HomeMy WebLinkAboutCUP 01-04; Church of Jesus Christ of Latter-Day Saints; 2003-0362098; Petition & WaiverDOC # 2003-0362098
OFFICIAL REm SAN DIEGO COUKfY REG0RDEX"S OFFICE GREGORY J. SHIM, COW RECORDER FEES: 47.00 RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Space Above This Line for Recorder's Us
Assessor Parcel No. 223-060-50
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF CONDITIONAL USE PERMIT (CUP 01 -04) ("AGREEMENT")
WHEREAS, the undersigned Property Owner at this time is processing for
development with the City of Carlsbad (hereinafter referred to as "City") a development
project known and identified as Conditional Use Permit (CUP 01-04) (hereinafter referred
to as the "Project"); and,
WHEREAS, the legal description for the Project is shown on Exhibit "B" attached
hereto; and,
WHEREAS, City has determined this Project is located within the boundaries of a
proposed Community Facilities District known as Community Facilities District No. 2 -
Rancho Santa Fe and Olivenhain Road (hereinafter referred to as "District"); and,
WHEREAS, the District is intended to be formed to finance those improvements
generally described in Section 1 herein; and,
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WHEREAS, Property Owner desires to proceed with processing prior to the
formation of District; and,
WHEREAS, Conditional Use Permit (CUP 01-04) requires that the Property Owner
contribute its fair share of the costs of the District improvements; and,
WHEREAS, the City and Property Owner desire to agree to an alternative method
of financing the improvements described in Section 1 herein that will allow Property Owner
to discharge its fair share and obligation for said improvements in lieu of, or in anticipation
of, participation in District; and,
WHEREAS, the City Council agrees that Property Owner, upon entering into this
Agreement and upon payment of the fair share described herein, has met the requirement
set forth in Conditional Use Permit (CUP 01-04) for its fair share contribution; and,
WHEREAS, Property Owner voluntarily enters into this Agreement with respect to
the Project; and,
WHEREAS, the City Council has determined that due to the size of the proposed
development, there will be no major impact on the circulation system at the present time if
development of the Project is allowed to proceed with sufficient financial guarantees for
future construction of Property Owner’s fair share of the circulation improvements.
NOW, THEREFORE, in consideration of proceeding with the processing of the
Project, the undersigned Property Owner and City hereby agree and certify to the
following:
1. Property Owner hereby petitions the City for the initiation of the proceedings
for the formation of District which will cause the construction and installation and/or
financing of the following improvements (hereinafter “Improvements” which are generally
described as follows:
a) Rancho Santa Fe Road North Phase 1 (RSF No.1) La Costa Avenue
to east of Mahr Reservoir
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b) Olivenhain Road Widening, and intersection improvements at
Olivenhain and El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondary
Arterial Standard - Encinitas Citv Boundary to Olivenhain Road Full Improvements
2. The cost of construction, engineering, environmental mitigations, legal, and
other incidental expenses as set forth in the Improvements Budget will be funded by the
District.
3. Property Owner acknowledges its right to notice of and participation in all
phases of formation under the "Mello-Roos Community Facilities Act of 1982," expressly
waives the proceedings required and all limitations contained in Title 5, Division 2,
Chapter 2.5 of the California Government Code and nonetheless with full knowledge of
such rights, completely and forever waives such rights. Specifically, Property Owner
hereby consents to the proceedings and waives any right to protest the formation of the
District and the ordering of the improvements under applicable California statutes and
consents to and supports formation of said District with respect to the Project. The City
shall exclude the Project from the District boundary map if, prior to the adoption of a
Resolution of Intention by the City Council to form said District, Property Owner has
entered into this agreement and has paid to the City all amounts due as described herein.
4. a) Property Owner agrees to pay to City, or provide, its fair share for the
improvements described in Section 1.
b) Said payment, or provision, shall be made in the manner described in
Exhibit "A," Rate and Method for Determining Fair Share Obligation Rancho Santa Fe and
Olivenhain Road, which is incorporated herein by reference.
c) The amount of Property Owner's fair share will be conclusively
determined by the City Council in the manner described in Exhibit "A" attached
hereto.
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d) Payment by Property Owner of its fair share of improvement costs as
determined by City Council and set forth herein will satisfy its obligations for Condition
No. 20 of Conditional Use Permit (CUP 01-04).
e) Alternatively, if the District is formed and Project is included within it,
Property Owner's obligations to pay its fair share pursuant to the agreement shall be
satisfied upon payment of all taxes imposed, established, and payable to said District.
5. Property Owner acknowledges that this agreement to pay its fair share and
participate in the financing of improvements is voluntary and that without this agreement
Property Owner would be precluded from obtaining final map approvals or building and
other development permits under the provisions of the General Plan, Chapter 21.90 of the
Carlsbad Municipal Code, applicable zone plan, financing plans, and related documents
until a satisfactory financing program has been developed to fund the construction of the
improvement described in Section 1.
6. Property Owner hereby waives his right to challenge the amount,
establishment, or imposition of said fair share and further waives any rights to pay said fair
share under protest.
7. This Agreement does not affect, in any way whatsoever, the obligation of
Property Owner to pay any other fees or assessments associated with Property Owner's
development and/or to post improvement bonds as required by the City Engineer. Nor
does this Agreement relieve Property Owner from providing other public facilities required
under conditions placed upon the property by Conditional Use Permit (CUP 01-04) or
other development approvals.
8. Property Owner agrees that payment of its fair share is not a fee and waives
any and all rights to notice of or challenges to the establishment or imposition of said fair
share as a fee under provisions of Government Code section 66000 et seq., or any
successor or related statutes.
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9. a) If the District is formed subsequent to the payment by Property Owner
of the fair share pursuant to this Agreement, Property Owner's financial obligation shall be
recalculated using the taxing formula established for the District for the Improvements
described in Paragraph 1. If that obligation is lower than the amount previously paid or
provided by Property Owner to City, City shall refund any excess, in the manner described
below.
b) Any refund shall be made from funds available within District upon
District formation and shall not be an obligation of City's General fund or other revenue
sources.
c) In the event that sufficient funds are not available from District's
resources, Property Owner shall be reimbursed, as determined by the City Council,
through the payment of one-time taxes or annual undeveloped land taxes to the District.
The City is not required to establish an undeveloped land tax within the District to provide
such refund.
d) No reimbursement is required until the City Council determines that
sufficient funds are available. Any refund to Property Owner shall not include interest.
e) Any payment received by the City under this Agreement shall be
deposited in a special interest-bearing fund and may only be used to fund the construction
of the facilities described herein. Upon the formation of a CFD to fund these same
Improvements, any amount remaining in the special fund may be transferred to the CFD
fund, at the discretion of the Finance Director.
IO. Upon completion of the Improvements, and recording of the Notice of
Completion for the final phase of the Improvements, the City Engineer shall determine the
total cost of all phases of the Improvements and all related work (Costs), and the Finance
Director shall determine the total amount of revenue including fees, taxes, interest earned
on funds restricted to use only on the Improvements, and other sources of funds received
by the City dedicated to paying for the construction of the Improvements (Revenues). The
Finance Director shall then compare the amount of Costs and Revenues to determine if
there are any excess Revenues as described below. If excess Revenues of more than
$100,000 exist, the Finance Director shall provide refunds to all eligible parties of all
excess Revenues in an amount and in the manner described below. If excess Revenues
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are equal to or less than $100,000, the City shall retain these funds in a special fund to be
used to finance street repair, maintenance, and landscaping within the Improvements.
a) The total amount of excess Revenues shall be determined by deducting
the amount of the project Costs from the available Revenues. Total project Costs shall
include all costs to plan, design, construct, mitigate environmental impacts, inspect, and
otherwise complete the project to the satisfaction of the City Engineer, including applicable
charges for City staff services. Total Revenues shall include all monies held by the City
dedicated exclusively to the construction of the Improvements including any fee revenues
earmarked for the Project, CFD No. 2 taxes, applicable CFD No. 1 taxes, grants, and
interest earned on restricted funds as determined by the Finance Director.
b) The amount of the refund due to any party shall be based on the
proportion of that party’s payments under this Agreement based on its proportional share
of Equivalent Dwelling Units constructed or to be constructed by that party, weighted as
described in Exhibit A, divided by the total number of EDUs constructed or to be
constructed within, and participating in, CFD No. 2 and/or CFD No. 2 agreements to
prepay taxes. The amount of the refund shall be determined by multiplying the
proportional share computed above by the total amount of excess revenues.
c) In order to share in the refund of any portion of the excess Revenues, the
eligible party must request to be included in the distribution of funds. Such request must
be made within 90 days after the City Council’s acceptance of the Notice of Completion
for the final phase of the Improvements. Each request must be accompanied by
documents indicating clear title to the refund unless the request is being made by the
party who originally paid the taxes to the City under a prepayment Agreement or to
CFD No. 2.
d) The Finance Director shall compute the amount of the refund due each
party as described above. Funds may be disbursed to the eligible parties following
Council approval of such refunds.
e) If the City does not receive requests for refund from all eligible parties
within the specified period, and all funds cannot be disbursed as provided by this section,
any remaining funds shall be held in a special fund to be used to support road and
roadway maintenance in and around the Improvements area, as determined to be
necessary by the City Engineer, and approved by the City Council.
f) As a courtesy to all interested parties, the City will maintain a file of those
individuals or companies entitled to a refund, and will mail notices of refund availability to
the names and addresses in this file following the City Council’s acceptance of the final
Notice of Completion. It is the eligible party’s responsibility to notify the City if the right to
any refunds under this section is assigned to another party, or if there is a change in name
or address for the eligible party. The City takes no responsibility for the accuracy of the
information included in this file, and is under no obligation to locate persons or entities that
are entitled to refunds. Failure to notify any party of the availability of excess Revenues
shall not obligate the City in any way to extend or modify the above refund procedures.
11. Compliance with this Agreement will be accepted by City as an alternate to the
method described in the current Local Facilities Management Plan for local facilities
Management Zone I1 for financing the Improvements described in Paragraph I. This
Agreement does not require City to issue building permits or other development permits or
grant approvals or relieve Property Owner of the obligation to comply with all applicable
provisions of law, including but not limited to Carlsbad Municipal Code Titles 18, 19, 20,
and 21.
12. Compliance with the provisions of this Agreement is a condition of all future
discretionary approval for the Improvements. If Property Owner does not comply with the
provisions of this Agreement, approval of the Project will not be consistent with the
General Plan, the Growth Management Program, and the Local Facilities Management
Plan, and all subsequent discretionary approvals and permits for the Project may be
withheld by City.
13. In addition, the City will not approve any pending final maps, issue grading,
building, or other development permits or take any discretionary action until the Property
Owner has complied with the terms of this Agreement due to be satisfied at the time such
approval is required.
14. The City may, at its discretion, elect to pursue any remedy, legal or
equitable, against Property Owner and Property Owner’s successors, heirs, assigns, and
transferees of the Project to secure compliance with this Agreement.
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15. City shall not, nor shall any officer or employee of City, be liable or
responsible for any loss or damage incurred by Property Owner or any successor or
assign of Property Owner, or by any occupant in Property Owner's buildings, as a result of
the exercise of any remedies provided to City in this Agreement. Property Owner agrees
to indemnify City for any liabilities incurred by City as a result of City's exercise of these
remedies.
16. This Agreement and the covenants contained herein shall be binding upon
and inure to the benefit of the successors, heirs, assigns, and transferees of Property
Owner with respect to the Project only and City, and shall run with the Project and create
an equitable servitude upon the Project.
17. All notices provided for under this Agreement shall be in writing and shall be
delivered in person or served by certified mail, postage prepaid. Delivery of notice to
Property Owner shall be presumed to have been made on the date of mailing regardless
of receipt by Property Owner. Notices required to be given to Property Owner shall be
addressed as follows:
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Each party shall notify the other immediately of any change that would require any
notice delivered hereunder to be directed to another party.
18. This Agreement shall be recorded but shall not create a lien or security
interest in the property.
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19. The undersigned Property Owner further states, under penalty of perjury,
that he is owner of the property as described herein on Exhibit "B," or an authorized agent
of the owner, and has the authority to execute this document, including the binding
authorizations herein.
th
Executed this 20 day of Febrlh~~y 2003.
Laury I. L\1 Kst;Mq ATTEST, - (print name)
ba+hor*bzecl AqcnJc
(title and organization of signatory)
(sign here) Y
]<a + h\een Pe rf3 Approved as to form:
(print name here)
(title and organizdon of signatory) yP./zL. Secre+auy
Ronald mall
City Attorney
1/,3p '
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STATE OF UTAH )
COUNTY OF SALT LAKE )
) ss.
Op ,this m3ay of f?h"uavr~ , p-3personally appeared before me, Lam L. h! hm M , personally hod to be the Authorized Agent of CORPbRATION O$ THE PRESIDING BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, who acknowledged
before me that he signed the foregoing instrument as Authorized Agent for the
Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day
Saints, a Utah corporation sole, and that the seal impressed on the within instrument is
the seal of said Corporation; and that said instrument is the free and voluntary act of
said Corporation, for the uses and purposes therein mentioned, and on oath stated that
he was authorized to execute said instrument on behalf of said Corporation and that
said Corporation executed the same.
WITNESS my hand and official seal.
EXHIBIT A
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO SANTA FE AND OLIVENHAIN ROADS
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Rancho Santa Fe and Olivenhain Roads due
from property conditioned to participate in the financing of these facilities. This calculation
is done as part of an Agreement titled PETITION, WAIVER AND CONSENT TO
CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY
FAIR SHARE (Agreement) which has been voluntarily entered into by the City of Carlsbad
and certain property owners wishing to proceed with development of their property in
advance of the creation of Community Facilities District No. 2 (CFD No. 2). It is the City
and property owner’s intent to form CFD No. 2 to provide funding for those improvements
described within the Agreement.
The following rate and method shall be used to determine the fair share and amount due
from any property owners wishing to take advantage of this alternate funding mechanism.
Basis for Cost Allocation
The basis for allocation of costs to property conditioned with the financing of the
improvements described in the Agreement shall be the Equivalent Dwelling Unit (EDU)
which is defined per product classification as follows:
Product Classification Equivalent Dwelling Units
Single Family - Detached Units 1.0 EDU
Single Family - Attached Units 0.8 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/lndustrial and other 10.0 EDU per Acre
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The number of each type of unit included in a development shall be determined by the
City Engineer based on the most recent final map submitted to the City for approval.
The EDU determination for non-residential development shall be made by the City
Engineer when such a determination is requested by the property owner. The City
Engineer may request additional information from any property owner as may be
necessary to make his determination. The City Engineer is not required to make a
determination on the number of EDUs for any project until adequate information is
available.
The City Engineer's determination shall be submitted to the City Council in the table
below. The City Council shall make the final determination of the number of EDUs to be
used in computing the fair share obligation for any project.
Fair Share Amount and Method of Payment
The City shall collect $10,250 for each EDU as determined by the City Council. This
amount shall be collected in one payment of $10,250 per EDU to be paid prior to Council
consideration of final map approval as described below.
1 ) Prior to the approval of a final map by the City Council, the property owners shall pay
to the City an amount equal to the number of EDUs included in said final map, as
determined by the City Engineer, times $10,250. If the City Council determined that
the City Engineer's calculation of the number of EDUs included on the final map is in
error, the Council shall direct the City Engineer to amend his calculations and direct
staff to bring the final map back for approval when such correction has taken place.
Funds must be paid to the City before the final map will be scheduled for Council
consideration.
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Computation of Fair Share Obligation
The Church of Latter Day Saints
(CUP 01 -04)
Type of Unit Acres Covered Cost per EDU per acre by EDU Agreement Amount Due
Church $236,980 5.78 $10,250 4.0
2) If the property owner has already obtained a final map for property conditioned with
the financing of Rancho Santa Fe and Olivenhain Road, the property owner shall
pay to the City the net amount due shown above prior to entering into this
agreement.
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EXHIBIT B
PROPERTY DESCRIPTION
THAT PORTION OF PARCEL 4 OF PARCEL MAP 13524,'IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28,1984 AS FILE NO.
84-403293 OF OFFICIAL RECORDS INCLUDING A PORTION OF MISSION ESTANCIA
DEDICATED ON SAID PARCEL MAP, DESCRtBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID PARCEL 4; THENCE ALONG
THE SOUTHWESTERLY BOUNDARY THEREOF SOUTH 42O 29' 57" EAST 76.71 FEET TO
THE MOST WESTERLY CORNER OF THE LAND DESCRIBED IN DEED TO THE CITY OF
OFFICIAL RECORDS; THENCE ALONG THE NORTHEASTERLY LINE OF SAID LAND SOUTH
64' 37' 04" EAST 464.92 FEET TO A POINT IN THE ARC OF A 958 FOOT RADIUS
CURVE CONCAVE WESTERLY IN THE WESTERLY LINE OF SAID MISSION ESTANCIA;
THENCE ALONG A RADIAL LINE OF SAID CURVE SOUTV 71 O 41' 37" EAST 42.00 FEET
TO A PORTION IN THE ARC OF A 1000.00FOOT RADIUS CURVE IN THE CENTERLINE OF
SAID MISSION ESTANCIA; THENCE ALONG SAID CENTERLINE NORTHERLY ALONG SAID CURVE THROUGH AN ANGLE OF 3O 18' 23" A DISTANCE OF 57.71 FEET; THENCE TANGENT TO SAID CURVE NORTH 15 O 00' EAST 400.00 FEET TO A TANGENT 900
FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG SAID CURVE
THROUGH AN ANGLE OF 32O 18' 00" A DISTANCE OF 507.37 FEET TO THE MOST
NORTHERLY CORNER OF SAID PARCEL 4; THENCE ALONG THE NORTHERLY AND
NORTHWESTERLY BOUNDARY OF SAID PARCEL 4 AS FOLLOWS: SOUTH 72O 42' 00" WEST 77.00 FEET; SOUTH 40° 33' 22" WEST 166.07 FEET; SOUTH 61 O 58' 30" WEST 99.97 FEET; SOUTH 34O 56' 26" WEST 440.09 FEET; SOUTH 42O 58' 12" WEST 135.95 FEET; AND SOUTH 23O 21 ' 26" WEST 18.41 FEET TO THE POINT OF
BEGINNING.
EXCEPTING THEREFROM ALL WATER, WATER RIGHTS, OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND DESCRIBED ON THIS EXHIBIT, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND .OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AAND MINEFROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, WATER, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH, OR ACROSS THE SUBSURFACE OF THE LAND
HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS, AND SHAFTS UNDER AND BENEATH OR BEYOND THE
EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN REPAIR,
DEEPEN, AND. OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE
RIGHT TO ENTER UPON, DRILL, MINE, STORE, EXPLORE, AND OPERATE ON OR
THROUGH THE SURFACE ORTHE OR THE FIVE HUNDRED (500) FEET OF THE
SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED.
CARLSBAD RECORDED NOVEMBER 1, 1985 AS DOCUMENT NO, 85-41 141 7 OF
Assessor's Parcel No: 223-060-50