Covenant Regarding Real Property 2013-0334814 . � � � � ��� �-�a����� �
II I I III I II I illl II II II I III I I I I I II
RECORDING'REQUESTBY: ) ^^
, �� ,���� MAY 29, 2013 3:2� PM
CITY OF�POWAY ) �� OFFICIAL RECORDS
) n SAN DIEGO COUNTY RECORDER'S OFFICE
�WHEN'REGORDED MAILTO: ) �`�' EmestJ. Dionenburg,.Ji., COUNTY RECORDER
� - l� FEES: 40.00
CITY CLERK ) � PAGES: 9
CITY OF POWAY ) ��
POWAYXCA992074-0789 ) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
)
(This space forRecorder's Use�
APN: �317-153-2700
COVENANT REGARDING REAL PROPERTY
Poway-Nierman Limited Partnership, a Caiifornia Limited Partnership, ("OWNER" hereinafter),
is the owner of real property commonly .known as 12234 Poway Road, Poway, CA 92064
("PROPERTY,liereinafter), and more fully described.in'the attached Ezhi6it A.
In consideration of the approval of Conditional Use Permit 12-012 by the City of Poway
("CITY" hereinafte�), OWNER hereby agrees to abide by the conditions of approval contained in the
atfached 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 paRies.
In the event that Conditional Use Permit 12-012 expires or is rescinded by City Council, or the
OWNER terminates the use permitted by Conditional Use Permit 12-012, upon the request of the
OWNER the GITY shall expunge 3his Covenant from the record title of the PROPERTY and this
Conditional Use Permit 12-012 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 prevai�ing party shall be entitled to full reimbursement of all costs, including reasonable
attorneys' fees, from the other party.
OWNER: Poway=Nierman Limited'Paitriership
gr N1ER RN Oo iEr�}D Gl� LG� �
Dated: ,3�°I6�— �/.3 % �
James Nierman (Notarize)
Its: GED
CITY OF POWAY: �
Dafed: �o' ,� Bq: -
bert J. Mani , Di ect f o elopment'Services
M:\planning\13.reports\cup\cup12-012 t+mobile\covenant.docz
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CALIFORNIA ALL•PURPOSE ACKNOWLEDGNREPIT
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State of California 1
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County of 5�"V' D� ��JV �
On ��� ��► �i3 beforeme, 7J�GIn /-C✓<<�C,`'� !� T�ir'1/1 ���I � ,
� Date 1- Here Insetl Na a�TNe ol the OHicer �-
personally appeared �4MC�S 1 ERA/� ,/1�
Name(s)ol Signer(s)
who proved to me on the basis of satisfactory evidence to
be the personj6j whose name(,Qj'is/�subscribed to the
within instrument and acknowledged to me that
�I,�/t�fey executed the same in��F�ir autfiorized
capacity(i�, and that by�rft�r signature(� on the
instrument the persora{s), or the entity upon behalf of
SUSAN nRLEDGE. which the person(s3'.acted, executed the instrument.
F.���.,�: Commission # 1942667
�< '�'m�: No;a.ry Public -Califomia i
_ �"`� I certit under PENALTY OF PERJURY under the laws
_ °'"` San Oiero County � Y
�� My Comm.Expires Jun 30,2�75 of the State of Califomia that the foregoing paragraph is
true and correct.
WITNESS my liand R oificial seal.
Signature
Place Notary Seal Above SignaWre ol ry
OPT/ONAL
Though the in/ormation 6elow is not required by law, it may prove valuable to persons relying on the document
and could prevent lraudulent removal and reattachment ol this form to another document.
Description of Attached Document _
Title or Type of Document: l���lrn.lit�7 ���`'�� �� �`v'� ��
2 D
Document Date: S ' �� ' � 7 Number of Pages:
Signer(s) OtherThan Named Above:
Capacity(ies) Claimed by Signer(s)
Signer'sName: Signer's Name:
C'7'fndiviilual ❑ Individual
❑ Corporate Oflicer—Title(s): ❑Corporate Officer—Title(s):
❑ Partner—O Limited ❑ General ❑ P,artner—�CJ Limited ❑ General
❑ Aflorney in Fact • ' ❑Attorney in Fact • �'
❑ TNSI00 Top of thumb�ere p Trustee Top of�numb here
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
p200]Na�ionalNOtary0..sceiation•9350DeSotoAVa.,PO.BOx2402•ChoLrvroM,CA913132402•wwwNaOOnalNOWryorg ItemM590] ReoNer.CaIITdLFreebB04816-682]
EXI�IYBYT ••A„
Alf that certain real property situated en the County of San Diego, State
of California, described as follows:
Parcel A:
Parcel 4 ofParcel iNap Wo. 137T4, in the City,of Poway, County of San
Diego, State of California, filed in the OfFce of the County Recorder of
San Diego County, March 12, 1985 as-File iNa. 8�080780 of�cial
Records.
Parcel B•
Non-exclusive easements for ingress and egress and for the pas;age.of
motor vehicles into, aut of, on, over and acwss those certain•easements
described in Article I of that certain document.entitled �'Reciptocal
Mutual Access Agreementn'recorded 9uly 2, 1985 as:Instrument Mo. 85-
238010 of OfFcial Reco�ds, in the OKice of the Courity'Recorder�of San
Diego County.
Assessor's Parcel Number: 317-153-27-00
Exhibit B
RESOLUTION NO. P-13-09
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT 12-012
ASSESSOR'S PARCEL NUMBER 317-153-27
WHEREAS, Conditional Use Permit (CUP) 12-012 was submitted by Depratti,
Inc. for T-Mobile, Applicant, to install six (6) new wall-mounted antennas and a roof-
mounted equipment cabinet to re-establish a telecommunications facility on an existing
commercial building located at 12234 Poway Road, in the Community Business (CB)
zone; and
WHEREAS, on May 7, 2013, 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 Califomia Environmental Quality Act (CEQA) pursuant to Section
15303(d) of the CEQA Guidelines, in that the project involves the installation of small
replacement equipment to re-establish a telecommunications facility which will provide a
utility e�ension to serve the surrounding areas.
Section 2: The findings, in accordance with Section 17.48.070 of the Poway
Municipal Code (PMC), for CUP 12-012 to install six new wall-mounted antennas and a
replacement equipment cabinet to re-establish a telecommunications facility on the
commercial building located at 12234 Poway Road are made as follows:
A. The 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 poticies and standards of the City in that the facility has been,
designed, sited and screened such that it will not resulf in visual impacts to the
surrounding community.
B. The location, size, design, and operating characteristics of the
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) operational standards. The
facility is unmanned and will not create traffic impacts.
C. The telecommunications facility is in harmony with the scale, bulk, coverage, and
density of, and is consistent with, adjacent uses in that the facility has been
designed to minimize visual impacts and will operate in compliance with FCC
operational standards.
Resolution No. P-13-09
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 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 requi�e pe�iodic 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 proposed telecommunications facility will 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 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 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 operational
standards.
Section 3: The parties are hereby informed that the time within which judicial review
of this decision must be sought is governed by Section 1094.6 of the California Code of
Civil Procedure.
Section 4: The City Council hereby approves CUP 12-012 to install six new panel
antennas and a replacement equipment cabinet to re-esta6lish a telecommunications
facility on an existing commercial building located at 12234 Poway Road as shown on
the approved plans on file with the City, subject to the following conditions:
Resolution No. P-13-09
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. Within 30 days of the date of this approval, and before the issuance of any
permit: (1) the Applicant shall submit in writing thaf 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.
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 12-012 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 12-012 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:
(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.
Resolution No. P-13-09
Page 4
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 and submittal 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 cost 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 antennas and the replacement equipment cabinet shall be a color and
texture that blends with the exterior building walls. A color sample shall
be provided to the Planning Division for review and approval. The
approved color shall be depicted on the building plans.
H. Upon establishment of the wireless telecommunications facility, pursuant to
CUP 12-012, the following shall apply:
(Planning)
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 [eport 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 Federal guidelines. The City may conduct an
independent verification of the results of the analysis provided by the
operator, at the operator's cost.
Resolution No. P-13-09
Page 5
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.
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(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.
8. 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.
Resolution No. P-13-09
Page 6
Section 5: The approval of CUP 12-012 shall expire on Mav 7 2015, 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.
PASSED, ADOPTED and APPROVED by the City Council of the City of Poway,
State of California, this 7th day of May 2013.
� •
��
Don Higginson, Mayor
ATTEST:
III�/V' (/�fiV�P
Kristen M Crane, Interim City Clerk
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, Kristen M. Crane, Interim City Clerk of the City of Poway, do hereby certify,
under the penalty of perjury, that the foregoing Resolution No. P-13-09, was duly
adopted by the City Council at a meeting of said City Council held on the 7th day of
May 2013, and that it was so adopted by the following vote:
AYES: CUNNINGHAM, VAUS, GROSCH, MULLIN, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
/�'" ' �"�'�`�- _
Kristen M. Crane, Interim City Clerk
City of Poway