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02-1015_PUEBLO SERRA LLC_Declaration of Covenants and Implementation Agr Recording Requested by And When Recorded Return to: Recorded in Official Records, County of Orange City of San Juan Capistrano Tom Daly, clerk-Recorder. 32400 Paseo Adelanto IIIIIiillllllllililllllll!iiilllllllilinllilll1111111111!IIIillNO FEE San Juan Capistrano, CA 92675M Attn: City Clerk n so Do 20030002542IM:45pm 03/07/03 13 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 [Exempt From Recording Fee Per Gov. Code §6103] DECLARATION OF COVENANTS AND IMPLEMENTATION AGREEMENT BY AND BETWEEN CITY OF SAN JUAN CAPISTRANO AND PUEBLO SERRA,LLC REGARDING THE JSERRA EDUCATION INITIATIVE (JSerra High School) This Declaration of Covenants and hnplementation Agreement (hereinafter "Agreement") is entered into effective as of October 15, 2002, (hereinafter the "Effective Date") by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter"City"), and Pueblo Serra LLC, a California Limited Liability Company (hereinafter "Declarant' or "Pueblo Sena") to implement the"JSerra Education Initiative." Declarant hereby covenants for its heirs and successors: RECITALS A. On or about July 25, citizens of San Juan Capistrano commenced circulation of the "JSerra Education Initiative" ("Initiative"). On or about September 11, 2002, the Orange County Registrar of Voters certified that the Initiative contained valid signatures of City residents constituting more than 15% of the voters of the City according to the last report of City registration. Therefore, pursuant to the Elections Code, the Initiative was required to either be promptly adopted by the City, or placed before the voters at an advanced special election. B. Pueblo Sena owns in fee simple title that approximately 9 acres of real property and improvements adjacent to, and cast of, Camino Capistrano and Junipero Sena Road that is 1032/0218]]-0001 32508Z01C.10/08/02 subject to the Initiative, generally described as APN 649-361-03, and also currently has a vested leasehold interest in that approximately 29 acres generally described as APNs 649-011-25, and 649-011-30, which are also subject to the Initiative. Pueblo Serra therefore has a property interest in all of the property subject to the Initiative (collectively, "Property"). The Property is further described as set forth in the legal description attached hereto as Exhibit "A." C. On September 17, 2002, in accordance with the Elections Code, the City Council requested that a report be prepared (the "report") to ascertain the effects of the Initiative on the City's General Plan and Zoning Code, and on other matters. D. On October 15, 2002, the City Council received the report to determine whether, in accordance with the Elections Code, to either adopt the Initiative, or to place it before City voters at a special election. Thereafter, the City Council voted to adopt the Initiative. Also on this date, City and Pueblo Serra executed this Agreement. E. The City and Pueblo Serra hereby express their mutual understanding and intention that this Agreement will serve the public interest and general welfare of the City. By adopting the Initiative, the City recognizes that Pueblo Serra may use as a principal permitted use (i.e., as a matter of right) the structures located, or to be located, on APN 649-361-03 for private school uses ("North Campus Facilities"). At the same time, Pueblo Serra recognizes the importance of ensuring, through the execution of this Agreement, that it provide various public benefits to the City to offset the demand on public services it will generate as a City property owner. Executing this Agreement concurrently with the adoption of the Initiative thereby ensures that the expectations of the parties with respect to the future development of Property are memorialized and also strengthens the planning process. F. By this Agreement, City and Pueblo Serra intend that the Property be developed as a private, Catholic high school ("School"), grades 9 through 12, with enrollment of up to 2,000 students. Pursuant to the legal effect of the Initiative, the property north of Junipero Serra, APN 649-361-03 (defined above and hereafter as "North Campus Facilities"), will utilize the existing two structures, and a third structure that has already been approved and permitted by the City for classroom, support, and administrative facilities, as provided in the Initiative and this Agreement and as intended by Pueblo Serra. Subject to further environmental review, the property south of Junipero Serra, APN 649-011-25 and 649-011-30 ("South Campus Facilities"), may be developed with sport, aquatic, recreational facilities, maintenance buildings, classrooms a performing arts center, and a chapel. The statements of legislative intent, and the legislative findings and purpose as contained in the Initiative, are hereby incorporated into this Agreement by reference. G. Article II, section 11 of the California Constitution reserves unto the people the power of Initiative. In furtherance of this power, the people of the City of San Juan Capistrano have stated their intent that this Project be approved, developed, and operational in an expeditious manner, and that the City fully cooperate with the Project applicant to ensure that the Project is fully developed and operational in an expeditious manner. Therefore, in accordance with Article II, section i l of the California Constitution and the people's constitutionally- reserved power of initiative, it is the intent of the City and Pueblo Serra :o enter into this Agreement. 1032/021677-0001 325087.01C a10/08/02 -2- H. The City Council of the City of San Juan (hereinafter "City Council") has found that this Agreement is in the best public interest of the City and its residents. The Agreement provides a mechanism by which the City can obtain valuable public revenues to offset costs for City services such as police, fire, and recreational services, while at the same time ensures the prompt processing of applications for the development and operation of a Catholic high school, whose mission furthers the historical traditions of the City. The City and Pueblo Serra understand and agree that further City actions undertaken to approve aspects of the School not covered by this Agreement will require further City actions, as well as compliance with other applicable regional, state, and federal laws. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. IMPLEMENTATION GUIDELINES FOR THE PROPERTY. 1.1 Development and Use of the North and South Campus Facilities. The development expectations and use of the North and South Campus Facilities shall be governed by the provisions below: 1.2 Sequence of Entitlements and Entitlement Applications. (A) The North Campus Facilities: Consistent with the legal effect and intent of the Initiative, once the Initiative becomes effective, the North Campus Facilities may be immediately used as a private Catholic high school as a principal permitted use (i.e., as a matter of right) with no further zoning, design review, or development review approvals required by the City with the expectation that the School will be opened and operational on or before September 1, 2003. Enrollment for the School shall not exceed 2,000 students per year, inclusive of all class levels. (B) The South Campus Facilities: Development of the South Campus Facilities to support the School (e.g. athletic fields, gymnasium, performing arts center with loft, aquatic center, tennis/basketball courts, parking lots, lighting, etc.), will be subject to the Initiative and the City's Development review process and will be reviewed and approved pursuant to the City's Development review process. It is understood and anticipated that the South Campus facilities may include not more than 150,000 square feet of new buildings, including a gymnasium, a performing arts center, a chapel, a competition swimming/diving center, classrooms, and support/maintenance/energy facilities. A permanent football stadium is not part of the plan. Baseball, softball, football, soccer, track, and tennis and basketball courts are also anticipated. It is also anticipated that a pedestrian bridge may be built across Junipero Serra linking the North and South Campus facilities. Further environmental review of the South Campus Facilities will be required. 1.3 Time of the Essence. The parties expressly acknowledge that time is of the essence of this Agreement. The City shall use its best efforts to expedite the planning and 1032/021877-0001 325087.01C a10/08/02 -3- permitting process to facilitate the installation of the gymnasium and field sport facilities on the South Campus as soon as possible. 2. PUBLIC BENEFITS. The parties acknowledge and agree that development of the School will result in demands on public services and further acknowledge and agree that this Agreement confers unique benefits to Pueblo Serra which can be balanced by the provision of public benefits to the City. Accordingly, the parties intend by this Agreement to provide additional consideration to the public. 2.1 Per Student Mitigation Fee. In accordance with the above recitals, Pueblo Sena shall make the following payments to the City: (A) For the school year commencing September 1, 2003 through August 31, 2004, Pueblo Sena shall pay the City a single fee of$172,000. (B) For the school years commencing September 1, 2004 through August 31, 2005 and each school year thereafter, Pueblo Sena shall pay the City an annual fee equal to $200 per student enrolled in the regular full time curriculum at JSena as of October 1, but in any event not less than $200,000 per school year. As an example, if during the September 1, 2004 through September 1, 2005 school year, Pueblo Sena has a student enrollment of 500 students, Pueblo Sena shall pay the City $200,000 to cover the annual payment for that school year ($200 x 500 = $100,000 < $200,000). If, however, during this same school year, Pueblo Sena has a student enrollment of 2,000 students, Pueblo Sena shall pay the City $400,000 for that school year ($200 x 2,000 = $400,000>$200,000). (C) In addition to the above provisions, commencing the third school year the Per Student Mitigation Fee (initially at $200 per student) to be paid by Pueblo Sena shall be increased two percent (2%) per year(on original base amount). (D) The parties expressly acknowledge that, at this point in time, it is unclear whether the Property will be deemed by the applicable authority to be exempt from the payment of real property taxes. To this end, notwithstanding any of the provisions in Sections 2.1(A), (B), and (C) above, if the Property is not deemed to be tax exempt in its entirety, Pueblo Sena shall continue to be obligated to pay the annual Per Student Mitigation Fee set forth above, but the amount due shall be reduced by an amount equal to the sum of(1) the gross real property taxes and assessments attributable to the Property that is allocated to (a) the City, (b) City- controlled special districts, and (c) other City-controlled taxing entities, and (2) the gross property tax increment attributable to the Property allocated to the Community Redevelopment Agency of the City of San Juan Capistrano pursuant to Health and Safety Code Section 33670(b) or successor statute. (collectively, the "City/Agency Property Tax Allocation"). The City/Agency Property Tax Allocation shall not include the diversion of all or a portion of City or Agency property tax receipts to the Educational Revenue Augmentation Fund, but shall include all other tax amounts which would otherwise be received by the City or Agency but for the other acts of the County of Orange, State of California, or federal government. If the Per Student Mitigation Fee is reduced by the City/Agency Property Tax Allocation such that an annual Per 1032/021877-0001 325087.0IC a10/08/02 -4- Student Mitigation Fee is less than zero, Pueblo Serra shall not be obligated to make any Per Student Mitigation Fee payment for that school year and the amount less than zero shall be carried over to the following year and added to the City/Agency Property Tax Allocation applicable to that subsequent year. The parties acknowledge that the City/Agency Property Tax Allocation is determined on the basis of a July 1 to June 30 fiscal year. The City/Agency Property Tax Allocation for a particular fiscal year shall correspond to the school year falling principally within the fiscal year (e.g., the City/Agency Property Tax Allocation for the period July 1, 2003 to June 30, 2004, shall apply to the school year falling September 1, 2003 to August 31, 2004). (E) Notwithstanding the provisions of Sections 2.1(A), (B), and (C), the Per Student Mitigation Fee shall never exceed, per fiscal year, that amount equal to the City/Agency Property Tax Allocation the City, City-controlled special districts, other City-controlled taxing entities, and the Community Redevelopment Agency of the City of San Juan Capistrano would have received if the Property was not deemed to be tax exempt. 2.2 Timing of Payment: Pueblo Serra shall be obligated to make the Per Student Mitigation Fee for the school year falling principally within the fiscal year within 60 days after the City has determined the City/Agency Property Tax Allocation for the applicable fiscal year and notified Pueblo Serra of the amount due, if applicable. 2.3 Public Use of Project Facilities. As part of the City approval of the South Campus facilities, Pueblo Sena will enter into an agreement with the City for the joint use of designated campus facilities by City organizations. The "Joint Facilities Use Agreement' entered into on April 22, 1996 between the City and Capistrano Unified School District will serve as a potential model of the use agreement to be entered into between the City and Pueblo Serra. 2.4 Financial Aid for, and Outreach to, City Children: Pueblo Serra will designate a portion of its financial aid program exclusively for the children of City residents. A committee made up of local individuals (Council member, cultural commission member, Mission pastor, etc.) will distribute awards. Pueblo Serra will also adopt a proactive outreach program to attract students from the City focusing particularly on the economically distressed areas of the City. 2.5 Commitment to On-site Private Security: Pueblo Serra will provide private, 24-hour security at the campus utilizing a combination of electronic monitoring systems and patrols. 2.6 Traffic Mitigation: Pueblo Serra will commit to provide mitigation for the traffic impacts attributable to its project. Applicable traffic mitigation required will be determined when the South Campus facilities are being reviewed and approved by the City. 3. DEFAULT PROVISIONS. The City and Pueblo Serra acknowledge and agree that further environmental and discretionary review of the South Campus Facilities will have to be undertaken prior to the use of the South Campus Facilities for the desired purpose. The parties also acknowledge that time is 1032/021877-0001 325087.010 a10/08/02 -5- of the essence. The purpose of this Default section is to therefore provide further assurances to the parties. 3.1 Interest Penalty for Late Payments by Pueblo Serra: If Pueblo Serra fails to make a payment to the City (if required when the credit for property tax accrued to the City is applied) within four weeks of the due date, a penalty at the rate of the Prime Rate plus 3% per annum shall be applied to the payment. For purposes of this section, the applicable Prime Rate published in the Wall Street Journal on the 151h day of the prior month (or the preceding business day if the 151h is not a business day). 3.2 City Obligation to Process Applications in Accordance with Timing Specification: In order to strengthen the planning process and to ensure that the expectations of the parties are adhered to, the South Campus Facilities shall be approved or disapproved by the City no later than December 31, 2003, subject to the exceptions set forth below. If the City does not approve the necessary entitlements for the South Campus Facilities by December 31, 2003, Pueblo Sena shall have no further obligation to provide the City with any of the Public Benefits provided in Section 2, with the exception of section 2.6, and Pueblo Sena's obligations under Section 2, with the exception of section 2.6, shall immediately cease and be of no further force and effect. This time period may be extended by a written amendment to this Agreement, signed by the parties on or before December 31, 2003. Pueblo Serra shall act in accordance with its obligations of good faith and fair dealing when granting extensions to the City under this provision as may be reasonably required. Notwithstanding the above, the December 31, 2003 time specification shall not apply in the following circumstances: (A) Third Party Litigation: If third party litigation forestalls the City's ability to timely approve Pueblo Serra's entitlement applications for the South Campus Facilities, the December 31, 2003 time specification shall be extended by the parties as reasonably required. (B) Failure of Pueblo Serra to Submit Complete Application Materials: If Pueblo Sena fails to submit an adequate and timely application to the City in order to allow the City to act on the entitlements within the December 31, 2003 time specification, the time specification shall be extended by the parties as reasonably required. 4. GENERAL PROVISIONS. 4.1 Amendments: City and Pueblo Sena agree that this Agreement, and any provision of this Agreement, may be amended in a signed writing executed by both parties. 4.2 Reconciliation of Per Student Mitigation Fee Payments: The parties hereby expressly acknowledge and agree that the Per Student Mitigation Fee Payments may need to be reconciled on a yearly basis to ensure that the parties intentions as expressed in sections 2.1(A), (B), (C), (D) and (E) are adhered to. To this end, the parties agree to create a mechanism by which to ensure that no overpayments or underpayments of the Per Student Mitigation Fee Payments are made. It is the parties' mutual intent that this Agreement ensure fundamental fairness to both parties and to ensure that neither party obtains a financial windfall. 4.3 Waiver of Estoppel: Notwithstanding any legal authorities to the contrary concerning the doctrines of waiver and estoppel as applied to public entities and the actions or 1032/021877-0001 325087.OIC a10/08/02 -6- inactions of public agencies or public agency officers and officials, the City acknowledges and agrees that Pueblo Serra and its successors and assigns to all or any interest in the Property is relying upon the contents of this Agreement and the City's execution of this Agreement and the recordation hereof, and that in consideration of such material reliance, City shall now and forever be estopped from denying the validity of this Agreement and City knowingly and expressly waives any such claim or defense. 4.4 Successors and Assigns: The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. To the extent of Declarant's (and its successors' and assigns') interest in the Property, the covenants of Declarant set forth in this Agreement shall be covenants running with the land and enforceable to the full extent permitted by applicable law. 4.5 Agreement Contingent Upon City Adoption of Initiative: The parties hereby expressly declare their mutual intent and understanding that this Agreement, in its entirety, is made contingent upon the City Council's adoption of the JSerra Education Initiative at its October 15, 2002 Council meeting. If the City Council does not adopt the JSerra Education Initiative on October 15, 2002, this Agreement, and every provision contained herein, shall be null and void, and of no further force and effect. [end—signature page follows] 1032/021877-0001 32e087.01c 810/08/02 -7- � • IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. City: CITY OF SAN JUAN CAPISTRANO By Mayor, City of San Juanapistrano BTTEST: ^ ✓ Y �CJ eg onahan C4yXlerk APPROVED AS TO FORM: By John Sha , City Attorney Pueblo Serr BL E LLC Y. Printed Name: By: Printed Name: Its: [end of signatures] 10321021877-0001 325087.01C a10/08/02 -8- STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) ^�— I On ©c'�& 2002, before me,�1 !� M06 Lp14'r-N'A ' personally appeared '?1y"} (?,guscl� , personally known to me (or proved to m6 on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that \he executed the same in-l*authorized capacity, and that by kc6l.6 signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. JAMES L FtEN COIpA.t 17150 ^�•CAUPO A ublic ORANGE OOUMTY Conor.pip.AUG.24 2008 [SEAL] 1032/021877-0001 325087.01C a10/08/02 -9- "iiG i. f,Y4'::9 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On October 15, 2002 before me, Margaret R. Monahan, City Clerk, personally appeared Diane Bathgate. Mayor personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. (SEAL) dew* WITNESS my hand and official seal. ;. ! 'iwi irri •� $• ar azet R. Monahan, City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Mayor Title Declaration of Covenants & Imulementation Signers are Representing Agreement(JSerra Education Initiative) Title or Type of Document The City of San Juan Capistrano 8ylus acknowledgements Number of Pages October 15, 2002 Date of Document Pueblo Serra LLC Reoresentative(s) Signer(s)Other Than Named Above EXHIBIT "A" Property -- Description Parcels 1, 2 and 3 as shown on Parcel Map No. 99-107, as per Map filed in Book 309, Pages 33-34 of Parcel Maps, in the Office of the County Recorder of Orange County, California. Assessor's Parcel No: 649-361-03 [Exhibit "A" continues on next page] A-1 PARCEL 1: That portion of the South Half of the Section 36, Township 7 South, Range 8 West, San Bernardino Base and Meridian, according to the official plat thereof, filed in the District Land Office, March 29, 1979 described as follows: Beginning at the point of intersection of the Southerly line of the land conveyed to Carl E. Buchheim and wife, by deed recorded in Book 1400, page 315, Official Records, in the office of the County Recorder of said County, and the Easterly line of california state highway, distant 30.99 feet Easterly and perpendicular from the centerline of said highway, as described in Book 281, page 245 of Deeds, in said office, thence along said Easterly line of Highway North 250 38' 25" East 144.02 feet to a tangent curve therein concave Westerly having a radius of 1030.00 feet; thence Northerly along said curve through a central angle of 60 07' 00" an arc distance of 109.96 feet to a point in the Southerly line of Parcel 2 as described in deed recorded October 31, 1958 in Book 4466, page 397 of Official Records, of said County, thence along said Southerly line South 890 18' 08" East 370.75 feet to a tangent curve concave Northerly having a radius of 1040.00 feet; thence Easterly along said curve through a central angle 170 04' 24" an arc distant of 309.90 feet to a point at which a radial bears South 160 22' 32" East; thence South 180 35' 13" East 153.00 feet; thence North 71° 06' 47" East 246.97 feet to a point that certain course described as North 320 33' 49" West 403.38 feet in the deed to the State of California, recorded September 25, 1967 in Boo 8382, page 849, Official Records of said County, thence South 320 33' 49" East along said course, 266.94 feet to the intersection with said Southerly line of the land conveyed to carl E. Buchheim and wife; thence Westerly along said last mentioned Southerly line to the point of beginning. Except therefrom that portion conveyed to the City of San Juan Capistrano, by deed recorded April 17, 1969 in Book 8931, page 47 and following of Official Records, in the office of the County Recorder of said County. EXCEPT THEREFROM all oil, gas, minerals and hydrocarbons, below a depth of 500 feet, without the right of surface entry, as reserved in instruments of record. PARCEL 2: That portion of the South Half of Section 36, Township 7 South, Range 8 West, San Bernardino Meridian, being also a portion of Parcel "T" as shown on a map recorded in Book 2, page 31 of Record of Surveys in said Orange County, described as follows: Commencing at the Northeasterly corner of Parcel "Q" as shown on said record of survey being also a point on the Westerly line of the Atchison, Topeka and Santa Fe Railway Company's right of way, 60.00 feet in width; thence North 700 05' 00" East along the Easterly prolongation of the Northerly line of Parcel "Q" a distance of 120.00 feet to a point on the Easterly line of California State Highway, now called Camino Capistrano, as described in the deed to the State of California, recorded February 28, 1925 in Book 565, page 189 of Deeds; being also the true point of beginning; thence along said Easterly line South 191 26' 00" East, 322.65 feet to a point on the BOundary line of Tract No. 5624, as recorded in Miscellaneous Maps, in Book 205, page 32 through 35 of the Official Records of Orange County; thence along said line North 700 34' 00" East 500.00 feet; thence continuing along the boundary of said Tract 5624, North 90 38' 43" East, 211.71 feet, to a point on the boundary of Tract 5946, as recorded in Miscellaneous Maps, in Book 218, pages 47 through 50 of the Official records of Orange County; thence along the boundary of said Tract North 90 38' 43" East 739.37 feet; thence continuing along the boundary of said Tract 5946 North 690 21' 41" East, 400.00 feet to point on the Westerly line of the San Diego Freeway; said line being described in a deed to the State of California, recorded April 15, 1958 in Book 4255, page 564 Official Records; thence along said Westerly line North 200 38' 19" West 90.00 feet to the intersection of said Westerly line with the Southerly line of the land described in a deed to Carl E. Buchheim, recorded March 29, 1946 in Book 1400, page 315, Official Records; thence along said Southerly line North 890 48' 00" West, 1,239.28 feet to the intersection of said Southerly line with the Easterly line of California State Highway now Calle Camino Capistrano, thence along A-2 said Easterly line South 240 03'20"West, 3.37 feet to the beginning of a tangent curve concave Southeasterly and having a radius of 670.00 feet;thence continuing along said curve through a central angle of 440 19' 20" and an arc length of 518.29 feet;thence continuing along the Easterly lie of Camino Capistrano South 190 26' 00" East 552.80 feet to the true point of Beginning. Except therefrom that portion conveyed to the State of California deed recorded September 26, 1967 in Book 8384, pages 194 and following of Official Records, in the office of the County Recorder of said County. EXCEPT THEREFROM all oil, gas, minerals and hydrocarbons, below a depth of 500 feet, without the right of surface entry, as reserved in instruments of record. Assessor's Parcel No: 649-011-25, 649-011-30 A-3 Written Communications: Report dated October 15, 2002, from William M. Huber, Director of Engineering and Building. Presentation: William M. Huber, Director of Engineering and Building, reviewed the staff recommendation. Mayor Bathgate opened the public hearing and there being no response, closed the public hearing. Meg Monahan, City Clerk, read the title of the Ordinance entitled "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING CHAPTERS 1 AND 2 OF TITLE 8, 'BUILDING REGULATIONS", OF THE MUNICIPAL CODE RELATING TO THE ADOPTION OF THE 2001 CALIFORNIA BUILDING STANDARDS CODES INCORPORATING THE UNIFORM BUILDING CODE, 1997 EDITION; NATIONAL ELECTRICAL CODE, 1999 EDITION; UNIFORM PLUMBING CODE, 2000 EDITION; UNIFORM MECHANICAL CODE, 2000 EDITION, 2001 CALIFORNIA ENERGY CODE, WITH APPENDICES, AS AMENDED." Council Action: Moved by Council Member Swerdlin, seconded by Council Member Hart and carried unanimously, 5-0, to approve introduction and first reading of the Ordinance. RECESS AND RECONVENE Council recessed at 10:52 p.m. to convene to the San Juan Capistrano Community Redevelopment Agency and Capistrano Valley Water District meetings and reconvened at 10:56 p.m. ADMINISTRATIVE ITEMS H REPORTS ON THE JSERRA INITIATIVE (H1a through H1d combined) 1. ORDINANCE NO. 868 ADOPTED AMENDING THE GENERAL PLAN AND AMENDING THE ZONING AS SET FORTH IN THE JSERRA EDUCATION INITIATIVE; DECLARATION OF COVENANTS AND IMPLEMENTATION AGREEMENT APPROVED BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND PUEBLO SERRA,LLC REGARDING THE JSERRA EDUCATION INITIATIVE; AND, RECEIPT AND PROCESSING OF A STOCKPILE PERMIT IN ACCORDANCE WITH CODE REQUIREMENTS APPROVED (600.30/630.20) Description: At the City Council meeting of September 17, 2002, the Council established an Ad Hoc Committee to meet and discuss with the sponsors of the Initiative, to negotiate a possible agreement to address issues in an attempt to reduce anticipated impacts caused by implementing the initiative. The Ad Hoc City Council Minutes 7 10-15-02 Committee drafted an agreement should the City Council consider adoption of the contents of the Initiative in-lieu of setting a special election. The Committee also recommends approving a stockpile permit with conditions of approval designed to ensure protection of the identified native American artifact site. a. Report and Recommendation from Ad Hoc Committee on the JSERRA Educations Initiative Written Communications: Reportdated October 15,2002,from the JSERRA Ad Hoc Committee. Presentation: David Swerdlin, Ad Hoc Committee Chairman, discussed the points of interest regarding potential impacts of the initiative as well as community benefits. He reported the draft agreement sets enrollment at 2000 students per year instead of the proposed 3000; allows per student fees which automatically increase after the third year; implements mitigation of the traffic impacts; implements financial aid for City youth; provides for public use of project facilities; and, authorizes staff to process a temporary stock piling permit. b. Consideration of Report on Initiative Petition (JSerra Education Initiative - Planning Director Written Communications: Report dated October 15, 2002, from Thomas Tomlinson, Planning Director. Presentation: Thomas Tomlinson, Planning Director, reviewed the provisions of the General Plan and Land Use Code that would be amended to allow the development, construction, and operation of a school for property located east of the intersection of Camino Capistrano and Junipero Serra, should the initiative be adopted. C. JSERRA Initiative Process - City Attorney Written Communications: Report dated October 15, 2002, from John R. Shaw, City Attorney. Presentation: John R. Shaw, City Attorney, reported per the Elections Code Section 9214, the City Council must either adopt the initiative as proposed or call for a special election. He also noted that applicability of the CEQA process does not apply if the ordinance adopting the JSERRA initiative is approved. d. Consideration of Conducting and Funding a Special Election (JSERRA Initiative) - City Clerk City Council Minutes 8 10-15-02 Written Communications: Report dated October 15, 2002, from Meg Monahan, City Clerk. Presentation:Meg Monahan,City Clerk, reported that should the City Council call a special election to place the initiative on the ballot, the election would be held on January 14, 2003. The costs to conduct a special election are estimated at $34,000. These funds would need to be appropriated and a request made to have the County conduct the election. Written Communication: Report dated October 15,2002, by the JSERRA Ad Hoc Committee Letters opposing the project: Letter dated October 6, 2002,from Ruthie Ann Stoffel,Tustin; letter dated October 13,2002,from Matt Coker, Costa Mesa; letter dated October 13, 2002,from Michael Anthony Cheatham; letter dated October 13, 2002,from Rhonda Robles; letter dated October 14, 2002,from Linda Samels Ceballos, Los Angeles; letter dated October 14, 2002, from Anthony Rivera,Archaeology Committee,Juaneno Band of Mission Indians; letter dated October 14, 2002, from Brother Joshua Seidl, Society of St. Paul, Ohio; letter dated October 14, 2002,from Kristine Nelson, Oceanside; letter dated October 13, 2002, from Sonia Johnston, Tribal Chairperson, Juaneno Band of Mission Indians; letter dated October 13, 2002, from Diane A. Carry, Santa Ana; and letter received from C. Candace Coffman, University of California at Irvine. Cards received from Lana Huie, San Clemente; Carolyn Peterson, Lake Forest; Jillison Tietz, City resident; Brett G. Nelson, City resident; Doran A. Farnum,City resident;Amy Jones,City resident; Ricardo Duffy,City resident; Marla Chappelear,City resident;Marilee Keeney,Laguna Niguel;and Walter B. Davis, City resident, supporting preservation of the sacred site of the Acjachamen/Juaneno people. Letter dated October 1,2002,from Wayne Peterson of Wayne Peterson and Associates representing Pueblo Serra LLC, owner of the 29.2 acre-site requesting approval from Council to import 27K cubic yards of earth to provide increased cover over the Native American ancestral remains that exist on the site. Public Comment: Spoke in favor of the project: Wayne Peterson, David Belardes,Joyce Perry, John Ramirez, Tony Forster, Reed Royalty and Steve Hammond. Spoke in opposition to the project: Damien Shilo, Steven Quevedo, Larry City Council Minutes 9 10-15-02 Smith, Orrie Brown, Michael Merrifield, Robert LaCoss, Louis Valenzuela Robles Jr., Rebecca Robles, Fran Yorba, Michelle Flores,Wendy Broffman, Luis Arturo Guevaro, Rhonda Robles, Ricardo Duffy,Anna Christensen, Paul Arms, Richard Stowe, Paula Stienborne, Doug Korfhof and Julian Golllette. Made general comments: Roxy Gonzales spoke on CEQA issues and had attempted to file an appeal concerning the environmental issues; Rev. Charles R. White Lisa Rosen felt City moving too fast; Patricia Martz spoke on preservation issues; Kim Kenton spoke on traffic issues; Eleanor Robins spoke of soil contaminants. Council Comments: Mayor pro tem Gelff stated the Indian burial area was a major consideration for the Ad Hoc Committee. He strongly supported proceeding with the project. Council Member Swerdlin stated the property must go through the process of being rezoned in order to proceed with a high school or a cultural center. He supported the JSerra project. Council Member Hart felt the JSerra proposal was sensitive to the concerns of the Juaneno Tribe. He supports the project and stated that CEQA guidelines will apply for all construction on the site as well as traffic. Archeology concerns would be addressed. Council Member Campbell stated the project would provide benefits to the City but was concerned about the changes that would be made to the recently amended general plan. She felt more input was needed from the residents and supported placing the initiative on the ballot. Mayor Bathgate stated the proposed changes to the general plan were significant and would affect this site as well as other sites within the City. She supported placing the initiative on the ballot. Meg Monahan, City Clerk, read the title of the Ordinance entitled "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING THE GENERAL PLANAND CHANGING THEZONING FOR 38 ACRES OF LAND TO PUBLIC INSTITUTIONAL FOR PROPERTY IDENTIFIED AS ASSESSOR PARCEL NUMBERS 649-361-03,649-011-25, AND 649-011-30, IN ACCORDANCE WITH THE PROVISIONS OF THE JSERRA EDUCATION INITIATIVE." Council Action: Moved by Council Member Swerdlin, seconded by Council Member Hart and carried unanimously, 3-2-0 to adopt Ordinance No. 868 City Council Minutes 10 10-15-02 amending the General Plan and amending the zoning as set forth in the JSerra Education Initiative; Agreement entitled "Declaration of Covenants and Implementation Agreement by and between the City of San Juan Capistrano and Pueblo Serra, LLC regarding the JSerra Education Initiative' approved; and, receipt and processing of a stockpile permit in accordance with code requirements approved. ROLL CALL AYES: COUNCIL MEMBERS: Swerdlin, Hart and Mayor pro tem Gelff NOES: COUNCIL MEMBERS: Campbell and Mayor Bathgate ABSTAIN: COUNCIL MEMBERS None H2 PLANNING DIRECTOR a RESOLUTION NO. 02-10-15-07 ADOPTED AUTHORIZING SUBMITTAL OF APPLICATION TO THE CALIFORNIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT FOR FUNDING UNDER THE 2002 HOME PROGRAM (430.40) Proiect Description: On August 1, 2002, the State issued a Notice of Funding Availability for the 2002 Home Investment Partnership Program. The Notice provides specific application criteria including eligible activities, maximum activity amount that can be requested and due date of the application. Staff is proposing that the State HOME Program application include both a housing rehabilitation and a first-time home buyer program as well as a request for the maximum amount of funding. Written Communication: Report dated October 15, 2002, by Thomas Tomlinson, Director of Planning. Council Action: Moved by Swerdlin, seconded by Mayor pro tem Gelff and carried unanimously, 5-0, to adopt Resolution No. 02-10-15-07 entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA AUTHORIZING SUBMITTAL OF AN APPLICATION TO THE CALIFORNIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT FOR FUNDING UNDER THE HOME INVESTMENT PARTNERSHIP PROGRAM, EXECUTION OF AN AGREEMENT, AND OTHER DOCUMENTS;" and, approve a modification to the first-time homebuyer program rules, policies and procedures. City Council Minutes 11 10-15-02 H3 CITY MANAGER a $8,000 APPROPRIATED FROM THE GENERAL FUND RESERVE TO BUILD AND INSTALL AN ASSOCIATION SENIOR ACTION PROGRAM MONUMENT AT THE HISTORIC TOWN CENTER PARK (920.40) Project Description:The City Council has expressed a desire to have an Associated Senior Action Program (ASAP) monument installed in the downtown area to celebrate the contributions of the many ASAP volunteers who have donated so much to our community. Staff recommends $7,200 be appropriated from the General Funds Reserves to cover the cost of the monument, including $800 for lighting. Written Communication: Report dated October 15, 2002, by Julia Silva, Assistant City Manager. Council Action: Moved by Council Member Campbell, seconded by Mayor pro tem Gelff and carried unanimously, 5-0, to appropriate $8,000 from the General Fund Reserves to Account 01-62538-4122 to build and install an Associated Senior Action Program (ASAP) monument at the Historic Town Center Park H4 ENGINEERING AND BUILDING DIRECTOR a STRATEGIC TRANSPORTATION PLAN ADOPTED AND STAFF DIRECTED TO RETURN TO THE CITY COUNCIL WITH A DETAILED PLAN FOR AN AGGRESSIVE CAMPAIGN BY THE CITY TO IMPLEMENT THE STRATEGIES (590.60) Project Description: The City Council directed staff to prepare a Strategic Transportation Plan to consider regional traffic impacts to the City from projects such as the Rancho Mission Viejo Project, La Pata Extension, and the Foothill Corridor South Extension, etc. The study makes a number of recommendations to help to divert traffic away from the community and reduce the impacts of future traffic growth. Staff recommends adopting the Strategic Plan. Written Communication: Report dated October 15,2002, and Supplemental Report dated October 10,2002, by William M. Huber, Director of Engineering and Building. Presentation:William M. Huber, Director of Engineering and Building, reviewed the staff recommendation and reported staff had revised their recommendation to include returning to the City Council at a future date with a detailed plan for an aggressive campaign by the City to cause the implementation of the strategies. City Council Minutes 12 10-15-02 10/15/2002 AGENDA ITEM H 1 a TO: Honorable City Council FROM: JSERRA Ad Hoc Committee: Committee Chairman Swerdlin, Mayor Pro Tem Gelff, Planning Commission Chairman Cohen SUBJECT: Report and Recommendation from the Ad Hoc Committee on the JSERRA Education Initiative RECOMMENDATION Receive the report and recommendation from the Ad Hoc Committee and upon receipt of public testimony take the following actions: 1. Approve the agreementwith Pueblo Serra LLC,sponsors ofthe JSERRA Education Initiative setting forth limitations, restrictions and obligations for the establishment of a private high school on the parcels so identified by the initiative. 2. Introduce an ordinance to (1)amend the General Plan as set forth in the JSERRA Education Initiative; and, (2) amend the zoning for the subject parcels to Public Institutional, as set forth in the JSERRA Education Initiative. 3. Authorize the issuance of a temporary stockpile permit on the Buchheim property, subject to conditions. A. APPLICANT REPRESENTATIVE Wayne Peterson Wayne Peterson and Associates 23988 Skyline Drive Mission Viejo, California 92692 B. SUMMARY AND RECOMMENDATION. At the City Council meeting of September 17,2002,the Council agreed to establish an Ad Hoc Committee to meet and discuss with the applicant sponsors of the Initiative a possible agreement that would address focal issues that would reduce anticipated impacts from the implementation of the terms of the Initiative.The Mayor appointed Council members Gelff and Swerdlin and Planning Commission Chairman Cohen to representthe City in meetings with representatives from JSERRA High School (sponsors of the Initiative). The Ad Hoc Committee during the last three weeks has met and discussed points of interest and concerns with the representatives regarding the potential impacts that could be anticipated from the implementation of the Initiative. r AGENDA ITEM -2- October 15, 2002 As a result of these meetings, the Ad Hoc Committee and JSERRA High School have agreed to a draft agreement of terms that would apply to the property covered by the Initiative, should the City Council consider adoption of the contents of the Initiative in-lieu of setting a special election. In addition to the draft agreement,these discussions also considered a request for a stockpile permit to allow the temporary placement of soil on the Buchheim property. Since this issue is related to a Council policy decision, the Ad Hoc Committee has also included this request for City Council consideration. The Ad Hoc Committee, upon completion of this process, is forwarding a recommendation to the City Council to accept the provisions of the qualified Initiative subject to the provisions of the agreement between the City and the petitioners,JSERRA High School(Pueblo Serra LLC).The Ad Hoc Committee has made this recommendation based upon the findings that the provisions of the agreement will benefit the City in reducing the impacts of the private high school below those contained in the Initiative; and, that the agreement provides for the generation of revenues to the City that will off-set any loss of funds due to the potential conversion of the properties from a taxable to non-taxable status, while insuring sufficient revenues to cover the cost of services for this type of land use. The agreement also includes a number of other provisions that control the intensity of land uses and the joint use of recreation and parking facilities for the benefit of the community. Each of these agreed limitations for both parties were not a part of the Initiative language, but would restrict the impacts of its provisions.A copy of the draft Agreement is included as Attachment 1 to this agenda report. Upon consultation with the site archaeologist and the designated representative from the Native American Commission, the Ad Hoc Committee is also recommending that the City Council consider the approval of a stockpile permit with conditions of approval designed to ensure protection of the identified native American artifact site. C. LEGAL BACKGROUND. On September 17, 2002, the City Attorney outlined the options that the City Council has in considering the Initiative per the California Elections Code. Those options were summarized as follows: 1. Determine whether to order a report pursuant to Elections Code 9212, concerning the effects of the Initiative on the City's General Plan; or, 2. Either adopt the Initiative Petition as proposed; or, 3. Order a special election and determine priorities for filing written arguments and permitting rebuttal arguments. AGENDA ITEM -3- October 15, 2002 The City Council at the meeting of September 17, 2002, ordered the preparation of a report pursuant to Elections Code 9212. Staff has prepared such a report which is a separate, but related agenda item for City Council consideration. At that same meeting,the City Council at the suggestion of the petition sponsors, formed an Ad Hoc Committee to meet with their representatives to discuss an agreement that would address the concerns raised by staff in their previous report to the City Council (dated September 3, 2002).The purpose of such an agreement would be to ensure that the impacts of the petition would be address. D. ISSUES. Do the provisions of the draft agreement mitigate the potential impacts of the establishment of a private school as contained in the provisions of the qualified Initiative Petition? If they do, should the City Council adopt the provisions of the Initiative Petition, subject to the restrictions and obligations set forth in the draft agreement? Finally, should the City Council consider the request for a stockpile permit prior to approval of site development plans for the Buchheim property? E. AD HOC COMMITTEE RECOMMENDATIONS. The Ad Hoc Committee has considered the contents of the draft agreement, the options permitted by the Elections Code, and the stockpile permit request and forwards the items with the following findings: 1. Provisions of the Draft Agreement. The draft agreement after the recitals contains a number of covenants thatwould be recorded againstthe property. These are described as follows: a. North Campus Facilities. This provision would permit the establishment of a private high school on the area to be known as the "north campus", the former Sycamore Commons. Under this provision,the initial school year would begin on or before September 1, 2003. Enrollment of the School would not exceed 2,000 students per year, inclusive of all class levels. Ad Hoc Committee Comments. This provision will limit the size of the school enrollment to 2,000 students. The qualified Initiative Petition would allow an enrollment of 3,000 students. In the recitals of the agreement, expansion of enrollment above 2,000 would require further City consideration and actions. Thus, the agreement provides a mechanism for reducing the potential impacts of the Initiative Petition by limiting student enrollment. b. South Campus Facilities.This provision sets forth the development concept for the area to be known as the "south campus,"the former AGENDA ITEM -4- October 15, 2002 Buchheim parcel. It caps the development to not more than 150,000 square feet in buildings, including a gymnasium, a performing arts center, a chapel, a competition swimming/diving center, classrooms, and support/maintenance/energy facilities. The prior Office development proposal was for 450,000 square feet. This provision also recognizes that development of the "south campus" will be subject to the City's development review process. Ad Hoc Committee Comments. This provision recognizes that the development and arrangement of the "south campus"facilities will be subject to the City's development review process (Architectural Control Application). This will allow structures to be evaluated and placed in appropriate locations on the property without impacting the mapped archaeological site on the property(protecting the existing native American artifacts and burials). C. Per Student Fee Imposition. The draft agreement contains a fee program to off-set lost revenues and costs of providing public services in support of a high school use. The agreement contains both an initial financial commitment for the first school year(September 2003 through September 2004) of a $172,000. For subsequent school years the minimum fee paid to the City would be $200,000 or $200 per student whichever is greater. The agreement also includes an escalation clause that the per student fee will be increase by 2% annually. Ad Hoc Committee Comments. The Initiative Petition states that a student fee may be provided by the private high school to assist the City in off-setting loss revenues that are generated by the land use change. If a special election was held and the Initiative Petition was successful, there is no provision that would mandate the imposition of a fee program to off-set these financial impacts to the City. The provisions of the agreement would insure that the City receives revenue to off set the cost of a private high school on the parcels. Since, JSERRA High School has acquired a land lease but has not acquired the underlying fee title to the property forthe"south campus" the property and improvements may be subject to property tax. However, this provision for a student fee will insure that the City will receive revenue from the property in the event the County Assessor does grant tax exempt status to JSERRA High School. 0 0 AGENDA ITEM -5- October 15, 2002 d. Processing of Development Applications. In order to ensure the expectations of Pueblo Serra LLC for the "south campus" are considered and approved in a timely manner by the City, a provision has been included in the agreement (Section 3.2). This section provides that if the City does not approve the necessary entitlements forthe south campus facilities by December 31,2003,the high school will have no further obligation to provide the Citywith any of the Public Benefits provided in Section 2 of the agreement.This time line would not apply if there was third party litigation or a failure of the high school to submit complete application materials in a timely manner so that the City could process the plans through the designated "Architectural Control" application process. Ad Hoc Committee Comments. The time frames as outlined in the agreement are more than adequate to considerdevelopment plans for the "south campus"and should not adversely impact the contents of the agreement. This is based upon the additional language regarding delays due to third party litigation and their failure to timely submit their applications. e. Public Use of Project Facilities. A provision has been included in the agreement that as a part of City's Design Review for the "south campus,"the applicant will enter into an agreement with the City for joint use of these designated campus facilities by City organizations. Ad Hoc Committee Comments. Although non-residential projects are not required to contribute to providing recreational amenities for the community, this provision of the agreement establishes the mechanism to benefit to the community from the development of recreational improvements that would be made available to City organizations. In discussions with the Ad Hoc Committee it was recognized that the school would have first use of their facilities and that there would be some limitations for security and maintenance considerations. The use would be limited to scheduled organizational programs and not open for general public access. In spite of these limitations, the execution of a joint use agreement will provide needed additional facilities that will benefit the residents of the community. f. Financial Aid and Outreach for City Youth. The applicants have agreed to designate a portion of its financial aid program, exclusively for children of City residents. A committee of local residents would distribute these educational scholarships. In addition, the applicant AGENDA ITEM -6- October 15, 2002 will also adopt a pro-active outreach program to recruit students from the City focusing on economically distressed households of the community. Ad Hoc Committee Comments. The inclusion of this program ensures that academically-eligible children ofthe community will have an opportunity to attend this private learning institution, in spite of the family's economic ability to pay tuition. Again, this section provides a stipulated benefit for City residents. g. Traffic Mitigation. The agreement contains a provision by which the applicant commits to mitigating traffic impacts attributable to its project as determined by future traffic studies commissioned by the City. Ad Hoc Committee Comments.As noted in a related agenda item, a traffic study has been prepared to address the general impacts of the change in land use and the establishment of private high school. In that study number of mitigation measures have been identified to off-set the impacts of this type of land use. The provisions of this agreement(student enrollment levels)and future design review of the south campus improvements will require additional traffic analysis in accordance with fulfillment of the provisions of the California Environmental Quality Act. This section recognizes this fact and sets forth a commitment that the applicants will be responsible for constructing mitigation improvements for direct project impacts and pay fees for long term cumulative impacts. These measures are designed to reduce the school's impacts to the thresholds of the City's General Plan Circulation Element. h. On-site Private Security. The applicant has included a provision in the agreement that the high school will provide 24-hour security at the campus utilizing a combination of electronic monitoring systems and patrols. Ad Hoc Committee Comments. Although generally consistent with the practices of other private education institutions in the City, the provision of private security services will reduce the need of police services to cover these service needs on a non-emergency basis. By instituting this commitment 2. Request for a Temporary Stockpile Permit. As part of the Ad Hoc Committee discussions with the representatives of Pueblo Serra LLC, a AGENDA ITEM -7- October 15, 2002 request for a stockpile permit was received. The purpose of the request was to be able to accept currently available earth exports from other developments in recognition that development of the south campus would require additional fill material (as a minimum, placing a cap over the native American artifacts). This request has been made by Wayne Peterson in a letter dated October 1, 2002 (attachment 4). In response to this request,the Ad Hoc Committee met with representatives of the Juaneno Band of Mission Indians. In addition,staff consulted with the archaeologist of record on the site from the Chambers Group(Roger Mason, Ph.D., Director of Cultural Resources). It was agreed that no stockpile material should be placed on or over the sensitive resource site, but on the easterly portion of the south property, adjacent to the freeway, behind the existing Ultramar service station.This location would permit an orderly review of development plans for the south campus without impacting the sensitive artifact site. Once a plan is approved, the design of a proper mitigation plan to ensure preservation of the artifacts in-situ could be considered and implemented. Ad Hoc Committee Comments. The purpose of City Council consideration of the request is that undernormal procedures, a stockpile plan would not be processed unless related to a development entitlement. This is not the case in this instance.An entitlement has not been previously granted by the City. However, if the City Council takes an action to approve the Initiative Petition and the related agreement, an entitlement will have been granted as it relates to the General Plan amendment, the zoning of the property, and an understanding in the agreement that some form of development will be considered for the south campus property. Based upon conditioning the stockpile and haul routes on the site to be located outside the sensitive artifact area, the archaeological site is protected and necessary rill material is placed on-site to accommodate future use of the property. The inclusion of a section within the draft agreement would authorize staff to review and approve such a permit. Therefore it is recommended that in approving the stockpile permit per the agreement that a separate action by the City Council be taken to authorize the issuance of the permit subject to the following conditions: a. The Chambers Group shall in consultation with the City designate a stockpile area for the receipt of fill material that will not impact the sensitive native American artifact site. This consultation shall also include the designated native American representative as established by the State Native American Commission. AGENDA ITEM -8- October 15, 2002 b. A detailed stockpile grading plan,showing proposed grading shall be submitted to the City for review and approval by the Director of Engineering and Building Services and Planning Director. C. A haul route to the property shall also be reviewed and approved per the provision of the Condition b, above. d. Prior to start of the stockpile operation,fencing ordelineation markers shall be placed marking the area of sensitivity and sign age prohibiting any activity within said area. e. The stockpile permit shall include an erosion control plan that will comply with all requirements of the City in accordance with the NPDES requirements of the San Diego Regional Water Quality Control Board. f. The stockpile permit shall include a construction impact mitigation plan, including interim and permanent dust control complying with all requirements as set forth in Title 9 of the Municipal Code. g. Payment of all applicable permit fees. h. The City shall process the plans and reports as expediently as possible and shall not unreasonably withhold issuance of a permit for the stockpiling of protective fill. In no instance will the City issue said permit prior to approval and execution of the agreement by the City Council. In summary,the Ad Hoc Committee believes the provisions of the draft agreement will ensure that the community will achieve Citywide benefits that may not be possible, if a special election was successful. Its provisions address many of the issues that were raised in the initial report prepared by the Planning Services Department to the City Council dated September 3, 2002 on a separate item requesting initiation of a amendment to the General Plan (prepared prior to qualification of the Initiative Petition). In addition, the recommended conditions of approval to be placed upon the stockpile permit will ensure protection of the native American artifact site. OTHER COMMISSION REVIEW AND RECOMMENDATION None. 0 9 AGENDA ITEM -9- October 15, 2002 COMMUNITY REDEVELOPMENT AGENCY The properties identified in the Initiative Petition are located in the boundaries of the San Juan Capistrano Community Redevelopment Agency. Adoption of the provisions of the Initiative Petition will change the long-term land use for these properties. There is no financial assistance from the Agency regarding this proposal. PUBLIC NOTIFICATION None required. Copies of this report have been provided to the representative for Pueblo Serra LLC,, and the following individuals who have requested notification: David Belardes, Joyce StanfielcfPery, and Fran Yorba FINANCIAL CONSIDERATIONS Provisions for creating a revenue to the City to off-set loss of existing revenues and providing services to the private high school have been set forth in the draft agreement. Costs for preparation of this agenda item shall be paid from the General Fund. AGENDA ITEM -10- October 15, 2002 ALTERNATE ACTIONS 1. Introduce an ordinance adopting the provisions of the Initiative Petition;approve the execution of the Implementation Agreement; and, authorize a stockpile permit subject to conditions. 2. Introduce an ordinance adopting the provisions of the Initiative Petition;approve the execution of the Implementation Agreement; and, authorize a stockpile permit subject to conditions, with modifications. 3. Take an action to not approve the Implementation Agreement and request for a stockpile permit and set a Special Election for Tuesday, January 14, 2003. RECOMMENDATION Receive the report and recommendation from the Ad Hoc Committee and upon receipt of public testimony take the following actions: 1. Approve the agreementwith Pueblo Serra LLC,sponsors of the JSERRA Education Initiative setting forth limitations, restrictions and obligations for the establishment of a private high school on the parcels so identified by the initiative. 2. Introduce an ordinance to (1) amend the General Plan as set forth in the JSERRA Education Initiative; and, (2) amend the zoning for the subject parcels to Public Institutional, as set forth in the JSERRA Education Initiative. 3. Authorize the issuance of a temporary stockpile permit on the Buchheim property, subject to conditions. Respectfully submitted, David Swerdlin, Chairman JSERRA Ad Hoc Committee Attachments: 1. Draft Implementation Agreement. 2. Ordinance Adopting the JSERRA Education Initiative 3. Letter dated October 1, 2002, from Wayne Peterson, requesting a stockpile permit Recording Requested by And When Recorded Return to: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675M Attn: City Clerk [Exempt From Recording Fee Per Gov. Code §6103] DECLARATION OF COVENANTS AND IMPLEMENTATION AGREEMENT BY AND BETWEEN CITY OF SAN JUAN CAPISTRANO AND PUEBLO SERRA,LLC REGARDING THE JSERRA EDUCATION INITIATIVE (JSerra High School) This Declaration of Covenants and Implementation Agreement (hereinafter "Agreement") is entered into effective as of October 15, 2002, (hereinafter the `Effective Date') by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter"City), and Pueblo Serra LLC, a California Limited Liability Company (hereinafter "Declarant" or "Pueblo Serra') to implement the"JSerra Education Initiative." Declarant hereby covenants for its heirs and successors: RECITALS A. On or about July 25, citizens of San Juan Capistrano commenced circulation of the "JSerra Education Initiative" ("Initiative'). On or about September 11, 2002, the Orange County Registrar of Voters certified that the Initiative contained valid signatures of City residents constituting more than 15% of the voters of the City according to the last report of City registration. Therefore, pursuant to the Elections Code, the Initiative was required to either be promptly adopted by the City, or placed before the voters at an advanced special election. B. Pueblo Serra owns in fee simple title that approximately 9 acres of real property and improvements adjacent to, and east of, Camino Capistrano and Junipero Serra Road that is 1032/021377-0001 325037.OIC a10/0&02 ATTACHMENT 1 subject to the Initiative, generally described as APN 649-361-03, and also currently has a vested leasehold interest in that approximately 29 acres generally described as APNs 649-011-25, and 649-011-30, which are also subject to the Initiative. Pueblo Serra therefore has a property interest in all of the property subject to the Initiative (collectively, "Property"). The Property is further described as set forth in the legal description attached hereto as Exhibit"A." C. On September 17, 2002, in accordance with the Elections Code, the City Council requested that a report be prepared (the "report") to ascertain the effects of the Initiative on the City's General Plan and Zoning Code, and on other matters. D. On October 15, 2002, the City Council received the report to determine whether, in accordance with the Elections Code, to either adopt the Initiative, or to place it before City voters at a special election. Thereafter, the City Council voted to adopt the Initiative. Also on this date, City and Pueblo Sena executed this Agreement. E. The City and Pueblo Sena hereby express their mutual understanding and intention that this Agreement will serve the public interest and general welfare of the City. By adopting the Initiative,the City recognizes that Pueblo Serra may use as a principal permitted use (i.e., as a matter of right) the structures located, or to be located, on APN 649-361-03 for private school uses ("North Campus Facilities'). At the same time, Pueblo Serra recognizes the importance of ensuring, through the execution of this Agreement, that it provide various public benefits to the City to offset the demand on public services it will generate as a City property owner. Executing this Agreement concurrently with the adoption of the Initiative thereby ensures that the expectations of the parties with respect to the future development of Property are memorialized and also strengthens the planning process. F. By this Agreement, City and Pueblo Serra intend that the Property be developed as a private, Catholic high school ("School"), grades 9 through 12, with enrollment of up to 2,000 students. Pursuant to the legal effect of the Initiative, the property north of Junipero Sema, APN 649-361-03 (defined above and hereafter as "North Campus Facilities'), will utilize the existing two structures, and a third structure that has already been approved and permitted by the City for classroom, support, and administrative facilities, as provided in the Initiative and this Agreement and as intended by Pueblo Serra. Subject to further environmental review, the property south of Junipero Serra, APN 649-011-25 and 649-011-30 ("South Campus Facilities'), may be developed with sport, aquatic, recreational facilities, maintenance buildings, classrooms a performing arts center, and a chapel. The statements of legislative intent, and the legislative findings and purpose as contained in the Initiative, are hereby incorporated into this Agreement by reference. G. Article Il, section 11 of the California Constitution reserves unto the people the power of Initiative. In furtherance of this power, the people of the City of San Juan Capistrano have stated their intent that this Project be approved, developed, and operational in an expeditious manner, and that the City fully cooperate with the Project applicant to ensure that the Project is fully developed and operational in an expeditious manner. Therefore, in accordance with Article H, section 11 of the California Constitution and the people's constitutionally- reserved power of initiative, it is the intent of the City and Pueblo Serra to enter into this Agreement. 1032/021877-0001 325087.OIC a10/OW2 —2— H. The City Council of the City of San Juan (hereinafter "City Council") has found that this Agreement is in the best public interest of the City and its residents. The Agreement provides a mechanism by which the City can obtain valuable public revenues to offset costs for City services such as police, fire, and recreational services, while at the same time ensures the prompt processing of applications for the development and operation of a Catholic high school, whose mission furthers the historical traditions of the City. The City and Pueblo Serra understand and agree that further City actions undertaken to approve aspects of the School not covered by this Agreement will require further City actions, as well as compliance with other applicable regional, state, and federal laws. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. IMPLEMENTATION GUIDELINES FOR THE PROPERTY. 1.1 Development and Use of the North and South Campus Facilities. The development expectations and use of the North and South Campus Facilities shall be governed by the provisions below: 1.2 Sequence of Entitlements and Entitlement Applications. (A) The North Campus Facilities: Consistent with the legal effect and intent of the Initiative, once the Initiative becomes effective, the North Campus Facilities may be immediately used as a private Catholic high school as a principal permitted use (i.e., as a matter of right) with no further zoning, design review, or development review approvals required by the City with the expectation that the School will be opened and operational on or before September 1, 2003. Enrollment for the School shall not exceed 2,000 students per year, inclusive of all class levels. (B) The South Campus Facilities: Development of the South Campus Facilities to support the School (e.g. athletic fields, gymnasium, performing arts center with loft, aquatic center, tcnnis/basketball courts, parking lots, lighting, etc.), will be subject to the Initiative and the City's Development review process and will be reviewed and approved pursuant to the City's Development review process. It is understood and anticipated that the South Campus facilities may include not more than 150,000 square feet of new buildings, including a gymnasium, a performing arts center, a chapel, a competition swimming/diving center, classrooms, and support/maintenance/energy facilities. A permanent football stadium is not part of the plan. Baseball, softball, football, soccer, track, and tennis and basketball courts are also anticipated. It is also anticipated that a pedestrian bridge may be built across Junipero Serra linking the North and South Campus facilities. Further environmental review of the South Campus Facilities will be required. 1.3 Time of the Essence. The parties expressly acknowledge that time is of the essence of this Agreement. The City shall use its best efforts to expedite the planning and �032/021877-000] 325097.01C a10/08/02 —3— permitting process to facilitate the installation of the gymnasium and field sport facilities on the South Campus as soon as possible. 2. PUBLIC BENEFITS. The parties acknowledge and agree that development of the School will result in demands on public services and further acknowledge and agree that this Agreement confers unique benefits to Pueblo Serra which can be balanced by the provision of public benefits to the City. Accordingly, the parties intend by this Agreement to provide additional consideration to the public. 2.1 Per Student Mitigation Fee. In accordance with the above recitals,Pueblo Serra shall make the following payments to the City: (A) For the school year commencing September 1, 2003 through August 31, 2004,Pueblo Serra shall pay the City a single fee of$172,000. (B) For the school years commencing September 1, 2004 through August 31, 2005 and each school year thereafter,Pueblo Serra shall pay the City an annual fee equal to $200 per student enrolled in the regular full time curriculum at JSerra as of October 1,but in any event not less than $200,000 per school year. As an example, if during the September 1, 2004 through September 1, 2005 school year, Pueblo Serra has a student enrollment of 500 students, Pueblo Serra shall pay the City$200,000 to cover the annual payment for that school year($200 x 500= $100,000 < $200,000). If, however, during this same school year, Pueblo Serra has a student enrollment of 2,000 students,Pueblo Serra shall pay the City$400,000 for that school year($200 x 2,000=$400,000>$200,000). (C) In addition to the above provisions, commencing the third school year the Per Student Mitigation Fee (initially at $200 per student) to be paid by Pueblo Serra shall be increased two percent(2%)per year(on original base amount). (D) The parties expressly acknowledge that, at this point in time, it is unclear whether the Property will be deemed by the applicable authority to be exempt from the payment of real property taxes. To this end, notwithstanding any of the provisions in Sections 2.1(A), (B), and (C) above, if the Property is not deemed to be tax exempt in its entirety, Pueblo Serra shall continue to be obligated to pay the annual Per Student Mitigation Fee set forth above, but the amount due shall be reduced by an amount equal to the sum of(1) the gross real property taxes and assessments attributable to the Property that is allocated to (a) the City, (b) City- controlled special districts, and (c) other City-controlled taxing entities, and (2) the gross property tax increment attributable to the Property allocated to the Community Redevelopment Agency of the City of San Juan Capistrano pursuant to Health and Safety Code Section 33670(b) or successor statute. (collectively, the "City/Agency Property Tax Allocation'). The City/Agency Property Tax Allocation shall not include the diversion of all or a portion of City or Agency property tax receipts to the Educational Revenue Augmentation Fund, but shall include all other tax amounts which would otherwise be received by the City or Agency but for the other acts of the County of Orange, State of California, or federal government. If the Per Student Mitigation Fee is reduced by the City/Agency Property Tax Allocation such that an annual Per 1032/021877-0001 032/021877-0001 325087.01C -4- Student Mitigation Fee is less than zero, Pueblo Serra shall not be obligated to make any Per Student Mitigation Fee payment for that school year and the amount less than zero shall be carried over to the following year and added to the City/Agency Property Tax Allocation applicable to that subsequent year. The parties acknowledge that the City/Agency Property Tax Allocation is determined on the basis of a July I to June 30 fiscal year. The City/Agency Property Tax Allocation for a particular fiscal year shall correspond to the school year falling principally within the fiscal year (e.g., the City/Agency Property Tax Allocation for the period July 1, 2003 to June 30, 2004, shall apply to the school year falling September 1, 2003 to August 31, 2004). (E) Notwithstanding the provisions of Sections 2.1(A), (B), and (C), the Per Student Mitigation Fee shall never exceed, per fiscal year, that amount equal to the City/Agency Property Tax Allocation the City, City-controlled special districts, other City-controlled taxing entities, and the Community Redevelopment Agency of the City of San Juan Capistrano would have received if the Property was not deemed to be tax exempt. 2.2 Timing of Payment: Pueblo Serra shall be obligated to make the Per Student Mitigation Fee for the school year falling principally within the fiscal year within 60 days after the City has determined the City/Agency Property Tax Allocation for the applicable fiscal year and notified Pueblo Serra of the amount due, if applicable. 2.3 Public Use of Project Facilities. As part of the City approval of the South Campus facilities, Pueblo Sena will enter into an agreement with the City for the joint use of designated campus facilities by City organizations. The "Joint Facilities Use Agreement' entered into on April 22, 1996 between the City and Capistrano Unified School District will serve as a potential model of the use agreement to be entered into between the City and Pueblo Sena. 2.4 Financial Aid for, and Outreach to, City Children: Pueblo Sena will designate a portion of its financial aid program exclusively for the children of City residents. A committee made up of local individuals (Council member, cultural commission member, Mission pastor, etc.) will distribute awards. Pueblo Sena will also adopt a proactive outreach program to attract students from the City focusing particularly on the economically distressed areas of the City. 2.5 Commitment to On-site Private Security: Pueblo Sena will provide private, 24-hour security at the campus utilizing a combination of electronic monitoring systems and patrols. 2.6 Traffic Mitigation: Pueblo Sena will commit to provide mitigation for the traffic impacts attributable to its project. Applicable traffic mitigation required will be determined when the South Campus facilities are being reviewed and approved by the City. 3. DEFAULT PROVISIONS. The City and Pueblo Serra acknowledge and agree that further environmental and discretionary review of the South Campus Facilities will have to be undertaken prior to the use of the South Campus Facilities for the desired purpose. The parties also acknowledge that time is 1032/021677-0001 325087.OIC aI W08102 -5- • of the essence. The purpose of this Default section is to therefore provide further assurances to the parties. 3.1 Interest Penalty for Late Payments by Pueblo Serra: If Pueblo Serra fails to make a payment to the City (if required when the credit for property tax accrued to the City is applied) within four weeks of the due date, a penalty at the rate of the Prime Rate plus 3% per annum shall be applied to the payment. For purposes of this section, the applicable Prime Rate published in the Wall Street Journal on the 15`h day of the prior month(or the preceding business day if the 151h is not a business day). 3.2 City Obligation to Process Applications in Accordance with Timing Specification: In order to strengthen the planning process and to ensure that the expectations of the parties are adhered to, the South Campus Facilities shall be approved or disapproved by the City no later than December 31, 2003, subject to the exceptions set forth below. If the City does not approve the necessary entitlements for the South Campus Facilities by December 31, 2003, Pueblo Serra shall have no further obligation to provide the City with any of the Public Benefits provided in Section 2, with the exception of section 2.6, and Pueblo Serra's obligations under Section 2, with the exception of section 2.6, shall immediately cease and be of no further force and effect. This time period may be extended by a written amendment to this Agreement, signed by the parties on or before December 31, 2003. Pueblo Serra shall act in accordance with its obligations of good faith and fair dealing when granting extensions to the City under this provision as may be reasonably required. Notwithstanding the above, the December 31, 2003 time specification shall not apply in the following circumstances: (A) Third Party Litigation: If third party litigation forestalls the City's ability to timely approve Pueblo Serra's entitlement applications for the South Campus Facilities, the December 31, 2003 time specification shall be extended by the parties as reasonably required. (B) Failure of Pueblo Serra to Submit Complete Application Materials: If Pueblo Serra fails to submit an adequate and timely application to the City in order to allow the City to act on the entitlements within the December 31, 2003 time specification, the time specification shall be extended by the parties as reasonably required. 4. GENERAL PROVISIONS. 4.1 Amendments: City and Pueblo Serra agree that this Agreement, and any provision of this Agreement,may be amended in a signed writing executed by both parties. 4.2 Reconciliation of Per Student Mitigation Fee Payments: The parties hereby expressly acknowledge and agree that the Per Student Mitigation Fee Payments may need to be reconciled on a yearly basis to ensure that the parties intentions as expressed in sections 2.1(A), (B), (C), (D) and (E) are adhered to. To this end, the parties agree to create a mechanism by which to ensure that no overpayments or underpayments of the Per Student Mitigation Fee Payments are made. It is the parties' mutual intent that this Agreement ensure fundamental fairness to both parties and to ensure that neither party obtains a financial windfall. 4.3 Waiver of Estoppel: Notwithstanding any legal authorities to the contrary concerning the doctrines of waiver and estoppel as applied to public entities and the actions or 1032/021877-0001 325087.010 x10/08/02 -6- inactions of public agencies or public agency officers and officials, the City acknowledges and agrees that Pueblo Serra and its successors and assigns to all or any interest in the Property is relying upon the contents of this Agreement and the City's execution of this Agreement and the recordation hereof, and that in consideration of such material reliance, City shall now and forever be estopped from denying the validity of this Agreement and City knowingly and expressly waives any such claim or defense. 4.4 Successors and Assigns: The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. To the extent of Declarant's (and its successors' and assigns') interest in the Property, the covenants of Declarant set forth in this Agreement shall be covenants running with the land and enforceable to the full extent permitted by applicable law. 4.5 Agreement Contingent Upon City Adoption of Initiative: The parties hereby expressly declare their mutual intent and understanding that this Agreement, in its entirety, is made contingent upon the City Council's adoption of the JSerra Education Initiative at its October 15, 2002 Council meeting. If the City Council does not adopt the JSerra Education Initiative on October 15, 2002, this Agreement, and every provision contained herein, shall be null and void, and of no further force and effect. [end—signature page follows] 1032/021877-0001 325087.01C a10108/02 -7- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. City: CITY OF SAN JUAN CAPISTRANO By Mayor, City of San Juan Capistrano ATTEST: By Meg Monahan City Clerk APPROVED AS TO FORM: By John Shaw, City Attorney Pueblo Serra: PUEBLO SERRA,LLC By: Printed Name: Its: By: Printed Name: Its: [end of signatures] 10321021877-0001 325087.01C a101M02 '8' STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On 2002,before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 10)2/021877 0001 325087.01C a10/08/02 -9- STATE OF CALIFORNIA ) ) ss COUNTY OF On 2002,before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 1032/021877-0001 325087.01C al0MB/02 —10— STATE OF CALIFORNIA ) ss COUNTY OF ) .On 2002,before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 1032/021877-0001 325087.01C a10/08/02 -11- ORDINANCE NO. AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING THE GENERAL PLAN AND CHANGING THE ZONING FOR 38 ACRES OF LAND TO PUBLIC INSTITUTIONAL FOR PROPERTY IDENTIFIED AS ASSESSOR PARCEL NUMBERS 649-361-03, 649-011-25,AND 649-011-30,IN ACCORDANCE WITH THE PROVISIONS OF THE JSERRA EDUCATION INITIATIVE. THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findings. On or about July 25, 2002, citizens of San Juan Capistrano commenced circulation of the "JSERRA EDUCATION INITIATIVE". On or about September 11, 2002, the Orange County Registrarof Voters certified thatthe Initiative contained valid signatures of City residents constituting more than 15%of the voters of the City according to the last report of City registration. Therefore, pursuant to the Elections Code, the City Clerk has determined that Initiative is required to either be promptly adopted by the City, or placed before the voters at a special election. On September 17, 2002, in accordance with the Elections Code, the City Council requested that a report be prepared to ascertain the effects of the Initiative on the City's General Plan and Zoning Code and other matters. On September 17, 2002,the City Council also formed an ad hoc committee to meetwith representatives(Pueblo Serra,LLC)of the JSERRA EDUCATION INITIATIVE to consider issues related to potential impacts upon the community and satisfy the intent of the General Plan that any new private education facility that requires an amendment to the General Plan would not have an adverse financial impact on its viability. On October 15, 2002,the City Council received the report from the Planning Services Department regarding the Initiative's potential impacts upon the General Plan and a report from the appointed Ad Hoc Committee, including an agreement with the representatives of the JSERRA EDUCATION INITIATIVE. The City Council after reviewing the report from the Planning Services Department and the agreement entitled "Declaration of Covenants and Implementation Agreement by and Between the City of San Juan Capistrano and Pueblo Serra, LLC regarding the JSERRA EDUCATION INITIATIVE", has determined that proposed change in zoning for the designated properties per the executed agreement so noted, will be consistent with the General Plan. ATTACHMENT -1- 0 9 The Elections Code Section 9214, permits the City Council to adopt said Initiative or set a special election; and, The City Council is consideration of all of the above has determined to adopt said Initiative Petition (JSERRA Education Initiative) in lieu of setting the matter for a special election SECTION 2. Adoption of JSERRA Education Initiative The City Council hereby adopts the JSERRA Education Initiative as filed with the City Clerk, and incorporates said initiative in its entirety by reference. SECTION 3. Effective Date. This Ordinance shall take effect and be in force thirty (30) days after its passage. SECTION 4. City Clerk's Certification. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be posted at the duly designated posting places within the City and published once within fifteen (15) days after passage and adoption as required by law; or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office of the City Clerk five (5)days prior to the date of adoption of this Ordinance; and, within fifteen (15) days after adoption,the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance,together with the vote for and against the same, in the Office-of the City Clerk. PASSED, APPROVED AND ADOPTED this 15th day of October 2002. DIANE BATHGATE, MAYOR ATTEST: MARGARET R. MONAHAN, CITY CLERK -2- 0 THE JSERRA EDUCATION INITIATIVE - The People of the City of San Juan Capistrano do ordain and enact as follows: Section One: Title This Initiative measure shall be known and may be cited as"The JSerra Education Initiative." Section Two: Intent of the Initiative It is the intent of this Initiative measure: _ A. To amend various provisions of the General Plan and Land Use Code of the City of San Juan Capistrano("City)to allow the development,construction,and operation of a public or private school("Project")on approximately 38 acres of land located adjacent to,and east of,the intersection of Camino Capistrano and Junipero Serra Road in the City. The general location of the Project is shown on Figures E and F and is referred to as the"Project Site." The Assessor Parcel Numbers of the properties that are subject to this Initiative and are part of the Project Site are set forth in Section Three,below. B. To allow the currently vacant,undeveloped property consisting of approximately 29 acres of land located adjacent to,and east of,the intersection of Camino Capistrano and Junipero Serra Road,and south of Junipero Serra Roa_d,.to be developed,.used,and operated as part of the Project. C. To allow the property consisting of approximately 9 acres of land that has previously been developed as,and currently consists of an office complex located adjacent to, and east of,the intersection of Camino Capistrano and Junipero Serra Road,and north of Junipero Serra Road,to be developed,used,and operated as part of the Project. D. To allow the Project to be fully developed and operational in an expeditious manner by requiring the City to fully cooperate with the Project applicant wherever possible and to the maximum extent allowed by law when granting entitlements and issuing permits for the Project. Section Three: Definitions For the purpose of this Initiative,the following words and phrases shall have the following meanings: A. "Project Site"shall mean the approximately 38 acres of land located adjacent to, and east of,the intersection of Camino Capistrano and Junipero Serra Road in the City,bounded by Interstate 5 on the East,and generally comprised of,at the time this Initiative commenced circulating among the voters,Assessor Parcel Numbers("APN')649-361-03,649-011-25,and ,- .. 649-011-30. The"Project Site"does not include the Kaiser medical facility,generally comprised of APN 649-361-02;the property on which the Kaiser medical facility is located is not subject to this Initiative. The"Project Site"also does not include the two service stations, generally comprised of APN 649-361-04 and 649-011-29;these service stations are not subject to this Initiative. B. "Project"shall mean the development,construction,and operation of a public or private school on the Project Site,with a student enrollment of up to 3,000 students. The term "Project"shall include the development,construction and operation of any accessory facilities that are used as part of,or support the school,including,but not limited to,sports facilities, gymnasium facilities,recreational halls,maintenance buildings,and administrative buildings. Section Four: Competing,Regulatory Alternative A. In the event that another ballot measure(hereafter,"competing initiative') appears on the same ballot as this Initiative which seeks to adopt or impose any City General Plan or Land Use Code designations or requirements that differ in any regard to,or supplement, those contained in this Initiative,the voters hereby expressly declare their intent that if both the competing initiative and this Initiative receive a majority of votes cast,and if the Initiative �o>vox�e'ra000� xvmv.oi.mro�mr receives a greater number of votes than the competing initiative,this Initiative shall prevail in its entirety over the competing initiative without regard to whether rpecific provisions of each measure directly conflict with each other. Under these circumstances,the competing initiative shall have no force or effect and shall be void. B. In the event that both the competing initiative and this Initiative receive a majority of votes cast,and the competing initiative receives a greater number of votes than this Initiative, this Initiative shall be deemed to be complimentary to the competing initiative. To this end,and to the maximum extent permitted by law,the provisions of this Initiative shall be fully adopted except to the extent that specific provisions contained in each measure are deemed to be in direct conflict with each other on a"provision by provision'basis pursuant to Yoshisato v.Superior Court(1992)2 Cal.4`h 978. Section Five: Legislative Findings and Purpose The people of San Juan Capistrano find and declare the following: A. The Project Site is Ideal for the Location of a Public or Private School. The Project Site contains some of the last remaining parcels of land located within the City where a private or public school can be located. Because of its location away from most residential areas within the City,the Project will impose very little,if any,negative impacts on residential areas within the City,yet is easily accessible from all parts of the City due to the Project Site's location adjacent to the intersection of Camino Capistrano and Junipero Serra Road. The Project Site is also relatively close in proximity to the City's library. The voters hereby declare that the Project Site is appropriate for the location of a public or private school. B. The City has a Long and Proud Tradition of Providing Numerous and Diverse Educational Opportunities to the Community's Children and Residents. Beginning with the establishment of the San Juan Capistrano Mission in 1776 by Franciscan Missionaries,the City has a long and proud tradition of providing numerous educational opportunities for the community's children and residents. The Project is a continuation of this tradition. _.. C. This Initiative Will Help Alleviate the Educational Crisis That Currently Exists Within the State,County and City. An educational crisis currently exists within the State of California,the County of Orange,and the City. This crisis is due to severe overcrowding at local elementary and high schools,creating obstacles to providing the best possible learning environment. Within the past several years,local newspapers,.community organizations,and business leaders have recognized that this overcrowding is particularly severe in South Orange County and the City,most notably at Capistrano Valley High School. Additionally,because most high school students from the City attend high schools located outside of the City limits, and because most of these schools are either at,or over,their permanent building design capability,the impact on City students is particularly severe. While additional public schools may be developed within the City in the future,the adoption of this Initiative will help alleviate these crisis conditions. D. This Initiative Will Contribute to the Overall Economy and Health and Welfare of the City. Providing numerous educational opportunities within the City,and reducing the overcrowding that exists at local schools through the development of additional schools such as that proposed by the Project,contributes to the overall health and welfare and economy of the City by allowing students to have broader educational options and by strengthening family ties to the City. Enhancing educational opportunities within the City strengthens the local economy by providing additional mechanisms and opportunities for business and community leaders to play an active role in educating the City's children through booster programs and other activities that ensure community involvement in the education of the community's children. A highly competitive work force is dependant upon the availability of a wide may of educational opportunities within the City. Additionally,the development of the Project Site as a school facility will create numerous employment opportunities within the City. E. No New Taxes. Designating the Project Site to permit the development of public and private schools will help to relieve local taxpayers of the burden of acquiring land for additional school facilities. This Initiative does not raise or impose any new or additional taxes, and it is anticipated that the Project will likely be developed using entirely private funds. 39511901 a07ro1N3 -2- F. This Initiative Does Not Impede and In Fact Furthers the City's Economic Development Goals. This hiitiative does not impede the City's economic development goals. As recently as several years ago,the City was found to have an over-supply of commercial uses - serving the local community. With the small local population,City commercial centers are underutilized,and many are not well-maintained,resulting in negative visual impacts on the - community. Thus,this Initiative would not negatively impact the City's already over-supplied commercial land uses. Additionally,at least one possible developer of the Project has indicated a willingness to potentially augment City General Fund revenues through the execution of development agreement whereby the Project developer may provide a"per student fee'payment to the City if certain expedited development rights were obtained. Finally,the numerous job opportunities created by the Project can also stimulate and enhance the City's economy. G. The Project is Compatible With Other Surrounding Land Uses: The voters hereby find and determine that the Project is compatible with other land uses in the areas immediately adjacent to the Project Site due to the Project's location away from most residential development currently existing within the City,and due to the Project Site's proximity to Interstate 5 and easily accessible City roadways. The voters hereby further find and declare that the Project is compatible and consistent with the City's General Plan and Land Use Code,as amended by this Initiative,and that the Project is a proper use for the property subject to this Initiative. Section Six: General Plan Amendment The City of San Juan Capistrano General Plan(as amended through the date this Initiative is submitted to the voters or adopted by the City Council),[hereafter"City General Plan"]is hereby amended to read as described below. Inmost instances,the proposed amendments to the City General Plan are described with text that may refer to;where indicated, Exhibits. In other instances,text to-be inserted into existing provisions of the City General Plan is indicated in boldface type while text to be stricken is indicated in stfikeout. I. Land Use Element Amendments - & Figure LU-1,the Land Use Policy Map,set forth on page 16.of the Land Use Element of the City General Plan,is hereby amended as described below: • The Project Site,consisting of approximately 38 acres of land,located adjacent to,and east of,the intersection of Camino Capistrano and Junipero Serra Road in the -City is hereby redesignated as follows: (i) The property north of Junipero Serra Road,APN 649-361-03,is redesignated from"4.4 Office Research Park"to the new designation of"5.0 Public&Institutional"as depicted in Exhibits A and E. (ii) The property south of Junipero Serra Road,APN 649-011-25 and 649-011. 30,is redesignated from`Planned Community"to the new designation of"5.0 Public& - Institutional"as depicted in Exhibits A and E. b. Table LU-2,the Land Use Classification System,set forth on pages 17 and 18 of the Land Use Element of the City General Plan,is hereby amended as indicated by the boldface and ntdkeouts below: Table LU-2 Land Use Classification System Major land Dwelling Average Land Use Designation and Use Groupings Units Per Dwelling Summary Description Gross Acre Units Per Range or Acre or Maximum Average Floor Area Flow Ara - Ratio(a) IGtio(b) Open Space 0.20:1 0.0001:1 1.0 General Open Space-An individual use or combination of &Recreation the uses listed in other open space and recreation designations. -. Site-specific uses are determined during rcvim of development applications. to3M2197auoo1 29509a1.0/mM -3- 0 i Major Land Dwelling Average Land Use Designation and Use Groupings Units P. Dwelling Summary Description Gross Acre Units Per Range or Acre or Maximum Average Floor Area Floor Arca Ratio(a) Ratio(b) 0.10:1 0.005:1 1.1 Open Space Recreation-Outdo recreational facilities, including golfcourses,swimming schools,tennis clubs and equestrian clubs. 0.10:1 0.005:1 1.2 Neighborhood Park'-Small neighborhood parks serving residential areas in immediate vicinity. 0.05:1 0.01:1 1.3 Community Park-Major active recreation sites,suing a larger population and geographic arca. 0.20:1 0:05:1 1.4 Specialty Park-Unique or specialized forms ofrecreatiooal activity. 0.01:1 0.001:1 1.5 Regional Park-Active and passive recreational activities Serving a large population and geographic arca extending beyond the City. 0.01:1 0.0001:1 1.6 Natural Open Space-Natural open space land preserving highly visible open space areas and allowing equestriaMnking -- trai s and public utilities. 0.40:1 0.1:1 1.7 Recreation Commercial-Indoor recreational activities, including bowling,cinemas,gymnasiums and similar activities. Residential 0-1.0 1 2.0 Very Low Density-Detached single-family dwellings. Allows up to I dwelling units per gross acre. 1.1-2.0 2 2.1 Low Density-Detached single4anuly dwelling. Allows up to 2 dwelling units per gross acre. 2.1-3.5 3.3 22 Medium Low Density-Single-family dwelling. Allows up to 3.5 dwelling units per gross acre. 3.6-5.0 4-5 2.3 Medium Density-Single-famly dwelling;mobile home parks,duplexes,and rradti-family dwellings including, condominium;and townhomes. Allows up to 5 dwelling units Per grossacre. 5.1-8.0 7.5 2.4 Medium High Density-Single-family dwellings,moble home parks,duplexes,and multi-family dwellings including condominiums,and townhomes Allows up to 8 dwelling units per gross acre. 8.1-18.0 17 2.5 High Density-Single-family dwellings,mobile home parks, duplexes,and multi-family dwellings including condominiums, townhomes,and apartments. Allows up to 18 dwelling units per gross acme. 18.1-25.0 25 2.6 Affordable Family/Senior Housing-Affordable multi. family dwellings for families and seniors,including condominium;apamnents and cooperatives. Allows up to 25 dwelling units per gross acre. ' Table LU-2 ' Land Use Classification System Major Land Dwelling Avenge Land Use Designation and Use Groupings Units Per Dwelling Summary Description Gross Acre Units Per Range or Acre or Avenge Maximum Floor At. Floor Area Ratio(b) Ratios) Conun.ciil 0.25:1 0.20:1 3.0 Neighborhood Commercial-Retail,office,and servir oriented business activities serving a local community area and population. .50:1 0.30:1 3.1 Geaenl Commercial-Retail,once,and service- oriented business activities serving a community-wide arca and population o broad.mark". Industrial 0.40:1 0.30:1 4.O Industrial Park-Light industrial and manufacturing uses Allowable uses include wholesale businesses,light manufacturing and assembly,research and development, warehousing and storage,and distribution and sales, 295131.0147eel ]95U9.a1 anJNnl01 -rt- Major Land Dwelling Average Land Use Designation and Use Groupings Units Per Dwelling, Summary Description Gross Acre Units Per Range or Acte or Average Maximum Floor Arca Floor Area Ratio(b) Ratio(a) 0.40:1 0.30:1 4.1 Quasi-Industrial-Light industrial and manufacturing uses,including those allowed in the Industrial Park designations- ALSO allows variety of regiorul and sub- regional commercial activities,such as vehicle sales and large box retail 0.10:1 0.05:1 4.2 Agri-Business-Agricultural crop production ard sales, and animal breeding,boarding,raising and training. 0.40:1 0-30:1 4.3 Light Industrial-Light industrial and manufacturing usbs.Allowable uses include research&development light nunufaenuing and processing.offices,warehousing and storage,and high technology production. 0.40:1 0.25:1 4.4 OfficdReseanfi Park-Single-tenant and multi-term ofs cs,including legal.medical,funncial,sdrnioisoetive, R&D.corporate and general business. Public/ 0.40:1 0.25:1 5.0 Public&institutional-Public and private Ssrhools, Institutional churches,fire stations,community centers,utility substation,and offs complexes 0.30:1 0.25:1 5.1 Existing Public Schools-Existing public schools. 0-30:1 0.25:1 5.2 Potential Public School.-Future public schools. 0.40:1 0.40:1 S-3 Amused Care Facilities-Specialized Batt and housing tacRities for seniors and persons requiring special medical housing- Special ousingSpecial Varies varies Special Study-Areas tharhave unique feature; environmental conditions,andlordevelopment constraints requiring special regulations or stamards designed to address or preserve those conditions. varies Varies Specific PhwPredse Plan-Areas govemed by a specific plan or precise plan adopted prior to developmrnL Varies Varies Planned Community-Denotes tinge areas of land under single or common ownership for detailed planning and development er residential,con meneW.industrial, publiclmstitutional,recreation and open space uses. (a) Maximum allowable level ofdevelopment standard for individual parcels of land. (b) Assumed overall average level of development. Since the development which has occurred to date has not reached the maximum allowed level ofdcmity or intensity on every,parol of Wal,future development is expected to be less than the maximum on a city-wide basis- Therefore,an avenge level ofd<asitylmtenity is used when projecting: 1)tool future dwelling units/population for residential developmenq and 2)future square footage for non-residential development where floor area is used as a measurement of building intensity. C. Pages 27 and 28 of the Land Use Element of the City General Plan pertaining to the 5.0 Public&institutional Designation,is hereby'amended as indicated by the boldface and strikeouts below: Public/Institutional Designations - 5.0 Public&Institutional: The Public&Institutional designation provides for public and private schools,churches,fire stations, community centers,utility substations and office complexes. Other uses that are determined to be compatible with primary uses may shall also be allowed. The maximum intensity of _ development is a floor area ratio of 0.40:1 and the average intensity of development is a floor area ratio of 0.25:1. The Land Use Element identified approximately 186 acres for Public& Institutional land uses which include provisions for private schools (grades K-12). Future pscipsised amendments in the Land Use Rigment and I ,if ImLmn'laAWn 39509.01 ao)alla# -5- d. The approximately 186 acres for Public&Institutional land uses identified by the Land Use Element in Table LU-4,Development Capa�`ty,as dcscribed on pages 27 and 32 of the Land Use Element of the City General Plan shall be adjusted as necessary,and any and all other necessary,corresponding adjustments shall be made to Table LU-4,to reflect the changes made to the Land Use Element of the City General Plan as a result of this Initiative being adopted. C. Figure LU-3,Planned Communities map located on page 30 of the Land Use Element of the City General Plan is amended to delete the reference to the Pueblo Serra Planned Community. The land designated as the Pueblo Serra Planned Community is hereby redesignated as 5.0 Public&Institutional as set forth on Exhibit E. The precise location and the Initiative Proponents'brief explanation of the changes to Figure LU-3 are contained in Exhibit B. f. Table LU-3,Planned Communities:Allowable Uses Guideline,as set forth on page 31 of the Land Use Element of the City General Plan and as described on page 29 of the City General Plan is hereby amended as indicated by the shilinow below. Planned Communities San Juan Capistrano contains four areas designated as Planned Community(depicted in Figure LU-3). The purpose of the Planned Community designation is to allow for the utilization of innovative land planning and building design. The Planned Community designation allows for flexibility in the design of a development project which may not be available with other land use designations. Table LU-3 summarizes the designated land uses for each of the four Planned Communities and identifies the land use mix allowed for each Planned Community. The percentage mix of land uses for the planned communities serves as a guideline for developers, but may be modified with the approval of the City. Table LU-3 Planned Communities: Allowable Uses Guideline Planned Community Allowed Land Use Mix Guidelines Crystal Cathedral Ministries 80%Public Institutional(includes retreat Planned Community center)and 260%Assisted Care Facility(which may include a wellness center). Maximum Floor Area Ratio for Public Institutional will not be allowed unless the project offers exceptional benefits to the community. Oso Ranch Planned Community 40%Public Institutional,30%Affordable Family/Senior Housing and 30%Medium Density Residential aGGOSSOF5,uses such as hotel,food SOPAGGS,06. Whispering Hills Planned Community 100%Very Low Density Residential Forster Canyon Planned Community 28%Very Low Density Residential,22% Medium Low Density Residential,25% Medium Density Residential,2%High Density Residential,7%Open Space Recreation,7% General Open Space,7%Light Industrial and 2%Public Institutional 2. Circulation Element Amendments a. Figure C-2,Arterial Highway System,as set forth on page 18 of the Circulation _ Element of the City General Plan is amended to designate the streets shown as"CM Capistrano" (Camino Capistrano)and"J Serra"(Junipero Serra Road)as"School Hot Spot'Designations as depicted on Exhibit C. 1°1LOn1Y6°°°I 215139 01 a01/OIN2 -6 b- - "Hot Spot'Designations are described on pages 19 and 21 of the Circulation Element of the City General Plan. The explanation of"Hot Spot'Designations as set forth on - - pages 19 and 21 of the Circulation Element of the City General Plan is not amended by this Initiative but is included only for the purpose of prov';ding information that may be useful to explain the changes made to Figure C-2 by this Initiative. "Hot Spot"Designations As depicted in Figure C-2,within the Planning Area,there are special locations that experience unique congestion. Special"hot spot'designations are applied to these selected locations as follows: H: School Hot Spot—Locations where the normal operation of an arterial highway would be affected by the presence of a school. Ila Operations Hot Spot—Sections of roadway where closely spaced intersections or side friction caused by numerous driveways degrade the performance of the roadway compared to its theoretical carrying capacity. HI Spaced Constrained Hot Spot—Intersections or sections of roadway that cannot be improved to their full standard due to limited space(right-of-way,or other constraints). These hot spot designations.require certain analysis and/or imply certain exceptions to the standard V/C criteria. For example,space constrained hot spots(HI)can reach a V/C of 1.00(rather than a" threshold of 0.90)in recognition of the limitations involved in making physical improvements. School hot spots(H,)require that traffic impact studies address any special impacts at any affected location. 3. Noise Element Amendments a. Table N-2,Interior and Exterior Noise Standards,set forth on page 9 of the Noise Element of the City General Plan,is hereby amended as indicated by the boldface and strikeouts below: Table N-2 Interior and Exterior Noise Standards Land Use - Noise Standards' Exterior Interior Residential(all)-Single family,multi-family,duplex, 65 dB(A) 45 dB(A) mobile home - Residential-Transient lodging,hotels,motels,nursing 65 dB(A) 45 dB(A) homes,hospitals,assisted care facilities Private offices,churches;libraries,theaters,concert halls, 65 70 dB(A) 45 dB(A) meeting halls,schools - General commercial,retail,reception,restaurant 65 dB(A) 50 dB(A) Manufacturing,indusuaaP Parks,playgrounds 65 dB(A)' Golf courses,outdoor spectator sports 70 dB(A)3 -- 1 In Community Noise Level Equivalent(CNEL). Z Noise standards not applied to Industrial districts. a Outdoor environment limited to playground areas,picnic areas,and other areas of frequent human use. IOl]IOnr�6O001 r95U901 a9ib1N3 -7- b- Table N-3,Noise/Land Use Compatibility Matrix,set forth on page 10 of the Noise Element of the City General Plan,is hereby amended as indicated by the boldface and strikgeuts below: Table N-3 Noise/Land Use Compatibility Matrix Land Use Category Community Noise Equivalent Level CNEL,dB 55 60 65 70 75 80 Residential-Single Family,Multifamily, A I A B B C --- Duplex Residential-Mobile Homes A A B C C --- --- Transient Lodging-Motels,Hotels A A B B C C --- Schools,Uluaries,Churches,Hospitals, A A B EB EB —C --- Nursing Homes Auditoriums,Concert Halls, B B C C -- --- --- Amphitheaters,Meeting Halls Sports Arenas,Outdoor Spectator Sports, A A A B B --- -- Amusement Parks Playgrounds,Neighborhood Parks A A A B C --- --- Golf Courses,Riding Stables,Cemeteries A A A A I B TAA . Office and Professional Buildings A A A B B Commercial Retail,Banks,Restaurants, A A A A B Theaters Industrial,Manufacturing,Utilities, A A A A B Wholesale,Service Stations <-« Agriculture - A A A A A Source:Taken in part from Aircraft Noise Impact Planning Guidelines for Local Agencies, U.S.Department of Housing and Urban Development,TE/NA-472,November 1972. A= Normally Acceptable-Specified land use is satisfactory based on the assumption that any buildings involved are of normal conventional construction,without any special noise insulation requirements. B= Conditionally Acceptable-New construction or development should be undertaken only after a detailed analysis of the noise requirements is made and needed noise insulation features included in the design. Conventional construction,but with dosed windows and fresh air supply systems or air conditioning will normally suffice.. - C= Normally Unacceptable-New construction or development should generally be discouraged. If it does proceed,a detailed analysis of the noise reduction requirements must be made and needed noise insulation features included in the design. ---=Clearly Unacceptable-New construction or development should generally not be undertaken. C. To the extent permitted by law,the City shall promptly amend any other provisions of the Noise Element of the City General Plan necessary to reflect the changes made by this Initiative to Tables N-2 and N-3. d. The function and purpose of Tables N-2 and N-3 are explained on pages 8 through 11 of the Noise Element of the City General Plan. These explanations are not amended by this Initiative,but are included only for the purpose of providing information that may be useful to explain the changes made to Tables N-2 and N-3 by this Initiative. 39509.01 f0)glNl -g Noise Standards and Land Use Compatibility Guidelines To ensure that noise producers do not adversely affect sensitive receptors,the City will use land use compatibility standards when planning and making development decisions. Table N-2 summarizes City noise standards for various types of land uses. The standards represent the maximum acceptable noise level and are used to determine noise impacts. These noise standards are the basis for the development of land use compatibility guidelines, presented in Table N-3" If the noise level of a project falls within Zone A or Zone B,the project is considered compatible with the noise environment" Zone A implies that no mitigation will be needed. Zone B implies that minor mitigation measures may be required to meet the City's noise standards. All development project proponents will be required to demonstrate that the noise standards will be met prior to approval of projects. If the noise level of a project falls within Zone C,substantial noise mitigation will be necessary to meet the noise standards. Mitigation may involve construction of noise barriers and substantial building sound insulation. Projects in Zone C can be successfully mitigated; however,project proponents must demonstrate that the noise standards will be met prior to issuance of building permits. If noise levels fall outside of Zones A,B,and C,projects are- considered clearly incompatible with the noise environment and should not be approved. The Director.of Engineering and Building Services will act as the noise control coordinator. This delegation of responsibility will allow consistent and continued enforcement of the established noise standards. Noise Contours and Noise Impact Areas The noise environment for the community can be described with noise contours based on the major noise sources. Noise contours define areas of equal noise exposures. Future noise contours have been estimated with information about existing and projected land use development and transportation activity. Figure N-1 shows the projected noise contours for San Juan Capistrano and the noise impact areas. The noise contours will be used as a guide for land use and development decisions. Contours of 60 dB(A)or greater define noise impact areas. When noise sensitive land uses are proposed within these contours,an acoustical analysis must be prepare& For the project to be approved,the analysis must demonstrate that the project is designed to attenuate noise to meet the City's noise standards as defined in Table N-2. If the project is not designed to meet the noise standards,mitigation measures can be recommended in the analysis. If the analysis demonstrates that the noise standards can be met with implementation of the mitigation measures,the project can be approved with the mitigation measures required as conditions of project approval. Section Seven: Zoning Code Amendments - Title 9,Chapter 3,Zoning,of the City of San Juan Capistrano Municipal Code(as amended through the date this Initiative is submitted to the voters or adopted by the City Council)[hereafter"Zoning Code']is hereby amended to read as described below. In most instances,the proposed amendments to the City Zoning Code are described with text that may refer to,where indicated,Exhibits. In other instances,text to be inserted into existing provisions of the City Zoning Code is indicated in boldface type while text to be stricken is indicated in shikenut. 1. The Official Zoning Map,City of San Juan Capistrano,as described in Zoning Code section 9-3.102,is hereby amended as described below: • The Project Site,consisting of approximately 38 acres of land,located adjacent to, and east of,the intersection of Camino Capistrano and Junipero Serra Road in the City is hereby re-zoned as follows: . (i) The property north of Junipero Serra Road,APN 649-361-03,is ie-zoned from "Office Commercial(CO)"to the new zoning classification of`Public&Institutional(IP)"as depicted in Exhibits D and F. 10] 60001 195U139.019.01 a07/OIM -9- (ii) The property south of Jumpero Serra Road,APN 649-011-25 and 649-011-30,is re-zoned from"Planned Community(PC)"to the new^ening classification of"Public& Institutional(IP)"as depicted in Exhibits D and F. 2. For the property south of Jumpero Sena Road comprised of APN 649-011-25 and 649-011-30,and previously zoned as Planned Community(PC)prior to the adoption of this Initiative,the Comprehensive Development Plan(CDP),Pueblo Serra CDP 89-1 prepared for all or part of the property,and as amended,is hereby repealed and shall be of no further force and effect. 3. Section 9-3.418 of the Zoning Code,which sets forth the purpose and intent of the - -Public and Institutional(IP)zoning classification,is hereby amended to read as indicated by the boldface and arikeeuts below: Sec.9-3.418. Public and Institutional(IP)District. (a) Purpose and intent. The purpose and intent of the Public and Institutional(IP)District is to: (1) Accommodate the wide range of major public and,quasi- public,and private institutional and auxiliary uses established in response to the health;safety,educational,and cultural needs of the City;and (2) Encourage the assembly of specific public,quasi-public, private,and related facilities into efficient,functionally- compatible,and attractivelydesigned administrative centers, educational institutions,and similar complexes,located and maintained in conformance with the General Plan. (b) Principal uses and structures permitted. The following . principal uses and structures shall be permitted in the Public and Institutional(IP)District: (I) Educational uses,public and private,including colleges, universities,elementary and high schools,business,vocational, and professional schools including art,barber,beauty,dance, drama,music,and swimming schools,child day care centers, preschools,and nursery schools; (2) Religion-related uses,including churches,temples, synagogues,convents,monasteries,religious retreats,and other places of religious worship; (3) Cultural and exhibition centers,public and private,including auditoriums,theaters,and convention halls;and (4) Public and semipublic buildings,services,and facilities, including museums,libraries,governmentbuildings,parks,public utility offices and exchanges,bus,taxicab,and railroad stations, police stations,and fire stations; (5) Bingo parlors that are conducted in accordance with Title 5; Chapter 4,conducted by nonprofit groups operated exclusively for religious,charitable,scientific,literary,or educational purposes. (c) Accessory uses and structures permitted. The following accessory uses and structures shall be permitted in the Public and Institutional(IP)District: (1) Retail and service uses which are incidental to and integrated with a permitted principal use,including and generally limited to: _ (i).Banks,savings and loan institutions,and credit unions; 39511901,0'INIro3 -10- (ii) Barber and beauty shops; (Ci) Bookstores; (iv) Concession stands,such as news and shoeshine; (v) Drugstores; (vi) Florists; (vii) Gift and souvenir shops; (viii) Offices of nonprofit and civic organizations;and (ix) Restaurants and other eating establishments,except drive-in and drive-thru types; (2) Caretaker residences as set forth in Section 9-3.612 of Article 6 of this chapter,and - (3) Public and private recreational facilities provided that such facilities are incidental to a permitted principal or conditional use and that they conform to the requirements of Sections 9-3.607 and 9-3.614 of Article 6 of this chapter. The outdoor night lighting of such recreational uses shall not be permitted unless a conditional use permit is approved by the City. (4) Public and private educational,recreational,cultural,and maintenance facilities associated with the development of a public or private school. (d) Conditional uses and structures permitted. The following uses and structures may be permitted in the Public and Institutional(IP) District subject to the approval of a conditional use permit: (1)Clubs and lodges,private,nonprofit; (2)Mortuaries;and- (3)Health-related institutional uses,including convalescent and nursing homes,homes for the aged,children's homes,sanitariums, and hospitals. (e)Development standards.The yard(setback)requirements, minimum lot sizes,minimum street frontage,and related standards for the Public and Institutional(IP)District shall be as set forth in Section 9-3.424 of this article. (f)Development plans and review - (1)Projects proposed within the Public and Institutional(IP) District shall be subject to development review as set forth in Section 9-2305 of Article 3 of Chapter 2 of this title. (2)Plans required for the review of projects within the Public and Institutional(IP)District shall include: (i)Site,plot,or development plans; - (ii)Grading plans; (iii)Landscaping plans; (iv)Building elevations;and - WTT0091 3951139.019.01 a0lbiroT -11- (v)Architectural detail plans,such as for trash areas,private street signs,and similar items. (g) Supplementary district regulations. For sign,parking,fence, swimming pool,and similar regulations for the Public and Institutional(IP)District,see article 6 of this Chapter. Section Eight: Nonconforming Uses In the event that this Initiative is approved by the voters or adopted by the City Council, any and all uses for the 9 acre parcel located north of Junipero Serra Road and east of Camino Capistrano,APN 649-361-03,previously authorized by issuance of a building permit under the General Plan designation,"4.4 Office Research Park,"and zoning classification"Office Commercial(CO),"shall be vested and may continue as a non-conforming use or otherwise until such time as the Project is fully approved by the City and such buildings are needed for school uses. Section Nine: Jmplementation and Enabling Legislation - A. Enabling Legislation: To the extent permitted by law,the City is hereby authorized and directed to amend anyelements or provisions of the City General Plan and Land Use Code,and all other City Ordinances,policies,and implementation programs or policies as soon as possible in order to implement this Initiative and to ensure consistency between this Initiative and other elements of the City's General Plan and City Land Use Code. This enabling legislation shall be interpreted broadly pursuant to Pala Band.of.Nrssion Indians v.Board of Supervisors(1997)54 Cal.App.4m 565 to promote the requirement that a general plan constitute an integrated and consistent document. B. City Cooperation: To the extent permitted by law,the people of the City hereby _ reaffirm and state their desire that,upon adoption of this Initiative,the City endeavor to ensure that the Project is fully approved by the City and fully operational as soon as practicable. Section Ten: Effective Date This Initiative shall go into effect ten days after the date on which the election results are declared by the City Council,or immediately upon adoption of the Initiative by the City Council. Upon the effective date of this Initiative,the General Plan amendments contained within the Initiative are hereby inserted into the City General Plan as amendments thereof-,provided, however,that if the four amendments permitted by state law for any given calendar year have already been utilized prior to the effective date of this Initiative,the General Plan amendments shall be inserted into the City General Plan on January 1 of the following year. Section Eleven: Interim Amendments The City General Plan in effect at the time the Notice of Intention to propose this , Initiative("Notice of Intention)was submitted to the City Clerk,and the General Plan as amended by this Initiative comprise an integrated,internally consistent and compatible statement of policies for the City. In order to insure that the City General Plan remains an integrated, internally consistent and compatible statement of policiesforthe City,the General Plan provisions adopted by this Initiative shall prevail over any conflicting revisions to the City General Plan adopted between the date of the Notice of Intention and the date the amendments adopted by this Initiative were inserted into the City General Plan. To this end,any conflicting revisions to the City General Plan adopted between the date of the Notice of Intention and the date the amendments adopted by this Initiative were inserted into the General Plan shall be null and void in their entirety and without any legal effect whatsoever. Section Twelve: Construction To the maximum extent authorized by law,this Initiative shall be interpreted in a manner consistent with the tight of initiative reserved to the people by the California Constitution" - Without limiting the foregoing,nothing in this Initiative is intended to diminish or otherwise alter applicable requirements of state and federal law. 29513 M.07 01 29509 Ol a0]PoIPoi -12- Section Thirteen: Future Amendments Pursuant to Article II,section 10(c)of the California Constitution,the provisions contained in this Initiative may be amended by the City Council only to the extent such amendments further the intent and objectives set forth in this Initiative. All other amendments or proposed repeals of the provisions contained in this Initiative shall only become effective when approved by the voters. Section Fourteen: Severability If any portion of the Initiative is declared invalid by a court,that invalidity shall not affect other provisions or application of the Initiative which can be given effect without the invalid provision,and to this end the provisions of this Initiative are severable. The voters of the City hereby declare that they would have adopted this Initiative and each portion regardless of the fact that an invalid portion or portions may have been present in the Initiative. tmaouvamos xssrn.or,o�ro�roi -13- r 11, j cT+ gasp h 11A�lAIk �3v. �`�.d 110111/uu • -AL � '1 1• I E � r Y MITIN \`�`6r _ •��� `T �.. \x yy� i z r� fit €', y , #yr WE ca Exhibit B Land Use Element Crystal Cathedral Gity Boundary Ministries Planned ' Community O Sphere of Influence r VM° :`i{ �• . Sourrc Cotmn/Bcland/Aaodala,fx Proponents'Explanation:The Pueblo Sara Planned " a ♦` Community is deleted. This map is revised to show Hat' the land use designations depicted in Exhibit E. tF - Pueblo Serra -' Oso Ranch Planned •�,\ Planned Community Community 1 � v s Whispering Hills % Planned Community p. S Cm W Ano \ ,3 \ eForster Canyon " /'•�'�., = - Planned - �"'�••-�• sar,.hal4. Community i taw CMmml. �• I SAN JUAN CAPISTRANO• 3 g a 00'1 e Figure LII-3 ® Planned Communities a V? 1 hnk December 14, 1999 30 San Juan Capistrano Generic I - Exhibit C Circulation Element Primary(4 lanes divided) HOT SPOT DESIGNATIONS Secondary 14 lanes undivided) Hs Sctw l \ - - H Traft Operation Hs \\\ Commuter(2 lanes) HI Limited Space Source: Austin-Tcun Anociaw,Inc, (August 1999) I d \\ Proponents'Explanation:This map is revised to add"School Hot Spot"designations to"J Sena" (Junipero Serra Road)and"CM Ca- . �J Ha pistrano"(Camino Capistrano). \ \ . I Ha � 0001N If Hs / ! •�° Ho. Hs L s " I Hs sT _ B� SAN IIAN CAPISTRANO ADOIlso; N Figure C-2 ® Arterial Highway System 0 112 1 Milc December 14, 1999 18 San Juan Capistrano General Plan Ad R&MIKIMIUMM �y IN 47 Ijo � '�� f i MILMN • Exhibit D.1 • CITY OF SAN JUAN CAPISTRANO OFFICIAL ZONING MAP s tr Proponents'Explanation:The property north of Junipem Sura,AM - 649-361-03, is re-zoned from"Office Commercial(CO)"to die new 'n zoning Classification of"Public&Institutional(IP)"as depicted in $os - h ^ '4r Exhibit F. The parcel on which the Kaiser facility is located,APN yR '� 649-361-02,is not affected by this Initiative and will remain zoned as Office Commercial(CO). ^ — x ;NA �:. Proponents'Explanation:Theproperty south ofJunipero Serra,APN 649-011-25 and 649-611-30, is re-zoned from"Planed Community GM (PC)"to the new zoning classification of"Public&Institutional(IP)" as depicted in Exhibit F. 6 - )I Propos erlts'Explanation:This Legend is R= taken from the City of San JEIan Capistrano ficial Zoning Map and is reproduced hue at larger scale. LEGEND: ' — x BASE DISTRICTS: ENVIRONMENTAL MANAGEMENT DISTRICTS: N !c 4 _ t _ A T Aa MINIMAL AOMGOLTIMLL DEIIOOATED AI MAP OVERLY: iT N IYAUFANN -a FL LARK ESTATE IF-1 T1000NAT It SAM ESTATE "d AI (Malt Fact FEd FLOODLIT FMNOE PC .d. RM OAMFY NOPE Mn MQ14LE FIMNT _ POP YOIaMOME NAA( �•' FII PLANNED A[IMIYTIAL DEVELOPMENT PC PLANNED COMMUNITY ' CENONATE0 M NOMI TILT: T_ IT TOMMT COYNENCIAL Nx NntrL.WNt N ten"A.rxuNm umONPlyt CO Oi{ICE COMMRCIAL .'m MMNI x"mI..n w4 x.ux GN NEIgn0M000 COYYGc1AL nxgxun Nn n.t Mw.n..mnnr CO aEMRAL COMMERCIAL N.IRtN WxrYPx NUFA tNIxtl.t lx .nRNx CY COMYlAOLL YMMACIYRMO ..".e.,wn n nxximx MO C sim INOCtrout '• A OF MVIiML EARN NO NRLIIDE YMNtOIVtNT 11-13011 N NOME NAMAOEYINT II-3.(011 IP IVnK i IMnTNtIONAI ER PMYATT REOUTMN 0 - OtlION OANOANDE p-3mil OR aPM(PACE RECREATION MP NIITOAM MUMYATNN M-(•IMI m 01 01"SPACE MtlMVAtMN Ie 'Com,CORRMOI M-0.Itll E,r IF MICIS[FLAN MOTE:PFIMNLE FL000 PlWN Y OIOxTN MMMEY(Nt 111 IMV YAAkR 0 MINFORMATION$a aE .-,�nAYNe1 KYIlaYMi - RFFfflFYCEO FROM THE pl(N�=�1m�A9'�6f;-IQE7T�f 1 F.I-II.M.MAK.. • Exhibit E AMENDMENT TO CITY GENERAL PLAN LAND USE POLICY MAP Proponents'Explanation:The property nor' Junipero Serra,APN 649-361-03,is redesig,—ed from"4.4 Office Research Park"to the new Proponents'Explanation:The property south of designation of"5.0 Public&Institutional." Junipero Serra,APN 649-011-25 and 649-011-30, - is redesignated from"Planned Community"to the new designation of"5.0 Public&Institutional." R en y or: e •.•c>.; 920 Cd^d coc Pa .••�:I M-. � f�9y rC V� w -:--L•Z.I mt � es um� p v �rrep�d Road •-cr•s a I 7 N C4 7�N R°ad n 4� I Oc,O y� �El is 0 ✓0 m d ° o l to dp dd r c m \ -F. C. La.a. ' NOT TO SCALE LEGEND: NEW CITY GENERAL PLAN LAND USE DESIGNATIONS ®PUBLIC & INSTITUTIONAL iExhibit F • AMENDMENT TO CITY OFFICIAL ZONING MAP Proponents'Explanation:The property north of Jumpero Serra,APN 649-361-03,is fe-zoned from"Office Commercial(CO)"to the new Proponents'Explanation:The property south of zoning classification of"Public&Institutional Junipero Serra,APN 649-011-25 and 649-011-30, (IP)." is re-zoned from"Planned Community(PC)"to the new zoning classification of"Public& - Institutional(IP)." Pt 9 GteS.. -icl: 9 --A ds o D Atre�;d Road :'mil Z 7, it Y ten 2d � w` par ...tl •� �O o -y_ a ASO � e pe;• path -P v D .T. yo d MA hi \ v ° C. la:q O O wQ \\e Bon' NOT TO SCALE LEGEND: NEW CITY ZONING MAP DESIGNATIONS PUBLIC & INSTITUTIONAL WAS ATERSON AND Ass®&TEs 23988 SKYLINE DRIVE o MISSION VIEJO,CALIFORNIA 92692 PHONE:(949)768-8815 o FAX:(949)768-8816 October 1,2002 Ms.Diane Bathgate,Mayor City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SUBJECT: Protection of Native American Ancestral Remains Dear Mayor Bathgate: On behalf of my client, Pueblo Serra, LLC, owner of the 29.2-acre site at Camino Capistrano and Junipero Serra Road, I am hereby requesting City Council approval of a proposal to import 27K cubic yards of earth onto the site for use ultimately to provide increased cover over the Native American ancestral remains that exist on the site. As you know, out of respect for the cultural significance of a portion of the site, the proponents of the JSerra High School project have committed to preclude any school buildings within this identified "sensitive area." Additionally, to enhance the security of the Native American ancestors and the associated artifacts, JSerra has proposed to provide additional earthen cover for this area. The material will initially be located adjacent to the "sensitive area" while the necessary technical studies and environmental reviews for final placement of the soil are completed.. Only upon completion of those steps will this material be placed on the "sensitive area." We have been in close contact with David Belardes, the state-designated Most Likely Descendant for this site, and are coordinating all activities and plans with him. Roger Mason of The Chambers Group is also involved. In order to accomplish this, we have initiated discussions with your staff regarding the engineering and permitting requirements for this work. Technical investigations and engineering plans are underway. We have been advised that the "stockpiling" of earth in advance of the completion of a project's City review process requires authorization by the City Council. The purpose of this letter is to request that authorization. We will be available at your Council meeting to discuss this proposal. Sincerely, W4YNE PETERSON AND ASSOCIATES (Wa3'n P terson ATTACHMENT 3 Page 1 of 1 Dawn Schanderl From: Meg Monahan Sent: Thursday, January 23, 2003 2:51 PM To: Tom Tomlinson Cc: Dawn Schanderl Subject: Jserra agreement-exhibit A Importance: High Hi Tom, Regarding: "Declaration of Covenants and Implementation Agreement by and Between City of SJC & Pueblo Serra, LLC regarding the Jserra Education Initiative." Dawn was just following up on an agreement we sent to the recorder last October and never received back. The recorder says they don't have it. We have an extra original (there were three and I had sent two for recording). The agreement refers to Exhibit A, but there is no Exhibit A with the agreement. I check the agenda report that had gone to council to get the agreement considered, but there was no exhibit included in that agreement either. cannot record this document without the exhibit. Could you track that down? Thank you, Meg for Jserra 1/23/2003 • deft , 32400 PASEO ADELANTO le[111011fi1 SAN JUAN CAPISTRANO, CA 92675 [ LBI[e 1961 MEMBERS OF THE CITY COUNCIL (949) 493-1171 1776 DIANELBATHGATE (949)493-1053 (FAX) JOHN S.GELFF wiviv sonjuancapistrano.org I MATT HART i JOESOTO DAVIDM DAVID M.SWERDLIN CITY MANAGER GEORGESCARBOROUGH February 10, 2003 Clerk-Recorder's Office County of Orange P.O. Box 238 Santa Ana, California 92701 U- Re: DECLARATION OF COQt // EEMENT BY AND BETWEEN CITY O LO SERRA, LLC REGARDING THE The noted document is enclos When placed of record, pleas, Thank you for your assistanc.. Very truly yours 4gaaret R. Monahan lerk (949) 443-6308 cc: T mas Tomlinson, Planning Director t/Oawn Schanderl, Deputy City Clerk m-58 USE San Juan Capistrano: Preserving the Past to Enhance the Future Recording Requested by And When Recorded Return to: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675M Attn: City Clerk [Exempt From Recording Fee Per Gov. Code §6103] DECLARATION OF COVENANTS AND IMPLEMENTATION AGREEMENT BY AND BETWEEN CITY OF SAN JUAN CAPISTRANO AND PUEBLO SERRA,LLC REGARDING THE JSERRA EDUCATION INITIATIVE (JSerra High School) This Declaration of Covenants and Implementation Agreement (hereinafter "Agreement") is entered into effective as of October 15, 2002, (hereinafter the "Effective Date") by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter"City"), and Pueblo Serra LLC, a California Limited Liability Company (hereinafter "Declarant" or "Pueblo Serra") to implement the "JSerra Education Initiative." Declarant hereby covenants for its heirs and successors: RECITALS A. On or about July 25, citizens of San Juan Capistrano commenced circulation of the "JSerra Education Initiative" ("Initiative"). On or about September 11, 2002, the Orange County Registrar of Voters certified that the Initiative contained valid signatures of City residents constituting more than 15% of the voters of the City according to the last report of City registration. Therefore, pursuant to the Elections Code, the Initiative was required to either be promptly adopted by the City, or placed before the voters at an advanced special election. B. Pueblo Serra owns in fee simple title that approximately 9 acres of real property and improvements adjacent to, and east of, Camino Capistrano and Junipero Serra Road that is 1032/021877-0001 325087.01C.10/08/02 subject to the Initiative, generally described as APN 649-361-03, and also currently has a vested leasehold interest in that approximately 29 acres generally described as APNs 649-011-25, and 649-011-30, which are also subject to the Initiative. Pueblo Serra therefore has a property interest in all of the property subject to the Initiative (collectively, "Property"). The Property is further described as set forth in the legal description attached hereto as Exhibit "A." C. On September 17, 2002, in accordance with the Elections Code, the City Council requested that a report be prepared (the "report") to ascertain the effects of the Initiative on the City's General Plan and Zoning Code, and on other matters. D. On October 15, 2002, the City Council received the report to determine whether, in accordance with the Elections Code, to either adopt the Initiative, or to place it before City voters at a special election. Thereafter, the City Council voted to adopt the Initiative. Also on this date, City and Pueblo Serra executed this Agreement. E. The City and Pueblo Serra hereby express their mutual understanding and intention that this Agreement will serve the public interest and general welfare of the City. By adopting the Initiative, the City recognizes that Pueblo Serra may use as a principal permitted use (i.e., as a matter of right) the structures located, or to be located, on APN 649-361-03 for private school uses ("North Campus Facilities"). At the same time, Pueblo Serra recognizes the importance of ensuring, through the execution of this Agreement, that it provide various public benefits to the City to offset the demand on public services it will generate as a City property owner. Executing this Agreement concurrently with the adoption of the Initiative thereby ensures that the expectations of the parties with respect to the future development of Property are memorialized and also strengthens the planning process. F. By this Agreement, City and Pueblo Serra intend that the Property be developed as a private, Catholic high school ("School"), grades 9 through 12, with enrollment of up to 2,000 students. Pursuant to the legal effect of the Initiative, the property north of Junipero Serra, APN 649-361-03 (defined above and hereafter as "North Campus Facilities"), will utilize the existing two structures, and a third structure that has already been approved and permitted by the City for classroom, support, and administrative facilities, as provided in the Initiative and this Agreement and as intended by Pueblo Serra. Subject to further environmental review, the property south of Junipero Serra, APN 649-011-25 and 649-011-30 ("South Campus Facilities"), may be developed with sport, aquatic, recreational facilities, maintenance buildings, classrooms a performing arts center, and a chapel. The statements of legislative intent, and the legislative findings and purpose as contained in the Initiative, are hereby incorporated into this Agreement by reference. G. Article II, section 11 of the California Constitution reserves unto the people the power of Initiative. In furtherance of this power, the people of the City of San Juan Capistrano have stated their intent that this Project be approved, developed, and operational in an expeditious manner, and that the City fully cooperate with the Project applicant to ensure that the Project is fully developed and operational in an expeditious manner. Therefore, in accordance with Article II, section 11 of the California Constitution and the people's constitutionally- reserved power of initiative, it is the intent of the City and Pueblo Serra to enter into this Agreement. 1032/021877-0001 325087.OIC a10/08/02 -2- H. The City Council of the City of San Juan (hereinafter "City Council") has found that this Agreement is in the best public interest of the City and its residents. The Agreement provides a mechanism by which the City can obtain valuable public revenues to offset costs for City services such as police, fire, and recreational services, while at the same time ensures the prompt processing of applications for the development and operation of a Catholic high school, whose mission furthers the historical traditions of the City. The City and Pueblo Serra understand and agree that further City actions undertaken to approve aspects of the School not covered by this Agreement will require further City actions, as well as compliance with other applicable regional, state, and federal laws. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows: 1. IMPLEMENTATION GUIDELINES FOR THE PROPERTY. 1.1 Development and Use of the North and South Campus Facilities. The development expectations and use of the North and South Campus Facilities shall be governed by the provisions below: 1.2 Sequence of Entitlements and Entitlement Applications. (A) The North Campus Facilities: Consistent with the legal effect and intent of the Initiative, once the Initiative becomes effective, the North Campus Facilities may be immediately used as a private Catholic high school as a principal permitted use (i.e., as a matter of right) with no further zoning, design review, or development review approvals required by the City with the expectation that the School will be opened and operational on or before September 1, 2003. Enrollment for the School shall not exceed 2,000 students per year, inclusive of all class levels. (B) The South Campus Facilities: Development of the South Campus Facilities to support the School (e.g. athletic fields, gymnasium, performing arts center with loft, aquatic center, tennis/basketball courts, parking lots, lighting, etc.), will be subject to the Initiative and the City's Development review process and will be reviewed and approved pursuant to the City's Development review process. It is understood and anticipated that the South Campus facilities may include not more than 150,000 square feet of new buildings, including a gymnasium, a performing arts center, a chapel, a competition swimming/diving center, classrooms, and support/maintenance/energy facilities. A permanent football stadium is not part of the plan. Baseball, softball, football, soccer, track, and tennis and basketball courts are also anticipated. It is also anticipated that a pedestrian bridge may be built across Junipero Sena linking the North and South Campus facilities. Further environmental review of the South Campus Facilities will be required. 1.3 Time of the Essence. The parties expressly acknowledge that time is of the essence of this Agreement. The City shall use its best efforts to expedite the planning and 1032/021877A001 325087.01C x10/08/02 -3- permitting process to facilitate the installation of the gymnasium and field sport facilities on the South Campus as soon as possible. 2. PUBLIC BENEFITS. The parties acknowledge and agree that development of the School will result in demands on public services and further acknowledge and agree that this Agreement confers unique benefits to Pueblo Serra which can be balanced by the provision of public benefits to the City. Accordingly, the parties intend by this Agreement to provide additional consideration to the public. 2.1 Per Student Mitigation Fee. In accordance with the above recitals, Pueblo Serra shall make the following payments to the City: (A) For the school year commencing September 1, 2003 through August 31, 2004, Pueblo Serra shall pay the City a single fee of$172,000. (B) For the school years commencing September 1, 2004 through August 31, 2005 and each school year thereafter, Pueblo Sena shall pay the City an annual fee equal to $200 per student enrolled in the regular full time curriculum at JSerra as of October 1, but in any event not less than $200,000 per school year. As an example, if during the September 1, 2004 through September 1, 2005 school year, Pueblo Serra has a student enrollment of 500 students, Pueblo Serra shall pay the City $200,000 to cover the annual payment for that school year($200 x 500 = $100,000 < $200,000). If, however, during this same school year, Pueblo Serra has a student enrollment of 2,000 students, Pueblo Serra shall pay the City$400,000 for that school year ($200 x 2,000 =$400,000> $200,000). (C) In addition to the above provisions, commencing the third school year the Per Student Mitigation Fee (initially at $200 per student) to be paid by Pueblo Serra shall be increased two percent (2%) per year(on original base amount). (D) The parties expressly acknowledge that, at this point in time, it is unclear whether the Property will be deemed by the applicable authority to be exempt from the payment of real property taxes. To this end, notwithstanding any of the provisions in Sections 2.1(A), (B), and (C) above, if the Property is not deemed to be tax exempt in its entirety, Pueblo Serra shall continue to be obligated to pay the annual Per Student Mitigation Fee set forth above, but the amount due shall be reduced by an amount equal to the sum of(1) the gross real property taxes and assessments attributable to the Property that is allocated to (a) the City, (b) City- controlled special districts, and (c) other City-controlled taxing entities, and (2) the gross property tax increment attributable to the Property allocated to the Community Redevelopment Agency of the City of San Juan Capistrano pursuant to Health and Safety Code Section 33670(b) or successor statute. (collectively, the "City/Agency Property Tax Allocation"). The City/Agency Property Tax Allocation shall not include the diversion of all or a portion of City or Agency property tax receipts to the Educational Revenue Augmentation Fund, but shall include all other tax amounts which would otherwise be received by the City or Agency but for the other acts of the County of Orange, State of California, or federal government. If the Per Student Mitigation Fee is reduced by the City/Agency Property Tax Allocation such that an annual Per 1032/021877-0001 ,t 325087.01C a10/08102 —4— Student Mitigation Fee is less than zero, Pueblo Serra shall not be obligated to make any Per Student Mitigation Fee payment for that school year and the amount less than zero shall be carried over to the following year and added to the City/Agency Property Tax Allocation applicable to that subsequent year. The parties acknowledge that the City/Agency Property Tax Allocation is determined on the basis of a July 1 to June 30 fiscal year. The City/Agency Property Tax Allocation for a particular fiscal year shall correspond to the school year falling principally within the fiscal year (e.g., the City/Agency Property Tax Allocation for the period July 1, 2003 to June 30, 2004, shall apply to the school year falling September 1, 2003 to August 31,2004). (E) Notwithstanding the provisions of Sections 2.1(A), (B), and (C), the Per Student Mitigation Fee shall never exceed, per fiscal year, that amount equal to the City/Agency Property Tax Allocation the City, City-controlled special districts, other City-controlled taxing entities, and the Community Redevelopment Agency of the City of San Juan Capistrano would have received if the Property was not deemed to be tax exempt. 2.2 Timing of Payment: Pueblo Serra shall be obligated to make the Per Student Mitigation Fee for the school year falling principally within the fiscal year within 60 days after the City has determined the City/Agency Property Tax Allocation for the applicable fiscal year and notified Pueblo Serra of the amount due, if applicable. 2.3 Public Use of Project Facilities. As part of the City approval of the South Campus facilities, Pueblo Serra will enter into an agreement with the City for the joint use of designated campus facilities by City organizations. The "Joint Facilities Use Agreement' entered into on April 22, 1996 between the City and Capistrano Unified School District will serve as a potential model of the use agreement to be entered into between the City and Pueblo Serra. 2.4 Financial Aid for, and Outreach to, City Children: Pueblo Serra will designate a portion of its financial aid program exclusively for the children of City residents. A committee made up of local individuals (Council member, cultural commission member, Mission pastor, etc.) will distribute awards. Pueblo Serra will also adopt a proactive outreach program to attract students from the City focusing particularly on the economically distressed areas of the City. 2.5 Commitment to On-site Private Security: Pueblo Sena will provide private, 24-hour security at the campus utilizing a combination of electronic monitoring systems and patrols. 2.6 Traffic Mitigation: Pueblo Serra will commit to provide mitigation for the traffic impacts attributable to its project. Applicable traffic mitigation required will be determined when the South Campus facilities are being reviewed and approved by the City. 3. DEFAULT PROVISIONS. The City and Pueblo Serra acknowledge and agree that further environmental and discretionary review of the South Campus Facilities will have to be undertaken prior to the use of the South Campus Facilities for the desired purpose. The parties also acknowledge that time is 1032/021877-0001 325087.01C.10/08/02 -5- of the essence. The purpose of this Default section is to therefore provide further assurances to the parties. 3.1 Interest Penalty for Late Payments by Pueblo Serra: If Pueblo Serra fails to make a payment to the City (if required when the credit for property tax accrued to the City is applied) within four weeks of the due date, a penalty at the rate of the Prime Rate plus 3% per annum shall be applied to the payment. For purposes of this section, the applicable Prime Rate published in the Wall Street Journal on the 151h day of the prior month (or the preceding business day if the 15`h is not a business day). 3.2 City Obligation to Process Applications in Accordance with Timing Specification: In order to strengthen the planning process and to ensure that the expectations of the parties are adhered to, the South Campus Facilities shall be approved or disapproved by the City no later than December 31, 2003, subject to the exceptions set forth below. If the City does not approve the necessary entitlements for the South Campus Facilities by December 31, 2003, Pueblo Serra shall have no further obligation to provide the City with any of the Public Benefits provided in Section 2, with the exception of section 2.6, and Pueblo Serra's obligations under Section 2, with the exception of section 2.6, shall immediately cease and be of no further force and effect. This time period may be extended by a written amendment to this Agreement, signed by the parties on or before December 31, 2003. Pueblo Serra shall act in accordance with its obligations of good faith and fair dealing when granting extensions to the City under this provision as may be reasonably required. Notwithstanding the above, the December 31, 2003 time specification shall not apply in the following circumstances: (A) Third Party Litigation: If third party litigation forestalls the City's ability to timely approve Pueblo Serra's entitlement applications for the South Campus Facilities, the December 31, 2003 time specification shall be extended by the parties as reasonably required. (B) Failure of Pueblo Serra to Submit Complete Application Materials: If Pueblo Serra fails to submit an adequate and timely application to the City in order to allow the City to act on the entitlements within the December 31, 2003 time specification, the time specification shall be extended by the parties as reasonably required. 4. GENERAL PROVISIONS. 4.1 Amendments: City and Pueblo Sena agree that this Agreement, and any provision of this Agreement, may be amended in a signed writing executed by both parties. 4.2 Reconciliation of Per Student Mitigation Fee Payments: The parties hereby expressly acknowledge and agree that the Per Student Mitigation Fee Payments may need to be reconciled on a yearly basis to ensure that the parties intentions as expressed in sections 2.1(A), (B), (C), (D) and (E) are adhered to. To this end, the parties agree to create a mechanism by which to ensure that no overpayments or underpayments of the Per Student Mitigation Fee Payments are made. It is the parties' mutual intent that this Agreement ensure fundamental fairness to both parties and to ensure that neither party obtains a financial windfall. 4.3 Waiver of Estoppel: Notwithstanding any legal authorities to the contrary concerning the doctrines of waiver and estoppel as applied to public entities and the actions or 1032/021877-0001 325087.OIC a10/08/02 -6- inactions of public agencies or public agency officers and officials, the City acknowledges and agrees that Pueblo Serra and its successors and assigns to all or any interest in the Property is relying upon the contents of this Agreement and the City's execution of this Agreement and the recordation hereof, and that in consideration of such material reliance, City shall now and forever be estopped from denying the validity of this Agreement and City knowingly and expressly waives any such claim or defense. 4.4 Successors and Assigns: The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. To the extent of Declarant's (and its successors' and assigns') interest in the Property, the covenants of Declarant set forth in this Agreement shall be covenants running with the land and enforceable to the full extent permitted by applicable law. 4.5 Agreement Contingent Upon City Adoption of Initiative: The parties hereby expressly declare their mutual intent and understanding that this Agreement, in its entirety, is made contingent upon the City Council's adoption of the JSerra Education Initiative at its October 15, 2002 Council meeting. If the City Council does not adopt the JSerra Education Initiative on October 15, 2002, this Agreement, and every provision contained herein, shall be null and void, and of no further force and effect. [end— signature page follows] 1032/021877-0001 325087.01C a10108/02 —7— IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. City: CITY OF SAN JUAN CAPISTRANO By auz Mayor, City of San Juanapistrano ATTEST: B � ✓ V l.� Y onahan Urk APPROVED AS TO FORM: By John Sh City Attorney Pueblo Serr BL E LLC Y Printed Name: l� By: Printed Name: Its: [end of signatures] 1032/021877-0001 325087.01C 810/08/02 -8- STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE On cc;/b64-,- / 2002, before me,�TA mCx5 Lp l2i ;IY 1'u personally appeared TivvA 15qQ,Qu�I r, personally known to me (or proved to m6 on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that \he executed the same in 4*1'authorized capacity, and that by hesirs signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. JAMES LOREN OOW.01371618 MMIPUKX ORAHEcou�"UP N"NTY Public ` Comm Ex.AUG.24,2006 [SEAL] 1032/021877-0001 325087.OIC.10/08/02 -9- PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On October 15, 2002 before me, Margaret R. Monahan, City Clerk, personally appeared Diane Bathgate, Mayor personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. (SEAL) qJ" '`, WITNESS my hand and official seal. i� i MNNIII MIX11V11 ��{� ar et R. Monahan, City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Mayor Title Declaration of Covenants & Implementation Signers are Representing Agreement(JSerra Education Initiative) Title or Type of Document The City of San Juan Capistrano 8 plus acknowledgements Number of Pages October 15, 2002 Date of Document Pueblo Serra LLC Representative(s) Signer(s)Other Than Named Above EXHIBIT "A" Property --Description Parcels 1, 2 and 3 as shown on Parcel Map No. 99-107, as per Map filed in Book 309, Pages 33-34 of Parcel Maps, in the Office of the County Recorder of Orange County, California. Assessor's Parcel No: 649-361-03 [Exhibit "A" continues on next page] A-1 PARCEL 1: That portion of the South Half of the Section 36, Township 7 South, Range 8 West, San Bernardino Base and Meridian, according to the official plat thereof, filed in the District Land Office, March 29, 1979 described as follows: Beginning at the point of intersection of the Southerly line of the land conveyed to Carl E. Buchheim and wife, by deed recorded in Book 1400, page 315, Official Records, in the office of the County Recorder of said County, and the Easterly line of california state highway, distant 30.99 feet Easterly and perpendicular from the centerline of said highway, as described in Book 281, page 245 of Deeds, in said office, thence along said Easterly line of Highway North 25° 38' 25" East 144.02 feet to a tangent curve therein concave Westerly having a radius of 1030.00 feet; thence Northerly along said curve through a central angle of 60 07' 00" an arc distance of 109.96 feet to a point in the Southerly line of Parcel 2 as described in deed recorded October 31, 1958 in Book 4466, page 397 of Official Records, of said County, thence along said Southerly line South 890 18' 08" East 370.75 feet to a tangent curve concave Northerly having a radius of 1040.00 feet; thence Easterly along said curve through a central angle 170 04' 24" an are distant of 309.90 feet to a point at which a radial bears South 161 22' 32" East;thence South 180 35' 13" East 153.00 feet;thence North 710 06' 47" East 246.97 feet to a point that certain course described as North 321 33' 49" West 403.38 feet in the deed to the State of California, recorded September 25, 1967 in Boo 8382, page 849, Official Records of said County, thence South 320 33' 49" East along said course, 266.94 feet to the intersection with said Southerly line of the land conveyed to car] E. Buchheim and wife; thence Westerly along said last mentioned Southerly line to the point of beginning. Except therefrom that portion conveyed to the City of San Juan Capistrano, by deed recorded April 17, 1969 in Book 8931, page 47 and following of Official Records, in the office of the County Recorder of said County. EXCEPT THEREFROM all oil, gas, minerals and hydrocarbons, below a depth of 500 feet, without the right of surface entry, as reserved in instruments of record. PARCEL 2: That portion of the South Half of Section 36, Township 7 South, Range 8 West, San Bernardino Meridian, being also a portion of Parcel "T" as shown on a map recorded in Book 2, page 31 of Record of Surveys in said Orange County, described as follows: Commencing at the Northeasterly corner of Parcel "Q" as shown on said record of survey being also a point on the Westerly line of the Atchison, Topeka and Santa Fe Railway Company's right of way, 60.00 feet in width; thence North 701 05' 00" East along the Easterly prolongation of the Northerly line of Parcel "0." a distance of 120.00 feet to a point on the Easterly line of California State Highway, now called Camino Capistrano, as described in the deed to the State of California, recorded February 28, 1925 in Book 565, page 189 of Deeds; being also the true point of beginning; thence along said Easterly line South 19° 26' 00" East, 322.65 feet to a point on the BOundary line of Tract No. 5624, as recorded in Miscellaneous Maps, in Book 205, page 32 through 35 of the Official Records of Orange County; thence along said line North 700 34' 00" East 500.00 feet; thence continuing along the boundary of said Tract 5624, North 90 38' 43" East, 211.71 feet, to a point on the boundary of Tract 5946, as recorded in Miscellaneous Maps, in Book 218, pages 47 through 50 of the Official records of Orange County;thence along the boundary of said Tract North 90 38' 43" East 739.37 feet; thence continuing along the boundary of said Tract 5946 North 690 21' 41" East, 400.00 feet to point on the Westerly line of the San Diego Freeway; said line being described in a deed to the State of California, recorded April 15, 1958 in Book 4255, page 564 Official Records; thence along said Westerly line North 201 38' 19" West 90.00 feet to the intersection of said Westerly line with the Southerly line of the land described in a deed to Carl E. Buchheim, recorded March 29, 1946 in Book 1400, page 315, Official Records; thence along said Southerly line North 890 48' 00" West, 1,239.28 feet to the intersection of said Southerly line with the Easterly line of California State Highway now Calle Camino Capistrano, thence along A-2 r • said Easterly line South 240 03' 20" West, 3.37 feet to the beginning of a tangent curve concave Southeasterly and having a radius of 670.00 feet;thence continuing along said curve through a central angle of 440 19' 20" and an arc length of 518.29 feet;thence continuing along the Easterly lie of Camino Capistrano South 190 26' 00" East 552.80 feet to the true point of Beginning. Except therefrom that portion conveyed to the State of California deed recorded September 26, 1967 in Book 8384, pages 194 and following.of Official Records, in the office of the County Recorder of said County. EXCEPT THEREFROM all oil, gas, minerals and hydrocarbons, below a depth of 500 feet, without the right of surface entry, as reserved in instruments of record. Assessor's Parcel No: 649-011-25, 649-011-30 h A-3