Covenant Regarding Real Property 2014-0066643APN: 321 - 191 -27 /CUP 11 -004
D o C # 201 4 - 0066643
jl II IIII III I I -IIIII IIIII I III III I IIIII 1 1111111 IIIII I II
FEB 19, 2014 9:33 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Einesl J. Dranenbuig, Jr., COUNTY RECORDER
FEES: 43.00
PAGES: 10
111111 IIIII IIIII IIIII IIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
,ua pp avw wl mucuruer'5 use)
COVENANT REGARDING REAL PROPERTY
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, which is commonly known as 14264 Tierra Bonita Road ( "PROPERTY"
hereinafter).
In consideration of the approval of CUP 11 -004 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In the event that CUP 11 -004 expires or is rescinded by City Council, or the OWNERS
terminate the use permitted by the CUP 11 -004, upon the request of the OWNERS, the City shall
expunge this Covenant from the record title of the PROPERTY and CUP 11 -004 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: _ ZS // y
Dated: -0�XY
Dated: F I ki
OWNERS:
By: �. ✓� �� 2
J. Patrick Fleming, Jr. (Notarize)
By: ��
Fleming Ogilvie (Notarize
CITY OF POWAY
Wplanning \13 reports \CUP \CUP 11 -004 AT &T Faux Tree \Cov.docx
Services
N -o //
RECORDING REQUEST BY:'
CITY OF POWAY
(�(
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P O BOX 789
1
POWAY CA 92074 -0789
APN: 321 - 191 -27 /CUP 11 -004
D o C # 201 4 - 0066643
jl II IIII III I I -IIIII IIIII I III III I IIIII 1 1111111 IIIII I II
FEB 19, 2014 9:33 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Einesl J. Dranenbuig, Jr., COUNTY RECORDER
FEES: 43.00
PAGES: 10
111111 IIIII IIIII IIIII IIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
,ua pp avw wl mucuruer'5 use)
COVENANT REGARDING REAL PROPERTY
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, which is commonly known as 14264 Tierra Bonita Road ( "PROPERTY"
hereinafter).
In consideration of the approval of CUP 11 -004 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 11 -004 expires or is rescinded by City Council, or the OWNERS
terminate the use permitted by the CUP 11 -004, upon the request of the OWNERS, the City shall
expunge this Covenant from the record title of the PROPERTY and CUP 11 -004 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: _ ZS // y
Dated: -0�XY
Dated: F I ki
OWNERS:
By: �. ✓� �� 2
J. Patrick Fleming, Jr. (Notarize)
By: ��
Fleming Ogilvie (Notarize
CITY OF POWAY
Wplanning \13 reports \CUP \CUP 11 -004 AT &T Faux Tree \Cov.docx
Services
N -o //
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of I
Los liye�eS —
On "3-� bf
Date ✓
personally appeared
S. BRADLEY
Commission # 1993706
i
CALIFORNIA ALL-PURPOSE, ACKNOWLEDGMENT
State of California
County of v� C t I
On before me, CX5: ry�Gta.o vyltt'c
Date r^�Hem Insert Name mat Ti e of NTI e Omcer
personally appeared �` –h��`
Names f Slgner(s)
DEBRA E. t,C.r....;;
Commission # 1901232
s Notary Public - Caldolnia
San Diego County
M Co
mm. P 20141
DEBRA E. ADAMS
Commilislon a 1907232
C Notary Public- California
San Diego County
M Comm. ExpiresAi;fB,2014'
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) istare 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(s) 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 official seal.
Signature kid—w" (' o4t rws
�—' 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:
❑ Individual
❑ Corporate Officer— Title(s): —
El Partner — El Limited _❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
'Signer Is Representing:
RIGHTTHUMBPRINT
OF. SIGNER
0
Number of Pages:
Signer's Nai
❑ Individual
❑ Corporate Officer— Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
Guardian or Conservator
❑ Other:
Signer Is Representing:
GHF HUMBPI
OTSGNER"RN
0
02007 National Notary Aasociation•9350 De Soto Am., P.O. B. 2402•Chat.rth, CA 91313 -2402• vmhv.NationalNatary org Ilem #5907 Reortlec Cali Toll- Freel8 76-6827
Exhibit A
PARCEL A:
Those portions of Parcels -1 and 2 of Parcel Map No. 5067 in the County, of San Diego, State of
California, filed in the Office of the County Recorder of San Diego County, September 2, 1976
as File No. 76- 288883 of Official Records, being described as follows
Commencing at the Southeast corner of Parcel 1 of Parcel Map'5067 recorded September 2, 1976
in San Diego County as described above; thence North 88 ° 17590 West 503.02 feet being the
Southeast comer of Parcel of Parcel Map No. 5067, being the TRUE POINT OF BEGINNING;
thence North 39 052'000 West 110 feet; thence North 49 045'09° West 408.00 feet; thence North
00' 16147° West 318.15: feet to the Northerly boundary of saidParker land, thence North
88 °21'02° West 442.21 feet of theNorthwest comer of said Parker land, thence South 00' 15'02"
East 654.49 feet to the Southwest comer of said Parker land; thence' South 88' 1 T59' East 823.00
feet to the TRUE POINT OF BEGINNING
RESOLUTION NO. P -13 -23
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING CONDITIONAL USE PERMIT (CUP) 11 -004
ASSESSOR'S PARCEL NUMBER 321- 191 -27
WHEREAS, Conditional .Use Permit (CUP) 11 -004 was submitted by PlanCom,
Inc. for AT &T, Applicant/Jill and Patrick Fleming, Owner, to modify a Conditional Use
Permit (CUP) to upgrade an existing AT&T wireless telecommunications facility with a
faux tree structure that will contain three antenna sectors containing a total of 12
antennas and 12 Remote Radio Units (RRU) located at 14264 Tierra Bonita Road,
within the Rural Residential -A (RR -A) zone; and
WHEREAS, on August 20, 2013, the City Council held a duly advertised public
hearing to solicit comments from the public, both for and against, 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(d) of the 2093 CEQA Guidelines, in that the project involves the
installation of a telecommunications facility which will provide 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 11-004 to install a faux tree structure that will contain
three antenna sectors containing a total of 12 antennas and 12 Remote Radio Units
(RRU) located at 14264 Tierra Bonita Road, within the Rural Residential -A (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.
1:711176:3
Resolution No. P -13 -23
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 located in a rural hillside area and consist of a "broadleaf'
faux tree that will blend in with the surrounding vegetation.
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.
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 PMC Chapter 17.48, 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 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.
Resolution No. P -13 -23
Page 3
Section 4: The City Council hereby approves CUP 11 -004 to replace existing AT &T
wireless telecommunications antennas with a faux tree structure that will contain three
antenna sectors containing a total of 12 antennas and 12 Remote Radio Units (RRU)
at 14264 Tierra Bonita Road as shown on the approved plans on file with the City,
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 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 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.
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 11 -004 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 11 -004 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:
Resolution No. P -13 -23
Page 4
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 the Development Services
Department to ensure completion and submittal of the required Confirming
Radio Frequency (RF) Report, as specified in condition of approval H.1
below. The deposit'sha Ili: 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 of the structure.
5, The Building Permit plans shall include a utility plan that shows the
equipment layout.
6. The leaves of the,faux tree and the antennas.shall be a color and texture
that blends with the surrounding vegetation. A color sample shall be
provided to the Planning Division for review and approval. The approved
color shall be depicted on the building plans.
7. The antennas no longer in use shall be removed from the site and shall be
shown on the site plan.
H. Upon establishment of the wireless telecommunications facility, pursuant to
CUP 11 -004, 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 atthe 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
Resolution No. P -13 -23
Page 5
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. Faded tree leaves or damaged limbs shall be replaced to ensure the long
term natural appearance of the faux tree to the satisfaction of the Director
of Development Services.
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. To'that end, no facility or combination of
facilities shall produce, at any time, power densities within 500 feetof 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.
7. 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.
Resolution No. P -13 -23
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.
9. 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 11 -004 shall expire on August 20, 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
at a regular meeting this 20th day of August 2013.
o
Don Higginson, Mayor
ATTEST:
Shh n.e g, NXdAA-
SheilwR. Cobian, CIVIC, City Clerk
STATE OF CALIFORNIA )
)SS
COUNTY OF SAN DIEGO )
I, Sheila R. Cobian, City Clerk of the City of Poway, do hereby certify under
penalty of perjury that the foregoing Resolution No. P -13 -23 was duly adopted by the
City Council of a meeting of said City Council held on the 20th day of August 2013, and
that it was so adopted by the following vote:
AYES: CUNNINGHAM, VAUS, GROSCH, MULLIN, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
-&� CA'a Cq), cooc
Sheila R. Cobian, CIVIC, City Clerk
City of Poway