 -07M, shall remain in effect for the life of the project, and shall run with the land and be binding. upon future owners, successors, heirs, and transferees of the current property owner. D. Within 30 days of the date of this approval, and before the issuance of any permit: (1) the applicant shall submit in writing that .all conditions of approval have been read and understood; and (2) the property owner shall execute a Covenant Regarding Real Property. In order for the City to prepare the Covenant, the applicant must first submit a legal description of the subject site. E. 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. F. The conditions of CUP 10 -22 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. G. CUP 10 -22 may be subject to annual review, as determined by the Director of Development Services, for compliance with the conditions of approval and to address maintenance related concerns that- may have been raised during the prior year. Review of compliance with Federal Communication Commission .(FCC) guidelines is administered by the FCC. 24128 Resolution No. P -11 -27 Page 4 H. The applicant shall obtain a Building Permit prior to installation of the additional antennas and cable. . Prior to issuance of a Building Permit, the applicant shall comply with the following: (Planning) 1. The applicant shall comply with the latest adopted building and electric codes, 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 plans on file in the Development Services Department and the conditions contained herein. A final inspection from the appropriate City departments will be required. 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 may also be used to cover the cost of an Independent Consultant to review the report, as determined by the Director of Development Services. 4. The Building Permit plans shall include a utility plan that shows the equipment layout. 5. The panel antennas, coax cable and cable cover shall be. a color and texture to blend with the tower fascia and other antenna facilities on the building. A note shall be added to the building plans specifying these requirements. Additionally, the GPS antenna shall be a color that blends with the existing masonry equipment enclosure. This requirement shall also be noted on-the building plans. 6. The applicant shall repair, to the satisfaction of the City Engineer, any damages to public and private roads that are caused by construction activity from this project. 7. The antennas shall not be activated for use until the Building Division and Planning Division conduct a final inspection. Upon establishment of the wireless telecommunications facility, 'pursuant to CUP 10 -22, 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 (MPE) limit. 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 with the additional antennas is in operation and shall include the cumulative RF levels of all the antennas of the telecommunications facility at the subject 2 241..29 Resolution No. P- 1.1 -27 Page -5 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 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. The wireless telecommunication facility shall comply with all applicable FCC operation and design standards. 3. 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. 4. 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. 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. 7.. If there is any change in the operating characteristics of the facility, a Confirming RF 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. 24130 . Resolution No. P -11 -27 Page 6 8. Any service light(s) shall only be operated when maintenance is being performed on the equipment. The service light(s) 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 -22 shall expire -on November 15, 2013, 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 C i ty of Poway, ay, State of California, this 15th day of November 2011. 1 Don Higginson, Mayor ATTEST: Tina M. White, Deputy City Clerk STATE OF CALIFORNIA ) ) SS COUNTY OF SAN DIEGO ) Resolution No. P -11 -27 Page:7 24131 I, Tina M. White, Deputy City Clerk of the City of Poway, do hereby certify, under the penalty of perjury, that the foregoing Resolution No. P- 11 -27, was duly adopted by the City Council at a meeting of said City Council held on. the 15th day of November 2011, and that it was so adopted by the following vote: AYES: BOYACK, GROSCH, MULLIN, CUNNINGHAM, HIGGINSON NOES: NONE ABSENT: NONE DISQUALIFIED: NONE Tina M. White, Deputy City Clerk City of Poway