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Covenant Regarding Real Property 2002-0710990RECORDING REQUEST BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY CA 92074 -0789 No Transfer Tax Due IMP DOW 2002- 0710990 004776 AUG 220 2002 8:22 OFFICIAL RECORDS SAN DIEGO COLKH RECOIKR'S OFFICE GREGM J. SNITH, (ONA(TY RECORDER FEES: 30.00 ) III I II III I II II III II IIIIIIII II III 2002 - 0710990 (This space for Recorder's Use) COVENANT REGARDING REAL PROPERTY ftv,, Karen and Edward Draper, PROPERTY OWNERS ( "OWNER" hereinafter) are the owners of real property ( "PROPERTY" hereinafter) which is commonly known as Assessor's Parcel Number 321- 110-24 and more particularly described in Exhibit A. In consideration of the approval of Conditional Use Permit (CUP) 01 -16, a request to allow the installation of a wireless communication facility on PROPERTY, by the City of Poway ( "CITY" hereinafter), OWNER hereby agrees to abide by 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, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties. In the event that CUP 01 -16 expires or is rescinded by City Council at the request of OWNER, CITY shall expunge this Covenant from the record title of PROPERTY. In the event of litigation 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. 8• / %-CLZ Dated: 8 -/.1- o Z Dated: l0 ,002, m:\4)1anning \02report\cup \cup 0116 cov.doc OWNER: z� By: I i/ Karen Draper (Notarize) Edward Draper CITY OF POWAY By: Niall Fritz, Director of Develo&ent Services AM ,?D3011,5a1 ig 09.11> CALIFORNIA ALL - PURSE ACKNbWLEDGMENT • State of CP LA FoCZr4 %f" 004777 County of SAtV On 0, a 0Qa before me, N\jNW/- b- QRUNv7-- , D — Name and Title of Officer (e.g., "Jane Doe, Notary Pubic') personally appeared ❑ personally known to me - OR -�$ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s�i are subscribed to the within instrument and acknowledged to me that44e/ehe(they executed the same in FaieJNerltheir authorized capacity(ies), and that by L@MARK D. BRUNETTE hialheetheir signature(s) on the instrument the person(s), Commhslon 112:4706 or the entity upon behalf of which the person(s) acted, Notary Public _ Co6/aMb executed the instrument. Son DkW county IV WCarrlrrL8PkMFsbZX20MP WITNESS my han and official seal. Signature of No 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: CCNStAP*TT 6A9Zk14 b R4At_QRnPC(27�1 Document Date: � U-S � a 1, ci ©Oct Number of Pages: Signer(s) Other Than Named Above: Capacity(ies)``Claimed by Signer(s) Signer's Name: Y. o-ap N Individual ❑ Corporate Officer Title(s): ❑ Partner—E] Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Signer's Name: VAO.1-:r4 14 Individual ❑ Corporate Officer Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER O 199{ National Notary Association • 8236 Remmel Ave.. P O. Box 7164 • Canoga Perk. CA 91309 -7184 Prod. No 5907 Reorde, '. Call Toll -Free 1- 800-876 -W7 • oo4��s • EXHIBIT "A" ,APN 321 - 110 -24 The Northeast Quarter of the Southeast Quarter; EXCEPTING the South 10 acres thereof, and the Southeast Quarter of the Northeast Quarter of Section 4, Township 14 South, Range 1 [vest. San Bernardino Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof. EXCEPTING that portion lying Northerly of a line described as follows: Commencing at the Southeast corner of Lot 1 of said Section 4; thence South 1 °11'19" East along the Easterly line of said Section 4, a distance of 80.00 feet to the Northeast corner of land described in deed to Lillie W. Byers and Edith W. Bradshaw, recorded June 14, 1954 in Book 5269, Page 170 of Official Records, being the TRUE POINT OF BEGINNING; thence North 88 °23'30" West along the Northerly line of said land. 473.74 feet to the center line of the Poway or Mt. Woodson Road (County Road D- 9 -11), as said road existed and was located on April 10, 1945, being also the Northeast corner of land described in deed to Lillie W. Byers and Edith W. Bradshaw, recorded June 14, 1954 in Book 5269, Page 172 of Official Records; thence continuing North 88 °23'30" West along the Northerly line of said land, 2138.31 feet to the Westerly line of said Southwest Quarter of the Northeast Quarter, distant thereon 40.00 feet Southerly from the Southwest corner of Lot 2 in said Section 4. t ih1 rq�i �' • EXHIBIT B • 004'779 RESOLUTION NO. P -02 -40 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY. CALIFORNIA APPROVING CONDITIONAL USE PERMIT (CUP) 01 -16 TO INSTALL A TELECOMMUNICATIONS FACILITY CONSISTING OF ANTENNAS AND GROUND MOUNTED EQUIPMENT ON PROPERTY LOCATED AT 15101 MINA DE ORO IN THE RURAL RESIDENTIAL A (RR -A) ZONE. ASSESSOR'S PARCEL NUMBER 321 - 110 -24 WHEREAS, Conditional Use Permit 01 -16 was submitted by Nextel Communications, Applicant, to install a telecommunications facility on a developed residential property located at 15101 Mina De Oro in the Rural Residential -A zone. WHEREAS, the telecommunications facility consists of 12 panel antennas, measuring 1 foot wide and 4 feet in length, with 2 sectors of 8 antennas mounted directly to an equipment enclosure; one sector of 4 antennas mounted on four 8- foot -high poles adjacent to an existing water tank; a 230 - square -foot equipment enclosure (proposed to house equipment for the facility); and one base mobile radio (BMR) and 2 global positioning satellite (GPS) antennas (proposed to be installed on the equipment building). WHEREAS, on July 30, 2002, 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, the City Council does hereby resolve as follows: Section 1: The City Council has considered the Environmental Initial Study (EIS), Mitigated Negative Declaration (MND), and associated Mitigation Monitoring Program shown as Exhibit A of this Resolution for Conditional Use Permit 01 -16 and public comments received on the EIS and MND. The subject EIS and MND documentation are fully incorporated herein by this reference. The City Council finds, on the basis of the whole record before it, that there is no substantial evidence the project will have a significant impact on the environment, that the mitigation measures contained in the EIS and Exhibit A hereof will mitigate potentially significant impacts to a less than significant level, and that the MND reflects the independent judgment and analysis of the City. The City Council hereby approves the MND, and the associated Mitigation Monitoring Program (which is attached to this Resolution as Exhibit A). Section 2: In accordance with the Poway Habitat Conservation Plan (HCP), the required findings for approval of CUP 01 -16, based on reliance on the Mitigated Negative Declaration, are as follows: A. The proposed project site is inside the Mitigation Area, the Rattlesnake Canyon Biological Core and Linkages Area (BCLA), and the Planned Resource Preservation Area (PRPA) No. 13b of the Poway HCP. The mitigation is consistent with and furthers the implementing objectives of the Poway HCP in that the applicant will 0 004780 0 Resolution No. P -02-40 Page 2 mitigate impacts to 5,263 square feet of Coastal Sage Scrub habitat at a 2:1 ratio (10,526- square -foot mitigation) on -site, through dedication of similar quality, like habitat within the identified Mitigation Area of the Poway HCP. The City shall, after the acceptance of the easement, process a General Plan Amendment and Zone Change to change the land use and zoning designation of the area of the easement to Open Space- Resource Management (OS -RM). B. The preservation of habitat within the Mitigation Area, the Rattlesnake Canyon BCLA, and PRPA 13b will contribute toward the building of the ultimate total Mitigation Area preserve system of the Poway HCP since the dedication will be either sited to be contiguous to an existing on -site conservation easement area 2.88 acres in size and will contain high quality habitat, or will be located somewhere else in the Mitigation Area and within the Rattlesnake BCLA and PRPA 13b. Therefore, such habitat preservation will serve to enhance the long -term viability and function of the preserve system in that it will permanently preserve 10,526 square feet of habitat. C. The mitigation will be to the long -term benefit of the covered species and their habitats in that the recordation of a conservation easement deed over an area of undisturbed and unencumbered habitat, will promote a meaningful addition to the assembly of a viable regional system of interconnected natural habitat resources, habitat linkages, buffers and wildlife corridors since it will permanently preserve 10,526 square feet of habitat either contiguous to an existing conservation easement area onsite, or somewhere else in the Mitigation Area and within the Rattlesnake Canyon BCLA and PRPA 13b. D. The mitigation will foster the incremental implementation of the Poway HCP in an effective and efficient manner in that the preservation will be either on -site conservation and contiguous to an existing conservation easement area, or somewhere else within the Mitigation Area within the Rattlesnake Canyon BCLA and PRPA. E. The mitigation will not result in a negative fiscal impact with regard to the successful implementation of the Poway HCP because no City funding will be required to preserve the habitat. Section 3: The findings, in accordance with Section 17.48.070 of the Poway Municipal Code for CUP 01 -16 to install a telecommunications facility on property located at 15101 Mina De Oro in the RR -A zone, are made as follows: A. The proposed location, size, design, and operating characteristics of the proposed telecommunications facility is in accord with the title and purpose of Chapter 17.48 of the Poway Municipal Code (Conditional Use Permit Regulations), the purpose of the RR -A zone, the City 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. 0 004781 0 Resolution No. P -02-40 Page 3 B. The location, size, design, and operation characteristics of the proposed telecommunications facility will be compatible with and will not adversely affect or be materially detrimental to adjacent uses, residents, buildings, structure, or natural resources in that the facility has been designed, sited and screened such that it will not result in visual impacts to the surrounding community, mitigation for habitat removal will be implemented pursuant to the requirements of the Poway HCP, and it will comply with Federal Communication Commission (FCC) design and operational standards. C. The proposed telecommunications facility is in harmony with the in scale, bulk, coverage, and density of, and is consistent with, adjacent uses in that the proposed facility will be screened from public view. 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 visual impacts 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 which is proposed in that the proposed telecommunications facility will enhance telecommunications coverage in the easterly portion of the City. H. There will not be significant harmful effects upon environmental quality and natural resources in that the proposed telecommunication facility is required to mitigate impacts to habitat resources pursuant to the Poway HCP. 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 proposed 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, sited, and screened such that it will not result in visual impacts and will comply with FCC design and operational standards. 004782 Resolution No. P -02-40 Page 4 K. The proposed telecommunications facility will comply with all the applicable provisions of Chapter 17.48 of the Poway Municipal Code in that the facility has been designed, sited, and screened such that it will not result in visual impacts and will comply with FCC design and operational standards. Section 4: The City Council hereby approves CUP 01 -16 to install a telecommunications facility at 15101 Mina De Oro in the RR -A zone consisting of 12 panel antennas, measuring 1 foot wide and 4 feet in length, with 2 sectors of 8 antennas mounted directly to an equipment enclosure; one sector of 4 antennas mounted on 4, 8 -foot high poles adjacent to an existing water tank; a 230 - square -foot equipment enclosure (proposed to house equipment for the facility); and one base mobile radio (BMR) and 2 global positioning satellite (GPS) antennas (proposed to be installed on the equipment building) as shown on the plans dated May 1, 2002, subject to the following conditions: A. 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. B. 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 on Real Property C. 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. D. The conditions of CUP 01 -16 shall remain in effect for the life of the subjectwireless telecommunications facility and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner. E. CUP 01 -16 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. F. The applicant shall obtain a Building Permit and a Grading Permit priorto installation of the facility. Prior to issuance of any permit, the applicant shall comply with the following: Habitat impact mitigation requirements pursuant to the Poway HCP and as indicated in the Mitigation Monitoring Program included as Exhibit A of this resolution shall be completed to the satisfaction of the Director of Development Services. 2. 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 electrical /building permit issuance. • 004783 • Resolution No. P -02-40 Page 5 3. The specific materials used to create the paint and texture of the antennas shall be depicted on the building plans. The selected materials shall match, as closely as possible, the ground mounted equipment enclosure walls, to the satisfaction of the Director of Development Services. 4. The operator shall submit calculations specifying the FCC's Maximum Possible Exposure (MPE) levels in inhabited areas within 500 feet of the facility in the areas that the levels produced are projected to be highest. The information shall also consider the cumulative effects of the existing telecommunication facility on -site. Upon issuance of the building permit and installation of the facility, the applicant shall hire a qualified electrical engineer licensed by the State of California to measure exposure levels at the location after the facility is in operation also to consider the cumulative effects of the existing telecommunication facility on -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. The facility shall not commence normal operations until it complies with or has been modified to comply with this standard. Proof of compliance shall be a certification provided by the engineer who prepared the original report. In order to assure the objectivity of the analysis, the City may require, at the applicant's expense, independent verification of the results of the analysis. 5. The antennas shall not be activated for use until a final inspection is conducted by the City. A portable generator shall not be allowed unless written approval is obtained by the Director of Development Services. 6. A right -of -way permit shall be obtained from the Engineering Division of the City's Development Services Department prior to performing any work within public street right -of -way or any City held easement. 7. For access to and from the project site, if other than through public streets or roads, the applicant is solely responsible for acquisition of access /road easements or agreements. G. Prior to obtaining a final inspection on the building permits, the applicant shall comply with the following: 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. H. Upon establishment of the wireless telecommunications facility, pursuant to CUP 01- 16, the following shall apply: • 004784 • Resolution No. P -02-40 Page 6 1. 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. 2. The facility shall be operated in such a manner as to minimize any possible disruption caused by noise. Backup generators shall only be operated during periods of power outages and shall not be tested on weekends or holidays, or between the hours of 10:00 p.m. and 7:00 a.m. on weekday nights. At no time shall equipment noise from any source exceed the noise standards contained in the Poway Municipal Code. 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 their facilities with City telecommunications systems or other public agency emergency communication systems. 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 analyses), and all costs arising from third party claims against the City attributable to the interference. 5. The wireless 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 in any inhabited area that exceeds the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive standard subsequently adopted or promulgated by the City, County, State of California, or the Federal government. If there is any change in the manner in which the facility is operated or change in the MPE, a report pursuant to Condition F.4 of this Resolution shall be submitted to the Director of Development Services for review and approval. The Director may also require an updated report as part of any review of this Conditional Use Permit. Section 5: The owner of the wireless 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 6: The approval of CUP 01 -16 shall expire on July 30, 2004 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. 0 004'785 Resolution No. P -02 -40 Page 7 PASSED, ADOPTED and APPROVED by the City Council of the City of Poway, State of California, this 30th day of July 2002. ATTEST: A. on Anne Peoples, City Cle k STATE OF CALIFORNIA ) )SS COUNTY OF SAN DIEGO ) I, Lori Anne Peoples, City Clerk of the City of Poway, do hereby certify, under the penalty of perjury, that the foregoing Resolution No. P- 02 -40 , was duly adopted by the City Council at a meeting of said City Council held on the 30th day of July 2002, and that it was so adopted by the following vote: AYES: EMERY, GOLDBY, HIGGINSON, REXFORD, CAFAGNA NOES: NONE ABSTAIN: NONE ABSENT: NONE Lori �nne Peoples, City Cler City of Poway • 004786 ! Resolution No. P -02-40 Page 8 EXHIBIT A MITIGATION MONITORING PROGRAM FOR CUP 01 -16 reporting or monitoring program Tor the cnangeS wnign it has adopted or made a condition of project approval in order to mitigate or avoid significant effects on the been prepared in accordance with Section 21081.6 of the Public Resources Code. Non - compliance with any of these conditions, as identified by City staff or a designated monitor, shall result in issuance of a cease and desist order for all construction activities. The order shall remain in effect until compliance is assured. Non - compliance situations, which may occur subsequent to project construction, will be addressed on a case -by -case basis and may be subject to penalties according to the City of Poway Municipal Code. When phasing of development has been established, it may be necessary for this Monitoring Program to be amended, with City approval. Topic Mitigation Measure Timing Responsibility Biology . Prior to the issuance of a grading permit or a building Prior to issuance Planning permit whichever comes first, mitigation for habitat of grading permit Division impacts shall be completed at a 2:1 replacement ratio, or building permit, which is 10,526 square feet or .24 acres (based on whichever comes estimated project impacts). Habitat mitigation can be first. accomplished in the form of dedication of similar quality, like habitat within the identified Mitigation Area of the Poway Habitat Plan. The City shall, after the acceptance of the easement, process a General Plan Amendment and Zone Change to change the land use and zoning designation of the area of the easement to Open Space- Resource Management (OS -RM).