HomeMy WebLinkAboutTC Agd Pkt 2005-06-29
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TOWN OF TIBURON
Town Council Chambers
1505 Tiburon Boulevard
Tiburon, CA 94920
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June 29, 2005
6:15 P.M. - Closed Session
7:30 P.M. - Adjourned Meeting
ASSISTANCE FOR PEOPLE WITH DISABILITIES
In compliance with the Americans with Disabilities Act, if you need special assistance to
participate in this meeting, please contact the Town Clerk at (415) 435-7377, Notification 48
hours prior to the meeting will enable the Town to make reasonable arrangements to ensure
accessibility to this meeting,
AVAILABILITY OF INFORMATION
Copies of all agenda reports and supporting data are available for viewing and inspection at Town
Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. Agendas and minutes
are posted on the Town's website, www.ci.tiburon.ca.us.
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Upon request, the Town will provide written agenda materials in appropriate alternative formats,
or disability-related modification or accommodation, including auxiliary aids or services, to enable
individuals with disabilities to participate in public meetings, Please send a written request,
including your name, mailing address, phone number and brief description of the requested
materials and preferred alternative format or auxiliary aid or service at least 5 days before the
meeting, Requests should be sent to the Office of the Town Clerk at the above address,
PUBLIC HEARINGS
Public Hearings provide the general public and interested parties an opportunity to provide
testimony on these items, If you challenge any proposed action(s) in court, you may be limited to
raising only those issues you or someone else raised at the Public Hearing(s) described later in
this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public
Hearing(s),
TIMING OF ITEMS ON AGENDA
While the Town Council attempts to hear all items in order as stated on the agenda, it reserves
the right to take items out of order. No set times are assigned to items appearing on the Town
Council agenda,
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Agenda - Town Council Meeting '').
June 29, 2005
Page 2 of 4
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AGENDA
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
(Section 54956,9(a))
Zimmerman v, Morphew et al
Bonander & Mulberg v, Town of Tiburon
CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
(Section 54956,9(b))
Threat of litigation received from Reed Union School District
CONFERENCE WITH LABOR NEGOTIATOR
(Section 54957,6)
Bargaining Unit:
Negotiator:
MAPE
Town Manager and Administrative Services Director
CALL TO ORDER AND ROLL CALL
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Councilmember Fredericks, Councilmember Gram, Councilmember Slavitz, Vice Mayor Smith, Mayor Berger
ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY
ORAL COMMUNICATIONS
Persons wishing to address the Town Council on any subject not on the agenda may do so now,
Please note however, that the Town Council is not able to undertake extended discussion or action
tonight on items not on the agenda, Matters requiring action will be referred to the appropriate
Commission, Board, Committee or staff for consideration and/or placed on a future Town Council
meeting agenda, Please limit your comments to no more than three (3) minutes,
CONSENT CALENDAR
All items on the Consent Calendar may be approved by one motion of the Town Council unless a
request is made by a member of the public, staff or Town Council that an item be transferred to the
Regular Agenda for separate discussion and consideration, Likewise, any item on the Regular
Agenda may be moved to the Consent Calendar. If you would like to speak on any of these items
on the Consent Calendar below, please do so now,
1, Approval of Town Council Minutes - June 15, 2005
2,
Recommendation by Director of Administrative Service - Accept Investment Summary - May
2005
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Agenda - Town Council Meeting
June 29, 2005
Page 3 of 4
3, Recommendation by Director of Administrative Services - Authorize Town Manager to Negotiate
Sale of Town-Owned Real Estate at 32 Marsh Road
a) A Resolution of the Town Council of the Town of Tiburon
Authorizing the Town Manager to Execute Documents
Related to the Sale of 32 Marsh Road, Tiburon, California
and the Conveyance of the Property
4, Recommendation by Director of Public WorkslTown Engineer - Authorize Execution of
Cooperative Funding Agreement with Cal/TRANS and County of Marin for Highway 101-East
BlithedalelTiburon Boulevard Interchange Safety Improvements
a) A Resolution of the Town Council of the Town of Tiburon
Authorizing the Town Manager to Execute a Contribution
Agreement with the State of California Department of Transportation
To Initiate Construction of, and Cost Sharing Agreement for, Safety
Improvements to the U,S, Highway 101 Southbound Offramp to East
Blithedale AvenuelTiburon Boulevard, and Appropriating Funds Therefor
5, Recommendation by Assistant Planner - Application for Irrigation Well Permit
Address: 121 Barn Road
Applicant: Kurcher
Assessor Parcel No, 038-162-44
6,
Recommendation by Town Clerk - Reappointment of Allan Bortel to Marin Commission on Aging
REGULAR AGENDA
7, Recommendation by Town Manager - Adoption of FY 2005-06 Municipal Budget and Related
Resolutions
a) A Resolution of the Town Council of the Town of Tiburon
Adopting a Municipal Budget for the Town of Tiburon and
the Tiburon Redevelopment Agency for the Fiscal Year _
Ending June 30, 2006
b) A Resolution of the Town Council of the Town of Tiburon
Repealing Resolution No, 24-2003 and Adopting an Amended
Management Recognition and Incentive Compensation Program
c) A Resolution of the Town Council of the Town of Tiburon
Repealing Resolution No, 25-2003 and Adopting an Amended
Mid-Management, Professional & Confidential Employees
Recognition and Incentive Compensation Program
d)
A Resolution of the Town Council of the Town of Tiburon
Establishing an Appropriations Limit for the Fiscal Year
2005-2006 Pursuant to Article XIII B of the Constitution of
the State of California (Gann Limit)
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Agenda - Town Council Meeting
June 29, 2005
Page 4 of 4
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8, Recommendation by Town Manager - Authorize Sale of Bonds - Del Mar Valley Underground
Utilities Assessment District
a) A Resolution of the Town Council of the Town of Tiburon
Authorizing Issuance of Limited Obligation Improvement Bonds
PUBLIC HEARING
9, Recommendation by Town Manager -Mill Valley Refuse 18th Amendment to Franchise Agreement
10, Report by Planning Manager - Appeal of Design Review Board Approval of addition of Second
Story at 689 Hilary Drive
Assessor Parcel Number:
Applicant:
Appellants:
055-211-07
Ignatius Tsang
Jocelyn McDonnell, Andy Garde & Joe Keller
11, Recommendation by Town Attorney & Director of Community Development - Economic
Exception Ordinance (continued from June 15, 2005)
Introduction & First Reading of Ordinance
a)
An Ordinance of the Town Council of the Town of Tiburon
Adding a new Article VII to Title IV, Chapter 16 of the
Tiburon Municipal Code regarding Economic Exceptions
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, COUNCIL AND COMMITTEE REPORTS
WRITTEN COMMUNICATIONS
Town Council Weekly Digest - June 17, 2005
Town Council Weekly Digest - June 24, 2005
ADJOURNMENT
FUTURE MEETINGS
July 6, 2005 - Regular Meeting - CANCELLED
July 20, 2005 - Regular Town Council Meeting
August 3,2005 - Regular Town Council Meeting
August 17,2005 - Regular Town Council Meeting
FUTURE AGENDA ITEMS - Note: These items are tentative until thev aDDear on the final aaenda
. Risk Management Presentation
. Lyford Cove Utility Undergrounding Assessment District Award of Contract
. Funding Agreement for Downtown Plaza Fountain
. Commission Agreement for Downtown Plaza Fountain
. Tiburon Glen Precise Development Plan
. Drainage Improvements - Notice of Completion
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Diane Crane lacopi
From: Councilmember Alice Fredericks
Sent: Sunday, June 26, 2005 4:22 PM
To: Diane Crane lacopi
Subject: Minutes June 15 corrections
TOWN COUNCIL
DIANE!
LA TEMAIL #...L
MEETING DATE ~ - L e; - d r-
Welcome back
A few errors in the Minutes of June15:
Line 1 Mayor Berger not Fredericks
Closed Session Announcment:
Line 3: subcommittee is Councilmember Slavitz and Smith (not Gram)
Oral Communications:
Check with Alex: I thought Dave Matheson spoke in favor of the cities running the public access channel. That
position would be congruent with his comments during the MTA item # 4, Page 6 parag 5
Regular Agenda - pg 2
Paragraph 3: Clarify that Pat had said the $925K available for roads this year was a one year revenue windfall.
(Then Paragraph 4, about long term funding policy makes sense)
Paragraph 5:Pat Echols reported that Fire Chief Pierce is interested in seeing restoration of vehicle access to
many of the fire roads in Tiburon, including Gilmartin,
Pg 4
Paragraph 4:
Councilmember Fredericks commented that it would be prudent to lock in franchise fees with Comcast in
anticipation of legislative changes to the state and federal changes in telecommunications law that might give
them the exemptions they are seeking,
Page 5 item 4:
There should be a summary about what direction the Council gave Tom after the public hearing was closed,
Check with Alex, I believe it was keep on keeping on negotiating
Page 8: Paragraph 5:
She said that statutory construction rules could interpret the listing of significant ridgelines to preclude other
environmental resources if ordinance were challenged, She recommended substituting ''''minimizes damage to
the environment and significant environmental resources
Thnx
Alice
{D) ~ ~ ~ ~'~ ~ fro
m1 JUN 2 7 Z005 \W
TOWN CLERK
TOWN OF TIBURON
06/27/2005
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TOWN COUNCIL
MINUTES
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CALL TO ORDER
Mayor Fredericks called the regular meeting ofthe Tiburon Town Council to order at 7:37 p.m.
on Wednesday, June 15,2005, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon,
California.
ROLL CALL
PRESENT: COUNCILMEMBERS:
Berger, Fred~ricks, Gram, and Slavitz
ABSENT: COUNCILMEMBERS:
Smith
PRESENT: EX OFFICIO:
Town Manager McIntyre, Town Attorney Danforth,
Director of Community Development Anderson,
Director of Public Works/Town Engineer Echols,
Chief of Police Odetto, Director of Administrative
Services Bigall, Financial Analyst Stott, Meeting
Recorder Creekmore
ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY
Mayor'Berger announced that direction was given to the Town to execute an agreement regarding
litigation with the school district. He said that a subcommittee, whose members include
Councilmembers Slavitz and Gram, had been formed to address issues regarding negotiations
with the school.
ORAL COMMUNICATIONS
David Matheson, Tiburon resident and member of Media Action of Marin, said that Marin
County's public access television is run by Comcast and not by local government. He spoke in
favor of a nonprofit-run public access station. He said that Comcast is in violation of numerous
terms of their franchise agreement and presented a public access non-profit resolution for the
Council's consideration.
Steven Fienes, resident of Strawberry, spoke in support of Mr. Matheson's statements. He said
that Comcast is to blame for the community's lack of interest in public access television and
urged the Council to consider adopting the resolution presented by Mr. Matheson.
Town Council Minutes #14-2005
June IS, 2005
Page I
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CONSENT CALENDAR
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1. Approval of Town Council Minutes - June 1, 2005
2. Recommendation by Town Manager - Authorize Renewal ofCDBG Block Grant
Agreement with County of Marin
MOTION: To approved Consent Calendar Items 1 and 2, above.
Moved: Slavitz, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: Smith
REGULAR AGENDA
3. Recommen~ation by Town Manager - Introduction ofFY 2005-06 Municipal Budget
and Capital Improvement Program
Financial Analyst Stott gave a PowerPoint presentation of the proposed budget showing an
operating budget of $7.4 million with an operating surplus of$280,000. He reviewed the Town's
operating budget, revenue sources, and planned expenditures, including increased CalPERS
contributions. He reported that a significant change in the upcoming budget is the inclusion of
$210,000 in ERAF rebate revenue.
Town Manager McIntyre explained that the operating budget, general fund, and capital
improvement program are three separate and distinct entities.
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Director of Public Works Echols 'gave an overview of the capital improvement program budget
and noted that due to two current undergrounding projects, the budget is possibly the largest it
has been in the Town's history. He reviewed the projects included in the program and said that
$925,000 will go to resurfacing and repair projects. He reported that the Town received more
revenue from the street impact fee in the previous year than what was expected.
Councilmember Fredericks asked if a long-term policy would be presented to the Council to
address long-term funding for road resurfacing projects. Director of Public Works Echols replied
that later this summer specific funding scenarios and their alternatives will be presented to the
Council.
Mayor Berger said that he would like to incorporate something into the Town's phone survey to
identify which expenditures the public is most interested in.
With respect to the Gilmartin fire road, Director of Public Works Echols said that as a result of
recent conversations with Fire Chief Pierce, the Tiburon Fire Department is interested in seeing
restoration of vehicle access on that trial.
Town Council Minutes #14-2005
June 15, 2005
Page 2
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Mayor Berger opened and'closed the public hearing. There was no public comment.
Councilmember Slavitz commended Staff for their work and said that he is happy to see that the
street rehabilitation funds were increased,
Councilmember Gram said that he would like to receive feedback on the janitorial program.
Councilmember Fredericks said that she is happy with the budget and added that the she hopes
the public understands that the increase in street rehabilitation funds is a blessing. She said that
she would like to see a policy developed that keeps the Town's roads in good condition.
Mayor Berger agreed with the comments of his fellow Councilmembers,
Town McIntyre informed the Council that Staff would return to Council on June 29 with the final
budget and adopting resolutions.
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4. Request from Marin Telecommunications Agency - Direction to MT A Delegate
Concerning
a) Resolution Adopting Preliminary Engineers Report & Action Related Thereto
b) Renewal of Comcast Franchise Agreement
c) Telephone Company's Entrance mto Cable Arena
d) MTA Development of Media Facility
Town Manager McIntyre gave a brief background on the current challenges faced by the Marin
Telecommunications Agency (MTA), as well as its role with the Town, He reported that the
MTA'sthe biggest current issue is with Comcast and informed the Council that the Town,is a
partner in MTA's :franchise agreement with Comcast. He indicated that Com cast pays a 5%
franchise fee to local agencies for the use of rights-of-way in each community. He said that total
franchise fees collected for 2004-05 for all MT A members totaled $2 million; Tiburon received
$108,000 of that.
Town Manager McIntyre said that there are four issues being brought before the Council.
Council agreed to discuss and provide direction and feedback for each of the issues separately,
1. Should the MT A pursue a municipally-owned broadband cable system?
Councilmember Slavitz asked who would be responsible for running such a system. Town
Manager McIntyre replied MT A would run the system. He said that there are cities that run their
own cable systems, which typically incur costs of approximately $500,000,
Mayor Berger opened the public comment period.
Town Council Minutes #14-2005
Page 3
June 15, 2005
Mr. Matheson said that the franchise agreement belongs to Marin County, not Comcast, and that
it should be run and controlled by the people of Marin. He added that there has not been an .
analysis in over three years to determine if Marin is owed any money by Comcast. He'spoke
against Comcast being Marin's cable provider.
Mr. Fienes said that there are many potential functions of public access to service the
community. He expressed concern over Comcast's role as the county's cable provider and
discouraged the Council from entering into a ten-year agreement with Comcast.
Mayor Berger closed the public comment period.
Councilmember Fredericks commented that she readthat Comcast has attempted to "lock in"
their franchise fees in anticipation of changes to the communications systems.Mr, Fienes said
that this issue has been addressed by Congresswoman Lynn Woolsey and the MTA.
Councilmember Gram said that one of the big keys is crafting an agreement that provides
protection five or ten years from now based on changes to the current technology. He said that
he does not believe that Marin is big enough to pursue a municipally owned broadcast system,
Mayor Berger asked if an entity other than Comcast could provide cable services to Marin,
Councilmember Gram said that the MT A is in a good position to negotiate with Comcast and
clarified that there is no push to sign the contract at this point in time. He said that he believes a .
short-term contract would be preferred over a ten year contract.
Council agreed that Marin is not prepared to pursue a municipally-owned cable system.
2. Should the MTA pursue the "formal" cable renewal process rather than the "informal"
process?
Town Manager McIntyre said that the invoking the "formal" process would be time consuming,
structured, and expensive, costing approximately $500,000 more than the "informal" process.
He reported that the MT A attorney is not recommending the formal process.
Mayor Berger opened the public comment period.
Mr. Fienes said that Tom Robinson, consultant to the Marin Access Advisory Committee, was
brought in to perform an assessment of what might occur should the MT A select the formal
process. He said that the formal process, albeit more expensive, gives the MT A the ability to
start and stop the process at any time,
Councilmember Gram clarified that the formal process opens up the possibility of replacing
Comcast as the cable provider. He said that he does not feel that declaring a formal process at
this time is necessary, as it can be started at any time,
Town Council Minutes #14-2005
June 15, 2005
Page 4
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Mr. Matheson said that Media Action of Marin has been negotiating with Com cast in good faith
for over five years. He said Comcast violated the franchise agreement by placing commercial
content on a non-commercial station, which put them into the position to make money off of a
non-profit station. He urged the Council to opt for the formal process.
Mayor Berger closed the public comment period.
Council agreed with Councilmember Gram's suggestions.
3. Should the MTA sue SBC requiring them to obtain a franchise as a condition to provide
video services to MT A residents? ' '
Town Manager said that this question has to do with whether non-cable providers, such as
internet service providers, should pay a franchise fee for the services that they are providing. The
larger question, he explained, is whether Marin County wants to be the agency that challenges
SBC to provide a franchise fee for the services they bring into Town. He said that one ofthe
arguments that have been suggested is that a larger entity with more resources, and more to gain,
should be the one to challenge SBC.
Mayor Berger asked why the Town should receive franchise fees from non-cable providers.
Town Manager McIntyre explained that one of the reasons is because they are given exclusive
use of Town rights-of-way, Additionally, he added, they disrupt the Town's infrastructure when
trenching for their services.
Town Manager said that SBC currently pays franchise fees for telecommunication services, but
not information services.
Mayor Berger opened the public comment period.
Mr. Matheson said that the MT A should not sue Verizon or SBC.
Mayor Berger closed the public comment period.
Council agreed that the MT A sh<;mld not sue SBC,
4. Should the MT A require Comcast to provide a media facility (cable studio) as part ofthe
franchise renewal?
Town Manager McIntyre indicated that Comcast presently provides a media facility for the
purpose of public, education, and government (PEG) access television, but that they will not
provide operating costs for such a facility, He informed the Council that operating costs are
approximately $5.7 million over a 10 year period; Tiburon's share would be $173,000. He said
Town Council Minutes #14-2005
PagG5
June IS, 2005
that the issue is whether there is sufficient demand from Tiburon cable subscribers and residents
for PEG access to justify the costs. .
Councilmember Gram clarified that the issue is whether Comcast should pay for the facility's
operating costs,
Mayor Berger commented that planning and design review sessions for the City of Piedmont are
broadcast over their public access channel.
Mayor Berger opened the public comment period,
Mr. Matheson presented a list of nonprofit-run PEG channels by local cites and the services that
they provide to the community with those channels, He said that although Comcast is supposed
to provide twenty-four hours of noncommercial programming, they currently only provide 8-10
hours of noncommercial programming. He urged the Council to consider an independent,
publicly-run public access station.
Councilmember Gram said that the reason Channel 26 is run from an old, dilapidated building is
because it's a vestige from an old agreement, and that the situation will change with the new
agreement. In response to Mr. Matheson's comments, he said that upon request by the MTA,
Comcast no longer plays commercials on Channel 26.
Councilmember Slavitz said that he watches County Board of Supervisor meetings via the .
internet and said that many services could just as easily be provided over the internet in addition
to public access channels,
Mr. Fienes said that Comcast has no interest in seeing Channel 26 succeed and that they are
responsible for it having done so poorly. He said in order for public access television to prosper,
the community should become more involved in the programming and content.
Mayor Berger thanked the public for their comments and closed the public hearing.
PUBLIC HEARING
5, Recommendation by Town Attorney & Director of Community Development-
Economic Exception Ordinance
Town Attorney Danforth gave a detailed introduction to the proposed zoning ordinance text
amendment to add provisions regarding economic exceptions. She told the Council that the
Institute of Local Self Government developed a model ordinance that creates an economic
variance procedure. She said that takings claims are one of the most contentious areas of land
use law and litigation can be protracted, costly, and of uncertain outcome. She explained that
takings litigation falls into two broad categories: facial claims and the more common "as-
Town Council Minutes #14-2005
June 15, 2005
Page 6
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applied" challenge. She overviewed the process of Economic Exception and the actions that
would be required of Town Council should a hearing be held,
Town Attorney Danforth explained that the proposed ordinance would require property owners to
request an Economic Exception before makingra takings claim, which would give the Town an
opportunity to review all the facts and reasoning relevant to the potential claim.
Community Development Director Anderson gave an overview of the concerns raised by the
Planning Commission regarding the ordinance. These concerns included excessive filing of
Economic Exception applications, whether information regarding the fair market value of the
property should be required, and a request :from Jerry Riessen to modify Section 16-7 .5( a)(2).
In response to questions by Councilmember Slavitz, Town Attorney Danforth explained that a
developer could make a claim that they are entitled to some return on the money that they have
put into the property. She said that this is something the Council could consider, but they could
also consider countervailing factors.
Councilmember Gram expressed concern over the language "as early as possible" without any
mention of the penalty involved, Town Attorney Danforthreferred to Sections 16-7.2, 16-7.3(a)
,and 16-7 .3(b) and explained that the penalty of not requesting an Economic Exception in a timely
fashion is that they would not get to litigate it afterwards. She said that a minimum of twenty
days is required for the developer to provide all necessary information, but that the Director of
Community Development can provide additional time if necessary.
With respect to the timeframes outlined in the ordinance, Town Attorney Danforth said that she
had concerns with CEQA and the Permit Streamlining Act. She explained that she wanted to
make sure that there was a mechanism in place to waive 'the Permit Streamlining Act deadlines if
the developer were to receive an extension on the timeframes outlined in the ordinance.
Councilmember Slavitz asked how long the permit timeline is. Community Development
Director Anderson replied that if there is an EIR involved, typically there are 180 days to take
action on a project after the EIR has been certified, if it is a negative declaration or categorical
exemption, there are 90 days to take action.
Councilmember Fredericks commented that the ordinance can be viewed as a benefit to
developers.
Councilmember Gram expressed concern that the timeframes outlined in the ordinance will
create problems. Community Development Director Anderson replied that an expert will be
retained to handle each case. Town Attorney Danforth added that she does not expect the
ordinance to be invoked with great frequency, but that when it is invoked it has the potential to
allow the Town to avoid taking any action that would create an unconstitutional taking and to
greatly reduce the cost oflitigation should a taking claim be filed in court. She realized that there
Town Council Minutes #14-2005
June 15, 2005
Page 7
is room for improvement in the ordinance, but that the concept is very beneficial. She explained
that the function of the ordinance is to put all of the information before the Council. .
Mayor Berger opened the public hearing.
Joanna Kemper, Tiburon resident, said that she thought that the ordinance appeared to be a
reasonable plan. She referenced Jeny Reissen's comments on page 4 of the Staff report and
explained that Mr. Riessen proposed the change to keep in line with the Town's General Plan to
provide protection of undeveloped ridgelines.
Mayor Berger closed the public hearing.
Councilmember Fredericks expressed concern over the proposed amendment regarding the
protection of ridgelines. She said that having just the ridgeline there excludes other
environmental resources. She recommended adding "such as significant ridgelines". '
Councilmember Fredericks said that she supports adopting the ordinance.
Councilmember Slavitz said that the biggest advantage of the ordinance is that it forces the
developer to put all of their cards on the table. He suggested tightening up the language
regarding timeframes. Town Attorney Danforth requested that the Council provide specific
feedback as to how the timeframe should be changed,
Councilmember Gram said that he would like to take additional time to review the ordinance and .
the he would like Councilmember Smith to have an opportunity to provide feedback on it as
well,
Councilmember Slavitz said that Mr. Riessen's addition regarding ridgelines is good but that
since they are addressed in the General Plan, it doesn't seem necessary to spotlight them in this
ordinance.
Mayor Berger agreed that it would be best to leave the language more general and not include
ridgelines.
Mayor Berger also suggested that explicit language be included that the Planning Director could
grant additional time,
Council agreed that Section l6-7.5(a)(2) should be revised to state "minimize environmental
damage as required by CEQA".
Council agreed that changes made to the timeframe would be discussed at a later date,
Item continued.
Town Council Minutes #14-2005
June 15, 2005
Page 8
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WRITTEN COMMUNICATIONS
Town Council Weekly Digest - June 3, 2005
Town Council Weekly Digest - June 10,2005
ADJOURNMENT
There being no further business before the Town Council, Mayor Berger closed the meeting at
9:52 p.m., and the Council agreed to an adjourned meeting on June 29, 2005.
MILES BERGER, MAYOR,
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Town Council Minutes #14-2005
June 15, 2005
Page 9
. Town of Tiburon
STAFF REPORT
AGENDA ITEM
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TO:
Mayor and Members of the Town Council
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FROM: Heidi Bigall, Director of Administrative Services ~
SUBJECT: Monthly Investment Summary - May 2005 ~
MEETING DATE: June 29, 2005 REVIEWED BY: ~
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TOWN OF TIBURON
Institution/Agency
Investment
Amount Interest Rate
Maturity
State of California Local Agency $15,266,584,87 2,856% Liquid
Investment Fund
(LAIF)
Bank of America Other 0 %
Total Invested: $15,226,584.87
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TIBURON REDEVELOPMENT AGENCY
I nstitution/ Agency
Investment
Amount Interest Rate
Maturity
State of California Local Agency $924,773,14 2,856% Liquid
Investment Fund
(LAIF)
Bank of America Other $0
Total Invested: $924,773,14
Notes to Table Information:
State of California Local Agency Investment Fund (LAIF): The interest rate
represents the effective yield for the month referenced above. The State of California
generally distributes investment data reports in the third week following the month
ended.
Acknowledgment: This summary report accurately reflects all pooled investments of
the Town of Tiburon and the Tiburon Redevelopment Agency, and is in conformity
with State laws and the Investment Policy adopted by the Town Council. The
investment program herein summarized provides sufficient cash flow liquidity to meet
.ext month's estimated expenditures.
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Town of Tiburon
STAFF REPORT
AGENDA ITEM ~
TO:
Mayor and Members of the Town Council
FROM:
Heidi Bigal!, Director of Administrative Services
SUBJECT:
Authorization of Sell Town Owned Unit at 32 Marsh Road~
June 29, 2005 REVIEWED BY:-lJJ-
MEETING DATE:
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The Town of Tiburon currently owns six below market rate (BMR) units in the Point Tiburon
Marsh development. The inventory consists of four one-bedroom and two two-bedroom units.
The Town owned one-bedroom unit at 32 Marsh Road recently became vacant. The unit was
offered to Town staff for rent, with no interest. The unit was also offered to the variousTiburon
Peninsula public agencies, with no interest.
Staff believes it is appropriate to offer this unit back to the Housing Authority for resale, This
would reduce the total number of Town owned units to 5, or 25% of the below market rate units
in the Marsh area, and create a more desirable blend of units owned by the Town,
The Town purchased 32 Marsh Road in 2001 for $112,000, The Housing Authority has placed a
current sales price of $127,000 for this unit. The proceeds from the sale of the unit would be
deposited to the Town's General Low & Moderate Income Housing In-Lieu Fund,
Recommendation
It is recommended that the Town Council adopt the exhibit resolution authorizing the Town
Manager to execute all documents necessary to sell the Town owned BMR unit at 32 Marsh
Road
Exhibit
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RESOLUTION NO.
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A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
AUTHORIZING THE TOWN MANAGER TO EXECUTE DOCUMENTS
RELATED TO THE SALE OF 32 MARSH ROAD, TIBURON, CA AND
THE CONVEYANCE OF THE PROPERTY
WHEREAS, on June 29, 2005, the Town Council of the Town of Tiburon
authorized the Town Manager to negotiate a contract for the sale of Town owned
property at 32 Marsh Road, Tiburon, CA, Assessor's Parcel No. 058-440-03;
WHEREAS, state law provides that a deed conveying an interest in land shall not
be accepted for recordation without the consent of the Town evidenced by its certificate
or resolution of acceptance attached to pr printed on the deed or grand; and
WHEREAS, close of escrow will require the Town to execute and record the
Grant Deed to Purchaser and other documents relating to the transfer oftitle;; and
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of
Tiburon that the Town Manager is authorized to execute all documents necessary to
accomplish the conveyance of 32 Marsh Road, Tiburon, CA, including, without
limitation, the Grant Deed.
. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
ofTiburon on ,2005 by the following vote:
AYES:
NOES:
ABSENT:
MILES BERGER, MAYOR
ATTEST:
DIANE CRANE-IACOPI, TOWN CLERK
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. Town of Tiburon
STAFF REPORT
AGENDA ITEM ~
TO:
Mayor and Members of the Town Council
Pat Echols, Director of Public Worksl Town Engineer ~
FROM:
SUBJECT: Resolution Authorizing Execution of Cooperative Funding
Agreement with Caltrans and County of Marin for Highway 101-
East BlithedalelTiburon Boulevard Interchange Safety
Improvements m
MEETING DATE: June 29,2005 REVIEWED BY: ~
BACKGROUND & DISCUSSION
For the past several years, Caltrans has been finalizing plans for the Highway 101-
East BlithedalelTiburon Boulevard Interchange Off-Ramp Safety Project. The main
component of the project is the construction of an additional dedicated exit laneloff-
ramp from southbound Highway 101 to the East Blithedale Avenue/Tiburon
Boulevard intersection. Caltrans has estimated the project construction costs to be
. approximately $5.7 million. Both the County of Marin and the Town of Tiburon have
committed funding for project construction, The County will contribute $800,000, The
Town's proposed contribution is $100,000,
The Tiburon General Plan Circulation Element proposes this freeway off-ramp
widening project as a needed circulation improvement to accommodate new
development and maintain acceptable levels of service at intersections within the
Tiburon Planning Area, Furthermore, the Town has collected development fees from
projects pursuant to Chapter 14B of the Municipal Code and Resolution No. 3162 for
the funding of this circulation improvement in the Planning Area Mitigation Fund
restricted reserve account. The next step is for the County of Marin and the Town to
execute a cooperative funding agreement (Exhibit 1). The Town Council must adopt
the attached resolution (Exhibit 2) authorizing execution of the agreement by the
Town Manager, The final agreement has been reviewed by the Town Attorney and
approved as to form,
RECOMMENDATION
It is recommended that the Town Council adopt the attached resolution authorizing
the execution of the cooperative funding agreement with Caltrans and the County of
Marin for the Highway 101-East Blithedale/Tiburon Boulevard Interchange Safety
Improvements Project.
EXHIBITS
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1,
2,
Funding Agreement
Draft Resolution
6/24/2005
1 of 1
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04-Mrn-101 KP 9,3/10,0 (PM 5,8/6,2)
East Blithedale Off Ramp
04227-2937U1
District Agreement No, 4-2024
CONTRIBUTION AGREEMENT
THIS AGREEMENT, ENTERED INTO EFFECTIVE ON ,2005,
is between the STATE OF CALIFORNIA, acting by and through its Department of
Transportation, referred to herein as "STATE", and the
COUNTY OF MARIN, a political subdivision of
the State of California, referred to herein as
"COUNTY", and the
TOWN OF TIBURON, a body politic and a
municipal corporation of the State of
California, referred to herein as "TOWN",
RECITALS
1. STATE, COUNTY and TOWN, pursuant to Streets and Highways Code section 130, are
authorized to enter into a Cooperative Agreement for improvements to State highways
in the County of Marin,
2, STATE, COUNTY and TOWN desire State highway improvements consisting of widening
two (2) lanes at the southbound State Route 10 1 off-ramp to East Blithedale
Avenue/Tiburon Boulevard in the County of Marin, referred to herein as "PROJECT",
3, COUNTY desires and has pledged an $800,000 contribution to STATE towards the cost
of construction of PROJECT, '
4, TOWN desires and has pledged a $100,000 contribution to STATE towards the cost of
construction of PROJECT,
5, The parties hereto intend to define herein the terms and conditions under which
PROJECT is to be constructed, financed, and maintained,
SECTION I
STATE AGREES:
1. To administer the construction contract for PROJECT,
SECTION II
COUNTY AGREES:
1. To deposit with STATE within twenty-five (25) days of receipt of billing therefor [which
billing will be forwarded fifteen (15) days prior to STATE's bid advertising date of a
construction contract for PROJECT], the amount of $800,000, which figure represents
1
District Agreement No, 4-2024
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the lump sum total amount of COUNTY's agreed to share of the construction cost for
PROJECT,
.
2, To maintain any improvements installed pursuant to this Agreement, which lie inside
COUNTY's right of way,
SECTION III
TOWN AGREES:
1, To deposit with STATE within twenty-five (25) days of receipt of billing therefor [which
billing will be forwarded fifteen (15) days prior to STATE's bid advertising date of a
construction contract for PROJECT], the amount of $100,000, which figure represents
the lump sum total amount of TOWN's agreed to share of the construction cost for
PROJECT,
SECTION IV
IT IS MUTUALLY AGREED:
1, All obligations of STATE under the terms of this Agreement are subject to the
appropriation of resources by the Legislature in the annual State Budget Act, and the
allocation of resources by the California Transportation Commission,
2, Upon completion of all work under this Agreement, ownership and title to materials,
equipment and appurtenances installed within STATE's right of way will automatically
be vested in STATE and no further agreement will be necessary to transfer ownership
to STATE, Any materials, equipment and appurtenances installed inside the COUNTY's
right of way will automatically be vested in COUNTY, Any materials, equipment and
appurtenances installed inside TOWN's right of way will automatically be vested in
TOWN. No further agreement will be necessary to transfer ownership as hereinabove
stated,
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3, Neither STATE nor any officer or employee thereof is responsible for any damage or
liability occurring by reason of anything done or omitted to be done by COUNTY and
TOWN under or in connection with any work, authority or jurisdiction delegated to
COUNTY or TOWN under this Agreement, It is understood and agreed that, pursuant
to Government Code section 895.4, COUNTY and TOWN shall fully defend, indemnify
and save harmless STATE and all its officers and employees from all claims, suits or
actions of every name, kind and description brought for or on account of injury (as
defined in Government Code section 810,8) occurring by reason of anything done or
omitted to be done by COUNTY or TOWN under or in connection with any work,
authority or jurisdiction delegated to COUNTY or TOWN under this Agreement,
4, Neither COUNTY and TOWN nor any officer or employee thereof is responsible for any
damage or liability occurring by reason of anything done or omitted to be done by
STATE under or in connection with any work, authority or jurisdiction delegated to
STATE under this Agreement, It is understood and agreed that, pursuant to
Government Code section 895.4, STATE shall fully defend, indemnify and save
harmless COUNTY and TOWN from all claims, suits or actions of every name, kind and
description brought for or on account of injury (as defined in Government Code section
810,8) occurring by reason of anything done or omitted to be done by STATE under or
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District Agreement No, 4-2024
in connection with any work, authority or jurisdiction delegated to STATE under this
Agreement.
5,
This Agreement shall terminate upon completion and acceptance of the construction
contract for PROJECT by STATE and fInal disposition of COUNTY's and TOWN's
required deposits as specifIed in Section II, Article 1 and Section III, Article 1 above, or
on June 30,2009, whichever is earlier in time,
6,
The parties hereto recognize and agree that separate counterpart signature pages may
be used but that all such pages constitute one and the same Agreement,
STATE OF CALIFORNIA
Department of Transportation
COUNTY OF MARIN
WILL KEMPTON
Director
By:
Deputy District Director
By:
President, Board of Supervisors
Approved as to form and procedure:
Attest:
Clerk of the Board of Supervisors
Attorney
Department of Transportation
Certified as to budgeting of funds:
Approved as to form:
District Budget Manager
County Counsel
Certified as to financial terms and
conditions:
Accounting Administrator
3
TOWN OF TIBURON
By:
Town Manager
Attest:
Town Clerk
Approved as to form:
Attorney
District Agreement No, 4-2024
4
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RESOLUTION NO. XX-2005
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
AUTHORIZING THE TOWN MANAGER TO EXECUTE A CONTRIBUTION AGREEMENT
WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION TO INITIATE
CONSTRUCTION OF, AND COST SHARING AGREEMENT FOR, SAFETY IMPROVEMENTS
TO THE U.S. HIGHWAY 101 SOUTHBOUND OFFRAMP TO EAST BLlTHEDALE
AVENUEITIBURON BOULEVARD, AND APPROPRIATING FUNDS THEREFOR
WHEREAS, the California Department of Transportation, County of Marin, City of Mill
Valley and Town of Tiburon desire to improve safety and reduce accidents for southbound
vehicles on U,S, Highway 101 exiting at East Blithedale Avenue/Tiburon Boulevard; and
WHEREAS, the California Department of Transportation has prepared and approved
a Project Study Report for the U,S, Highway 101 southbound off-ramp to East Blithedale
AvenuelTiburon Boulevard safety improvements which establishes the estimated project cost;
and
WHEREAS, the Tiburon General Plan Circulation Element proposes this freeway off-
ramp widening project as a needed circulation improvement to accommodate new development
and maintain acceptable levels of service at intersections within the Tiburon Planning Area; and
WHEREAS, the Town of Tiburon has collected development fees from projects
pursuant to Chapter 14B of the Municipal Code and Resolution No. 3162 for the funding of this
circulation improvement, said fees being placed in the Planning Area Mitigation Fund restricted
reserve account; and
WHEREAS, executing of this agreement and construction of the off-ramp
improvements is consistent with the goals and policies of the Tiburon General Plan and with
provisions of Chapter 14B of the Tiburon Municipal Code and Resolution No, 3162; and
WHEREAS, the County of Marin and City of Mill Valley have adopted resolutions
supporting the widening of the southbound off-ramp to improve safety; and
WHEREAS, the Town agrees to share in the construction costs with a contribution
amount not to exceed $100,000.
NOW, THEREFORE BE IT RESOLVED, that the Town Council of the Town of
Tiburon hereby appropriates the sum of $100,000 from the Planning Area Mitigation Fund
restricted reserve account for said purpose, and authorizes the Town Manager to execute the
Contribution Agreement.
PASSED AND ADOPTED at a
Town of Tiburon held on the day of
AYES:
NOES:
ABSENT:
ATTEST:
Diane Crane lacopi, Town Clerk
meeting of the Town Council of the
, 2005, by the following vote:
MILES BERGER, MAYOR
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Town of Tiburon
STAFF REPORT
s-
AGENDA ITEM
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KRISTIN KRASNOVE, ASSISTANT PLANNER
35 OLD LANDING ROAD; FILE #W05-02
REVIEW OF A WELL PERMIT APPLICATION FOR THE~ OIL G OF A
WELL FOR THE PURPOSES OF IRRIGATION.
JUNE 29, 2005 REVIEWED BY:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..
TO:
MAYOR AND MEMBERS OF THE TOWN COUNCIL
FROM:
SUBJECT:
MEETING DATE:
PROJECT DATA:
OWNER! APPLICANT:
WELL DRILLER:
ADDRESS:
ASSESSOR PARCEL NUMBER:
FILE NUMBER:
ZONING:
GENERAL PLAN:
FLOOD ZONE:
DATE COMPLETE:
GERDA KURCHER
FISCH BROTHERS DRILLING
121 BARN ROAD
038-162-44
W05-02
RO-2 (SINGLE-FAMILY RESIDENTIAL OPEN)
M (MEDIUM DENSITY RESIDENTIAL)
C
FEBRUARY 10, 2005
PROPOSAL:
The applicant has submitted a request to drill a well on the vacant property at 35 Old Landing
Road for the purposes of landscape irrigation, The applicant owns the adjacent property at
4478 Paradise Drive, and does not intend to develop the subject property at 35 Old Landing
Road. The well would be located on the southeast corner of the property, No specifications for
any well appurtenances, such as water storage containers, have been submitted at this time,
The owner is required to obtain design review approval for any such appurtenances,
ANALYSIS:
In reviewing well permit applications, the Town must ensure that the proposal is in compliance
with the requirements set Chapter 13F of the Municipal Code (water well construction and use).
In accordance with Chapter 13F, staff has made the following conclusions:
. ,The applicant has provided the necessary documentation to ensure that the contractor to
perform the work has the appropriate credentials, and that the location of the proposed
well will not affect the properties in the vicinity,
Tiburon Town Council
6/29/05
Staff Report
10f 2
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Town of Tiburon
STAFF REPORT
. Based on the submitted materials, it appears that the granting of the permit will not be
detrimental to the public health, safety or welfare, nor injurious to other properties in the
vicinity,
Based on the above conclusions, the project is found to be in compliance with the Town's
requirements in respect to the construction of irrigation wells,
PRELIMINARY ENVIRONMENTAL DETERMINATION:
Planning Division Staff has made a preliminary determination that this proposal would be
exempt from the provisions of the California Environmental Quality Act (CEQA) as specified in
Section 15303,
RECOMMENDATION:
It is recommended that the Town Council review this project with respect to Chapter 13F of the
Municipal Code (water well construction and use) and determine that the project is exempt from
the provisions of the California Environmental Quality Act (CEQA) as specified in Section 15303 .
of the CEQA Guidelines, It is further recommended that the Town Council adopt the attached
resolution of approval for the proposed project. '
EXHIBITS:
1, Draft Resolution
2, Plans for the project
.
Tiburon Town Council
Staff Report
6/29/05
2of2
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RESOLUTION -DRAFT
A RESOLUTION OF THE TOWN COUNCil OF THE TOWN OF TIBURON
APPROVING THE DRilLING OF A WEll FOR IRRIGATION PURPOSES
ON A PROPERTY lOCATED AT 35 OLD LANDING ROAD
ASSESSOR PARCEL NUMBER 038-162-44
WHEREAS, the Town Council of the Town of Tiburon does resolve as follows:
Section 1. Findings.
A. An application for drilling of an irrigation water well has been submitted by the
property owner of 35 Old Landing Road.
B. The Town Council has reviewed the application and determined that the project
is consistent the requirements of Chapter 13F of the Municipal Code concerning
water wells and is consistent with the Tiburon General Plan.
C. The Town Council has determined that the project is categorically exempt from
the requirements of CEQA per Section 15303(d) of the CEQA Guidelines,
D. The Town Council finds that the project, as conditioned, will not be detrimental to
the public health, safety, or general welfare nor injurious to other properties in
the vicinity.
E.
The Town Council finds that the owner has provided a written report from a
registered civil engineer stating that the water well is unlikely to produce harmful
impacts on neighboring properties or result in subsidence,
Section 2. Approval.
NOW, THEREFORE, BE IT RESOLVED that the Town Council approves the
application for an irrigation water well at 35 Old Landing Road subject to the following
conditions:
1. The well shall meet all applicable well standards adopted by Chapter 7.28 of the
Marin County Code, as maY' be amended from time to time, and any other
regulations adopted by the County pursuant thereto.
2. The well shall meet all applicable requirements ofthe Marin Municipal Water
District.
3, No well-related work shall commence until such time as a Well Permit Certificate
has been issued by the Planning Director, Hours of well drilling and any
associated construction work shall be limited to 7:00 A.M. to 5:00 P,M, Monday
through Friday, and 9:30 A.M, to 4:00 P.M. on Saturday,
Town Council Resolution-DRAFT - Well Permit at 35 Old Landing Road
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4.
Any and all equipment and/or vehicles associated with the well construction shall
not prevent or substantially impede vehicular passage on any street within the
Town of Tiburon,
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5. Site Plan and Architectural Review approval shall be required for any structures
associated with the well, such as water storage containers, which require such
approval.
6, This approval may be suspended or revoked for cause, pursuant to Section 13F-
8 of the Tiburon Municipal Code.
7, This approval shall expire and become null and void six months after Council
approval. One extension of up to six months may be granted by the Town
Manager for good cause.
, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Tiburon on March 2, 2005, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
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MILES BERGER, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE L. CRANE, TOWN CLERK
S:\Planning\Staff Folders\kkrasnove\Resolutions\35 Old Landing Road Well.RES,doc
Town Council Resolution-DRAFT - Well Permit at 35 Old Landing Road
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Town of Tiburon
STAFF REPORT
I
AGENDA ITEM -k
TO:
MAYOR BERGER AND MEMBERS OF THE TOWN COUNCIL
FROM:
TOWN CLERK DIANE CRANE IACOPI
SUBJECT:
MARIN COMMISSION ON AGING - REAPPOINTMENT OF ~N
REPRESENTATIVE ALLAN BOREL
JUNE 29, 2005 REVIEWED BY:
MEETING DATE:
BACKGROUND
The three-year term of Tiburon representative to the Marin Commission on Aging, Allan Bortel,
will expire on June 30,2005. Mr. Bortel has contacted the Town to express his interest in
continuing to serve in this capacity,
Pursuant to Resolution No. 3263 ("Appointments Procedure"), the Town Clerk posted a Notice'
of Pending Vacancy for the position at Town Hall and the Belvedere-Tiburon Library, In
addition, a notice was published in the Ark newspaper, While one telephone inquiry was
received, no new applications were filed for the pending vacancy.
RECOMMENDATION
That the Town Council reappoint Mr. Bortel to the Marin Commission on Aging for another term.
ATTACHMENTS
· Letter from County Department of Health and Human Services/Division on Aging
. E-mail from Allan Bortel
t~
,/~' / '7
r / /. ,
/ ;- / "
,/ /7~tu/ ,I,,/~/~ d)A
/ / - >//~: c.~ / ..f
Diane Crane lacopi
Town Clerk
'i"
......~; '," .-., .--.... ......~..
DEPARTMENT OF HEALTH AND HUMAN SERVICES
May 18, 2005
ij ~~~~u ~
~ MAY 2 0 2005 ~)
DIVISION OF AGI.
10 N, SAN PEDRO RD" STE, 1012
SAN RAFAEL, CA 94903
PHONE: (415) 499-7396
FAX: (415) 499-5055
www.cQ.marin.ca.us/aging
Larry Meredith,Ph.D" Director
Miles Berger
Mayor
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
TOWN CLERK
TOWN OF TIBURON
Dear Mr. Berger
As you know, each of the 11 incorporated cities and towns in Marin County has an appointment
to the County Commission on Aging, which also has ten seats appointed by the Board of
Supervisors.
The term of your appointee, Allan Bortel, is up as of June 2005, We would appreciate your City
Council re-appointing or selecting another resident to sit on the Commission,
In making appointments for this seat, the Council should be aware of State and Federal laws
and regulations that require the following membership composition of advisory councils to Area
Agencies on Aging:
. A majority of persons 60 years of age or older;
. Service providers and consumers;
. Members who reflect the geographic, racial, economic, and social complexion of the
planning and service area they represent.
.
The current composition of the Commission on Aging (23 members) includes 16 members over
the age of 60, seven members under 60, and service providers and consumers.
Enclosed is a Responsibility Statement, which describes the roles and responsibilities of our
Commissioners.
We would appreciate confirmation of your City's appointment at the earliest possible date, If
you have any questions, please do not hesitate to call me,
Sincerely,
IJu.JL{i:u+so
Nick Trunzo
Interim Director
Enclosure
NT /sv
/
.
cc: Diane Crane lacopi
Town Clerk
. Revised 5/91
.
.
RESPONSIBILITY STATEMENT
MEMBER, COMMISSION ON AGING
DEFINITION:
Appointed position, by Board of Supervisors or local City Council, to serve as one of
2~ voluntary advisors to the Board of Supervisors 'onissuesaffectingthe elderly of Marin
County. the Commission on Aging is a federally mandated advisory council to the Board
of Supervisors, which serves as the policy-making board of the Area Agency on Aging
within County government.
The Commission on Aging is also designated by the State as the local long term care
lead agency and project review body, and as the local Adult Day Health Care Planning
Council.
SKILL LEVEL AND FUNCTION:
Appointed Commissioners are expected to have an active interest in and a willingness
to become knowledgeable about the needs and concerns of Marin's elderly residents,
whether living in their own homes or in institutions, and those caring for them in the
community in which they live.
According to the statement of purpose in the by-laws, the Commission shall:
1. Provide information about attitudes, needs, and opinions of the elderly to
the Board of Supervisors and the Area Agency on Aging staff.
2. Advise on the development and implementation of the Annual Area Plan
in conformity with State and Federal regulations.
3. Serve as a forum and a strong advocate; provide leadership for the elderly.
4. Hold public meetings on the Area Plan, on the needs and priorities of the
elderly, and recommend programs to the Board (Board of Supervisors) for
funding.
5.
Advise the Area Agency on Aging Board on allocations of funds, and on
legislation affecting policies pertinent to the elderly.
.
6. Serve as a source of community education pertaining to the needs and
programs for the aging.
7. Consult and maintain contact with special groups which have responsibilities
related to the older American.
REQUIREMENTS OF MEMBERSHIP:
1. Serve a three-year term.
2. Attend monthly meetings of the Commission which are held on weekdays,
during daytime hours. No member may be absent without a valid reason
for more than three consecutive meetings.
3. Be willing to abide by Roberts' Rules of Order.
4.
Members who receive compensation from or have a fiduciary interest in
any prograrfi funded by the Area Agency on Aging must abstain from voting
on funding of that particular program.
.
5.
Serve on at least one standing committee or task force which may meet
monthly or more often, depending on need.
6. Be willing to participate with staff in annual contract review and monitoring
of projects to assure efficient services to Marin's elderly.
7. If an appointee is a City representative, a commitment must be made to
report to the appointee's City Council on an annual basis regarding the
activities of the Commission.
wp:COA-RESP.STI
.
I
rage 1 01 1
Diane Crane lacopi
. From: allan bortel [inverness@earthlink,net]
Sent: Thursday, June 23,20059:31 PM
To: Diane Crane lacopi
Subject: Re: Commission on Aging
.
.
I guess that I only expressed an interest orally....,so you shall get a letter
from me....or is this email sufficient? I have a lot to accomplish in the next
three years on the Commission. thanks, allan
At 02: 17 PM 6/23/2005, you wrote:
Hi, Allan,
I am scheduling your reappointment to the Commission on Aging per the letter from Interim Director
Nick Trunzo, I received one telephone inquiry concerning the position but nobody actually applied,
You are eligible for reappointment and are given first consideration,
Because I just returned from vacation I cannot recall whether you sent me a letter or e-mail
expressing your interest in reappointment. I know we discussed it but I would also need something
in writing, '
Many thanks!
Diane Crane lacopi
Tiburon Town Clerk
06/24/2005
ALLAN G. BORTEL
8 Corte Palos Verdes
Tiburon, CA 94920
fD) ~~~~W~ rm
IJ1] J U N 2 7 2005 ill)
TOWN CLERK
TOWN OF TIBURON
Dear Tiburon Town Council:
I am seeking reappointment as Tiburon's representative on the Marin
County Commission on Aging.
Over the last three years I have had the opportunity to become
knowledgeable about the needs of seniors in our increasingly older county.
As you know, the Commission's role is advocacy and informational~ but it
also officially recommends to the Board of Supervisors how some $1.2
million in Older Americans Act funds are spent for the needs of seniors,
mostly those of low income, in Marin-for nutrition, legal aid, senior hotline
and infovan, etc. In all, some 17 agencies receive these funds.
For nearly two years I have headed the Commission's Housing and
Transportation Committee. In this role I have testified on behalf of senior
housing before the County Planning Commission and Board of Supervisors.
In addition, my committee held hearings leading to the Marin Housing
Authority's establishment of a "house sharing" program.
There is much to do in the areas of both transportation (e.g there are no
paratransit taxis based in Marin, but we are working toward that end) and
affordable assisted living. In fact, the Planning Commission is now
considering a zoning proposal for another Redwoods type facility at St.
Vincent's, which we have been advocating.
I have been asked to continue to chair the Housing and Transportation
Committee by the new 2-year chair of the Commission and look forward to
serving in that capacity if I am reappointed by the Council.
s~~
Allan Bortel
TOWN COUNCIL
J~'EOMAIL' G
MEETING DATE (p - ~9-~.r-
.-
. Town of Tiburon
STAFF REPORT
AGENDAITEM ~
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL
FROM: HEIDI BIGALL, DIRECTOR OF ADMINISTRATIVE SERVICES
BRIAN M. STOTT, ADMINISTRATIVE & FINANCIAL ANALYST
SUBJECT: ADOPTION OF 2005-2006 MUNICIPAL BUDGET PLAN AND
~~~~ ~A~E: ~~;;~~~:~::~~~~~~N~ . . . . . . . . . . . ~'. ,
2005-06 MUNICIPAL BUDGET PLAN
At its meeting on June 15, 2005, the Town Council reviewed the Proposed
Fiscal Year 2005-2006 Municipal Budget Plan and directed staff to bring back
the resolutions adopting the budget with the recommended changes.
The operating budget is balanced as follows:
.
Projected Revenues
Projected Expenses
$7,706,613
$7.502.894
$ 203,719
Operating Surplus
The Total Budget for the Town including all funds (operating, capital
improvement, debt service and the Redevelopment Agency) is $21,366,176.
Most importantly, the 2005-06 Municipal Budget is balanced. Once adopted,
the final document will be printed and circulated to all interested parties,
Recommended Changes from Proposed Budget
Compensation Chanaes from the Proposed Budget
The Town Council authorized several changes to the budget in the area of
salaries and benefits. Remaining consistent with the Town's Compensation
Policy, the Town desires to compensate employees competitively for similar
positions in the local market.
The Town's Compensation Policy provides pay adjustments for these
employees based on the following three factors:
.
1. Increase in the Cost of Living (COLA);
2. Job Performance (merit); and
3. Adjustment in the market for a position (equity).
Town of Tiburon
STAFF REPORT
AGENDA ITEM
.
These three factors, as well as the Town's ability to increase compensation
were taken into consideration in the recommended 5% compensation
adjustments, which will be used to trigger certain compensation adjustments
on a case by case basis. The 5% increase has been applied to each
Management and Mid-Management employee's line item in the budget, but
this does not guarantee an actual compensation adjustment for employees
but is consistent with the recently adopted Merit Pay Program that will be fully
implemented in FY 2005-06.
COLA
The Town typically uses the Consumer Price Index, SF-Bay AreaAII Urban
Wage Earners from April to April for increases to the two Town employee
represented labor unions, the Tiburon Police Officer's Association and the
Marin Association of Public Employees. For the period of April 2004 to April
2005, the increase was 2.4% and although it will not be the driving factor, it
will certainly be taken into consideration with any compensation adjustments
for Management and Mid-Management employees.
.
Merit
The Town Council recently adopted a formal Merit Pay Program for
Management and Mid-management employees. The Merit Pay Program will
be fully implemented during the next employee evaluation period in July and
this will trigger compensation adjustments at the end of the 2005-06 Fiscal
Year.
As was stated above, the proposed budget reflects an increase in each
Management and Mid-management employee's line item in the budget which
will be available for meritorious compensation adjustments, Merit is defined in
, the Town's Merit Pay Program as what is valued by the organization; it is
reflected by excellence or superior quality of work or service provided.
Equity
In addition, the Town recently adopted an Administrative Policy for
Establishing and Maintaining Management / Mid-Management Salary
Ranges. This new policy has created benchmark positions and linked other
positions using career ladders, which will guide the setting of salary ranges in
the future. The Town conducted a salary survey in June of this year and any
position's salary ranges that were found to be below the average were
adjusted to bring the salary ranges up to the average, As a reminder, salary
.
Municipal Budget Plan
June 29, 2005
2of6
;
Town of Tiburon
. STAFF REPORT
AGENDA ITEM
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ranges are ranges within which the Town has the ability to compensate
employees but an increase to any salary range does not necessarily trigger
an actual salary increase for the employee, In one case, the employee's new
salary range will trigger an automatic $41 compensation adjustment per
month due to the fact that the employee is currently near the bottom of the
pay range, However, it should be 'noted that the affected employee would
have received at least this increase based on performance alone,
Cafeteria Benefits
Since Health Insurance rates do not adjust until January 1, 2006, the Town
Council also agreed that increases to the Cafeteria Benefit amount that each
employee receives be effective January 1, 2006. Effective January 1,2006,
Management and Mid-management unrepresented employees will receive an
additional $50 per month towards cafeteria benefits.
Holiday Schedule
.
During the past three years, the Town Council has granted all non-patrol
police personn~1 an extended period of time off during the Christmas and
New Year's holiday period, Town Hall and the Corporation Yard would be
closed from December 23, 2005 through January 2, 2006.
As a reminder, employees will be required to take a 3-day furlough in
between the four holidays observed for Christmas Eve, Christmas, New
Year's Eve and New Year's Day. However, employees will not be required to
suffer compensation loss, The observance of Veteran's Day will be moved
from November 11, 2005 to December 27, 2005, the Town will provide an
additional paid day off on December 28, 2005 and each employee will be
required to use a personal vacation day on December 29,2005.
The proposed schedule is reflected below,
Municipal BUdget Plan
June 29, 2005
3of6
~
Town of Tiburon
STAFF REPORT
AGENDA ITEM
.
Capital Changes to the Proposed Budget
There are also two capital improvement projects totaling an increase of
$110,800 which have been added to the proposed budget since the
introduction of the Proposed Fiscal Year 2005-06 Budget. The Fiscal Year
2005-06 CIP Budget now totals $12,202,727.
The Town was recently notified that we were awarded a $9,559 MTC P-TAP
Grant to perform an updated pavement management program condition
assessment with a total local match of $1 ,241 required. The CIP budget
reflects an increase of $10,800 for the project with the $1,241 required local
match being funded from the Town's Street Impact Fund.
The CIP Budget also reflects the addition of $100,000 in Planning Area
Mitigation Funds for the Town's contribution to the Highway 101 I East
Blithedale Off ramp. A funding agreement will be brought before the Council
to authorize the funding in the near future, but will be earmarked in the budget
in anticipation of this.
Attached Budget and Compensation Resolutions
.
The attached resolution (Exhibit 1) reflects the Final Budget for Fiscal Year
2005-06, Exhibit 2 and Exhibit 3 memorialize these compensation changes
for Management and Mid-managementlNon-represented employees
respectively.
FY 2005-06 APPROPRIATION LIMIT
Proposition 4, approved by California voters in November 1979, established
and defined annual revenue appropriation limits on all government entities.
Proposition 4 became effective in Fiscal Year 1980-81; however the .
calculations to determine the annual limit are carried from a Fiscal Year 1978-
79 base, Proposition 4 was modified in 1990 with the passage of Proposition
111, which slightly changes the annual adjustment factors, further
identification of the types of expenditures which are excluded from the limit,
and provisions for the exclusion of emergency expenditures from the limit.
Implementation legislation provides that the Town Council shall, at a regularly
scheduled meeting, establish by resolution the amount of appropriation
subject to limitation. The State is to be provided with informational forms with
the filing of the Annual Statement of Financial Transactions no later than
ninety days after the start of the fiscal year.
.
Municipal Budget Plan
June 29, 2005
4of6
..
Town of Tiburon
. STAFF REPORT
AGENDA ITEM
The appropriations limit is the calculated dollar amount which limits the
Town's ability to receive and expend proceeds of taxes. Such revenues
include: Property Taxes, ERAF rebates, Sales Taxes, Real Property Transfer
Taxes, Transient Occupancy Taxes, Business License Taxes, State Motor
Vehicle Fees, Off-Highway Taxes, certain rental income, other revenues and
rebates (excluding Redevelopment Agency Fees), a share of Investment
Earnings, and transfer of funds from other funds into reserves of the General
Fund.
The limit is calculated by adjusting the previously adopted limit by factors
which include: (1) the State of California Per Capita Income Growth, and (2)
the Town's Population Grown. Both these figures are provided by the State
, Department of Finance. The limit is further adjusted if cities bear the costs of
legislated fees for the transfer of responsibility. The County, through SB
2335, established fees for the collection of property taxes and for booking
prisoners.
The calculation for the Town of Tiburon's Appropriations Limitation for FY
. ' 2005-06 is illustrated on the following page:
Gann Limit Calculation - FY 2005-06
Amount
1, Previously established limit, July 1, 2003
2, Adjustment Factors
Per capital personal income
Population growth
$5,314,106
5,26%
- ,0037%
3, Multiplier, for adjustment to limit
4, Subtotal new limit
5, Add: legislated pass-through fees
County property tax collection
County Booking Fees
$37,000
15,000
6, Revised limit, July 1, 2004
$5,645,421
.
Municipal Budget Plan
June 29, 2005
5 of 6
Town of Tiburon
STAFF REPORT
AGENDA ITEM
.
Once the Appropriations Limitation has been determined for the upcoming
fiscal year, staff must then determine the amount of revenues that Town
expects to receive that are subject to the limit. The table below illustrates
revenues that are subject to the Gann Limit.
2005-06 Appropriations Subject to Gann Limit
Amount
A. Proceeds of Taxes $4,880,381
8, Exclusions -0-
C, Appropriations subjept to Limitation $4,880,381
D, Current Year Limit (from above) $5,645,421
E, Over (Under) Gann Limit ($ 765,040)
F, Percent Over Limit -15,68% .
Any additional revenues received during FY 2005-06 that are considered
"proceeds of taxes" will reduce the amount the Town is currently under the
Gann Limit.
Recommendation
It is recommended that the Town Council hold a public hearing and after due
consideration, approve the attached resolutions:
1, Adopting the Municipal Budget Plan for FY 2005-2006;
2, Adopting a Revised Management Recognition and Incentive
Compensation Program;
3, Adopting a Revised Mid-Management, Professional and Confidential
Employee Recognition and Incentive Compensation Program; and
4. Establishing the Town's Appropriation Limit for FY 2005-2006.
Exhibits
.
Municipal Budget Plan
June 29, 2005
6of6
.
.
.
EXHIBIT NO...l-
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF
THE TOWN OF TIBURON ADOPTING A MUNICIPAL
BUOGET PLAN FOR THE TOWN OF TIBURON AND
THE TIBURON REDEVELOPMENT AGENCY FOR
THE FISCAL YEAR ENDING JUNE 30. 2005
WHEREAS, the Town Council conducted a Public Hearing concerning the
proposed Municipal Budget Plan for fiscal year 2006 at it regularly scheduled meeting of
Wednesday, lime 15,2005 and on Wednesday June 29, 2005; and '
WHEREAS, the Town Council now finds that the proposed Municipal Budget
Plan, as estimated, provides for all appropriate municipal purposes and services with
current fund(s) and resources and estimated revenues for fiscal year 2006; and
NOW, THEREFORE, BE IT RESOLVED; that the proposed Municipal Budget
Plan appropriates revenues and other sources of funds for expenditures associated with
operations, capital outlays, capital improvements, debt services, and the Redevelopment
Agency in the following amounts:
Section 1. Operating Budget Program - The proposed Plan has sufficient
resources to finance the planned expenditures:
$7,706,613
7,502,894
$ 203,719
Section 1 a. Operation Revenue Appropriation - Estimated Revenues and
Sources of Funds for fiscal year 2006
GENERAL FUND
Propertv Taxes $2,317,000
Other Taxes 1,116,500
Franchise Fees 380,000
Fines & Forfeitures 222,500
Investment Earnings 150,500
Intergovernmental & Agency 643,600
Licenses & Permits 892,250
Charges for Services 313,200
Other Revenues 196,500
Subtotal General Fund Revenues $6,232,050
OTHER FUNDING SOURCES
Employee Compensated Leave $ 41,500
3,850
51,300
945,000
67,975
242,938
100,000
22,000
Total Revenues & Sources
$7706613
Section 1 b, General Fund Expenditures Appropriation - Planned
Department expenditures for fiscal year 2006:
AMOUNT
ADMINISTRATION
Town Attorney $ 208,045
Town Administration , 1,102,026
Administration Building 48,500
Non-Departmental , 1,000,150
Legislative 73,100
COMMUNITY DEVELOPMENT
Planning & Design Review $ 478,747
Building Inspection 566,809
Advance Planning 70,355
POLICE
Police Department $2,532,510
Police Building 59,900
PUBLIC WORKS
Administration $ 427,604
Streets Maintenance 450,773
Parks Maintenance 315,975
Street & Signal Light Maintenance 46,000
Corporation Yard 100,400
Cypress Hollow 22,000
Total Expenditures: $7.502.894
.
.
.
.
Section 2. Capital Improvement Program - Sources of Funding for Planned Streets,
Drainage and Community Development Improvements in fiscal year 2006:
.
SOURCES PROJECTS
L vford Cove Assessment District $4,223,936
Del Mar Assessment District 4,720,000
Infrastructure & Facility Fund 223,000
Circulation System Improvement Fund 75,000
Gas Tax Fund 230,000
General Fund Streets & Drainage Reserve 335,000
Marsh Restoration Fund 45,000
Drainage Impact Fund 50,000
Parks In-Lieu Fund 56,500
Plavground Improvement Fund 78,000
Public Art Fund 250,000
Street Impact Fund 646,239
Hazmat Mitigation Grant 50,000
MTC Regional Bicycle Pedestrian Grant 520,291
Safe Routes to School Grant 175,000
General Fund 158,200
PW Corporation Yard Improvement Fund 100,000
Developer Contributions 5,000
CIWMB Grant 12,000
Per Capita/RZH Grants 90,000
Planning Area Mitigation Fund 100,000
MTC P- T AP Grant 9,561
Traffic Congestion Relief Fund 50,000 .
STREETS
Resurfacing $ 675,000
Engineering & Administration 260,800
Traffic Safety Improvements 860,291
Subtotal Streets Improvements $1,796,091
DRAINAGE
CCTV Equipment Condition Assessment $ 45,000
Culvert Rehabilitation/Replacement 100,000
Paradise Drive @ Pt. Tiburon Flap Gate Repair 20,000
Railroad Marsh Improvements 45,000
Shoreline Park Outfall 30,000
Contingency Repairs 10,000
Catch Basin/Inlet Repairs 20,000
Construction Inspection 40,000
Preparation of Plans / Specification 30,000
Subtotal Drainage Improvements $ 340,000
.
COMMUNITY DEVELOPMENT
Lyford Cove Utility Undergrounding $ 4,223,936
Del Mar Valley Utility Undergrounding 4,720,000
Sidewalk & Curb Ramps (ADA Compliance) 20,000
Blackie's Pasture Pedestrian Bridge Repair 3,000
South of Knoll Swing Set Replacement 3,000
South of Knoll Tot Lot Renovation 100,000
Fountain Plaza Public Art Proiect 270,000
MUP Improvements (ii2 A venida Miraflores 100,000
MUP Concept Plan Development 2,500
Elephant Rock Pier Rail Foundation 20,000
ADA Transition Plan 25,000
Replace Tiburon Blvd, Street Light Shades 35,000
Public Works Corporation Yard Master Plan 100,000
Rehabilitate Ferry Plaza Wood Cap Rails 5,000
Install Pet Waste Bag Dispensers in Town Parks 7,500
Install Tr~e Guards on Main Street 1,200
Install Permanent Restroom (ii2 South of Knoll 78,000
Bus Shelter on Tiburon Blvd (ii2 Ned's Way 6,500
Bench Replacement (ii2 Shoreline Park 18,000
Police Building Improvements 30,000
Town Hall Exterior Painting 50,000
Install Solar Panels on Town Hall 143,000
Zelinsky Landing Sign 5,000
MUP Enhancements with MMWD Proiect 50,000
Gilmartin! Atkinson Fire Road Repairs 50,000
Subtotal Community Development Projects $10,066,636
Total Capital Improvements $12,202,727
.
.
.
.
.
.
Section 3. Debt Service Program - Planned Debt Service and related expenses for
special assessment, community facilities districts, and general obligation bond issues of
the Town are as previously planned:
BOND ISSUE AMOUNT
Gilmartin Drive Refunding District $ 209,010
Hillhaven Undergrounding Assessment District 11,200
Linda Vista Undergrounding District 8,250
Main Street Assessment District 39,600
Pt. Tiburon Community Facilities District 128,210
Stewart Drive Assessment District 110,200
Tiburon Public Facilities Financing Authority 251,925
Via Capistrano Assessment District 18,260
Lyford Cove Assessment District 282,900
Del Mar Valley Assessment District 393,200 ,
Total Debt Service $1,452,755
Section 4. Redevelopment Agency Budget Plan - The following tables provide
overview information for t~e general increment and Housing Set-Aside Funds of the
Redevelopment Agency in fiscal year 2006.
Redevelopment General Increment Fund:
AMOUNT
Revenues & Sources $ 4,000
Expenditures 4,500
Total Operating Net ($ 500)
Redevelopment Agency Housing Set-Aside Fund:
AMOUNT
Revenues & Sources $ 12,500
Expenditures 5,500
Total Operating Net $ 7,000
IT IS FURTHER RESOLVED, that the Town Manager may make adjustments and
activities within the budget provided that no increase or diminishment in salaries result
other than that provided by the Town's Personnel System and Master Salary Program, or
as authorized by the Town Council, and provided that no expenditure or encumbrance
contingent on contract agreement, or other engagement requiring approval ofthe Town
Council shall be made until such contract is first approved by the Town Council.
.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
ofTiburon on ,2005, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MILES BERGER, MAYOR
ATTEST:
DIANE CRANE-IACOPI, TOWN CLERK
.
.
.
.
.
EXHIBIT NO. 2.
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON REPEALING RESOLUTION
NO. 29-2004 AND ADOPTING AN AMENDED MANAGEMENT
RECOGNITION AND INCENTIVE COMPENSATION PROGRAM
WHEREAS, in January 1979, the Town Council established and adopted a Management
Recognition and Incentive Compensation Program, in order to promote the development of a
strong, more effective management team and a means of recognizing outstanding man;lgement
performance in all public service areas; and
WHEREAS, the Management Recognition and Incentive Compensation program
enhances the professional growth, motivation, and loyalty of management employees and
promotes a consistently higher level of service to the public; and
WHEREAS, the Town Council has updated and amended the Management Recognition
and Incentive Compensation Program on several occasions, most recently in 2004 by the
adoption of Resolution No. 29-2004; and
WHERAS, the Town of Tiburon management employees are defined to mean the
following positions:
Town Manager
Town Attorney
Chief of Police
Director of Administrative Services
Director of Community Development
Director of Public Works/Town Engineer
NOW, THEREFORE, BE IT RESOLVED that the Town Council ofthe Town of
Tiburon does hereby repeal Resolution No. 29-2004 and all predecessor versions of the
Management Recognition and Incentive Compensation Program and adopts the following
amended Management Recognition and Incentive Compensation Program:
SECTION 1. SALARIES
Effective July 1, 2005 salary ranges for management positions shall be:
Town Attorney
Chief of Police
Director of Administrative Services
Director of Community Development
Director of Public Works/Town Engineer
$8,447 - $10,559
$8,351 - $10,439
$6,830 - $8,538
$6,901 - $8,626
$7,482 - $9,352
Page 1
\
SECTION 2, SALARY ADJUSTMENTS
The Town Manager shall submit annually to the Town Council recommended salary .
ranges for management employees, These ranges will be based upon the Compensation
Policy adopted by the Town Council. Movement through the salary ranges will be based
,upon merit following a comprehensive written performance evaluation by the Town
Manager.
SECTION 3, BENEFITS AND INSURANCE
Effective January 1, 2006, the Town shall contribute $1,000 per month towards a
management employee's fringe benefit coverage. If the full sum specified is exceeded for
group insurance of a given employee, then that employee shall pay the balance of the
monthly cost via a payroll deduction from the first two payrolls ofthe month. If the full
sum specified is not used for the group insurance cost of a given employee, then the
employee shall have the option to have that amount deposited into one ofthe Town's
Deferred Compensation Plans in the employee's name or for the purchase of Additional
Retirement Service Credit through CaIPERS, so long as the option continues to be
provided by Ca1PERS.
Retirement - For Miscellaneous Members of the Public Employee's Retirement System,
the Town of Tiburon shall provide management employees the PERS 2% @ 55
retirement benefits, with highest single year calculation and service credit for unused sick
leave. For Local Safety Members ofthe Public Employee's Retirement System the Town
shall provided management employees the PERS 3% @ 55 retirement benefit, average
three highest years calculation, and service credit for unused sick leave, The Town shall
contribute on behalf of management employees the full employer and employee
retirement contributions,
,
.
Medical Insurance - The Town of Tiburon offers management employees and their
dependents medical/hospital insurance coverage. A qualified employee may choose from
the plans offered through the Public Employees Retirement System Health Benefits
Division for medical/hospital insurance coverage, Such insurance is mandatory for
covered employees unless they can demonstrate compliance with other coverage,
Dental Insurance - The Town ofTiburon offers management employees and their
dependents a dental plan. Such insurance is mandatory for all qualified employees unless
they can demonstrate compliance with other coverage,
Life Insurance - The Town ofTiburon offers management employees a life insurance
policy equal to one year's salary, not to exceed $95,000. Such insurance is mandatory for
all full-time employees, If the mandatory amount is not exceeded, the Town of Tiburon
offers management employees additional life insurance up to a combined total of no more
than $95,000. Participation is optional.
Disability Insurance - The Town of Tiburon offers management employees long term
disability insurance. Such insurance is optional, except for the position of Chief of
Police.
.
Page 2
.
Long Term Care - The Town ofTiburon offers management employee a long-term care
policy. Participation is optional.
Deferred Compensation Plan - The Town ofTiburon offers a deferred compensation plan
to management employees. Such monies deposited would become tax-deferred and
would be subject to income taxation in the year they are withdrawn from the deferred
compensation plan. Participation is optional.
IRS Section 125 Plan - The Town ofTiburon offers management employees the ability to
participate in its IRS Section 125 Plan. Participation is optional.
SECTION 4, VACATION LEAVE
In recognition of the fact that many top management personnel are recruited from outside
the Town, that the average tenure for those management personnel is substantially more
than that of non-management personnel, and that at least three years prior experience is
required, the following vacation leave policy for management personnel shall be
implemented:
Management employees shall accumulate vacation leave in accordance with the
following vacation time entitlement:
Service Work Days
. 0-5 Years 15 Days
6-15 Years 20 Days
16+ Years 25 Days
.
Upon termination of a management employee's service with the Town, such employee
shall be paid a lump sum equivalent to his/her accrued vacation leave. Maximum
accumulation of vacation leave is 40 workdays.
SECTION 5. VACATION LEAVE CONVERSION
After one year's service with the Town, Management employees who use at least 10
working days of vacation leave, may convert into cash payment up to 50% of the total
number of vacation hours taken in a calendar year, not to exceed 10 working days.
Vacation leave conversion will be granted during the month of December each calendar
year.
SECTION 6. SICK LEAVE
Management employees shall be entitled to accrue one working day of sick leave with
pay for each month or major fraction thereof. Sick leave may be accrued by management
employees without a maximum limitation.
Page 3
SECTION 7, SICK LEAVE PAY OFF
Management employees hired prior to July 1, 2001, or if their employment contract states
differently, may receive cash equivalent compensation of 50% of their accrued sick leave,
up to a total of 60 days, if the following conditions are met:
.
a, The employee files for a service retirement from the Town, or
b. The employee voluntarily separates from the Town and has at least 15 years of
service with the Town.
For management employees hired after July 1,2001, may accrue unlimited sick leave
with no' option for "cashback" benefits.
SECTION 8. HOLIDAYS
The Town agrees to provide management employees the following holidays:
New Year's Day
Martin Luther King Day
President's Day
Memorial Day
Independence Day
Labor Day
Veterans Day
Thanksgiving Day
January 1
Third Monday in January
Third Monday in February
Last Monday in May
July 4
First Monday in September
December 27
Fourth Thursday in November
Friday after Thanksgiving
December 24
December 25
December 31 '
.
Christmas Eve
Christmas Day
New Year's Eve
When a holiday falls on a Saturday, the preceding Friday shall be observed. However, if a
holiday falls on a Saturday and the preceding Friday is also a holiday, the Town Manager
may designate the preceding Thursday or following Monday to observe the holiday,
When a holiday falls on Sunday, the following Monday shall be observed. However,
when a holiday falls on a Sunday and the following Monday is also a holiday, the Town
Manager may designate the preceding Friday or following Tuesday to observe the
holiday. .For management employees who work an alternative work schedule and a \
holiday falls on his/her regular day off, he/she shall select either the preceding or
following regular working day off. Effected employees shall provide the Town Manager
with at least one week's notice as to which day they will observe as a holiday.
SECTION 9. FURLOUGH
All represented employees will be required to take a 3-dayfurlough. The days
furloughed will be December 28 and December 29, 2005. Tiburon Town Hall will be
closed from December 23,2005 through January 2, 2006.
.
Page 4
.
.
.
However, employees may not suffer compensation loss. The Town will provide a one-
time paid day off for the December 28, 2005 day and the employee will be required to
take a vacation day for the December 29,2005 furloughed day.
Proposed Schedule:
Friday, December 23,2005
Monday, December 26, 2005
Tuesday, December 27,2005
Wednesday, December 28,2005
Thursday, December 29,2005
Friday, December 30, 2005
Monday, January 2, 2005
SECTION 1 O. ADMINISTRATIVE LEAVE
Christmas Eve Holiday
Christmas Holiday
Veterans Day Observance
Furlough Day #1 (additional day off)
Furlough Day #2 (vacation day)
New Years Eve Holiday
New Years Holiday
In recognition ofthe long hours required to perform at the management level, including
attendance at numerous meetings outside normal working hours, the following
Administrative Leave policy shall be implemented:
Management employee may receive up to ten days administrative leave annually, to be
awarded at the discretion of the Town Manager. Administrative Leave shall be taken in
one-day increments.
SECTION 11. DINNER ALLOWANCE
All management employees who live more than 10 miles from Town and who are
required to attend night meetings or work after office hours beyond 7:00 P.M. may be
reimbursed in an amount not to exceed $20.00 for the purchase of dinner for that night.
This allowance applies to management employees who reside outside a ten-mile radium
ofthe Town. Employee reimbursement is subject to the approval ofthe Town Manager
and must be accompanied by a restaurant receipt, which shall include the amount, date,
meeting or purpose, and the employee's name.
SECTION 12. TERMINATION ALLOWANCE
In order to foster job security within a professional climate, management employees will
be entitled to severance pay when they are terminated from Town service. However;
such employee must be in the employ of the Town for at least three (3) years, and such
termination is not for cause or for reasons listed in Government Code Section 19572, the
Town's Personnel Rules & Regulations, Section 6, or any employee who voluntarily
resigns from Town Service for personal reasons.
Page 5
1l.nless otherwise noted in an Employment Agreement, Management employees shall be
covered by the following termination allowance schedule:
This severance pay is in addition to any accrued vacation leave, unused at the time of
termination.
SECTION 13. VEHICLE USAGE/ALLOWANCE
Management employees, to a far greater extent that other Town employees, are required
to travel throughout the Town, County, and Bay Area to fulfill their job requirements.
This travel is frequently required outside of normal working hours. In recognition of this
employment requirement, the Town shall provide either the use of a Town vehicle or an
automobile allowance, as provided in the Town budget. Use of a Town vehicle shall be
in accordance with the Town's Administrative Policies and Procedures and is not
intended for private use.
SECTION 14. TUITION REIMBURSEMENT
In order to promote continued development of skills, knowledge, and abilities among .
management employees, the Town ofTiburon shall reimbursement the costs of tuition,
books and fees at the rate of the California State University system. Employees must
receive prior approval of the Town Manager and submit certified transcripts with the
evidence of a grade of "C" or better from an accredited college or university and submit
bona fide receipts to qualify for tuition reimbursement.
SECTION 15. PROFESSIONAL MEMBERSHIP FEES
Most management personnel are expected to maintain membership in appropriate
professional organizations. These memberships serve to acquaint the Town with current
programs and procedures in these professional areas by means of publications and
specific activities, The Town will include the cost of these membership fees in the
respective departmental budgets.
SECTION 16. RETIRED EMPLOYEE'S MEDICAL ALLOWANCE
The Town ofTiburon will make contributions toward a retired employee's medical
insurance plan based upon the following conditions:
a, Employee must retire directly from employment with the Town of Tiburon and
apply to PERS for retirement benefits.
.
Page 6
.
.
.
b. The retiree's medical insurance allowance is fixed and capped at the Kaiser single
rate that is in effect at the time of the employee's retirement.
c,
The Town's contributions rate is based on the following formula:
Percent of Kaiser
Single Rate
Years of Consecutive
Service to Town
50%
75%
100%
15 Years
20 Years
25 Years
Such coverage is not extended to employee's spouse or other dependents,
NOW, THEREFORE, BE IT-FURTHER RESOLVED that the provisions ofthis
resolution shall supersede any other previous rules and resolutions of the Town of Tiburon which
may be in conflict herewith.
PASSED AND ADOPTED at a regular meeting ofthe TownCouncil of the Town of
Tiburon on , 2005, by the following vote:
ATTEST:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MILES BERGER
Mayor
DIANE CRANE-IACOPI
Town Clerk
Page 7
EXHIBIT NO. .,
RESOLUTION NO,
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON REPEALING RESOLUTION NO, 30-2004 AND ADOPTING AN
AMENDED MID-MANAGEMENT, PROFESSIONAL & CONFIDENTIAL EMPLOYEES
RECOGNITION AND INCENTIVE COMPENSATION PROGRAM
.
WHEREAS, in January 2002, the Town Council established and adopted a Mid-
management Recognition and Incentive Compensation Program in order to attract and retain
professional, competent aiJ.d qualified employees to carry out the Town's public service mission,
and
WHEREAS, such a program enhances the professional growth, motivation, and loyalty of
mid-management, professional and confidential employees and promotes a consistently higher
level of service to the public, and
WHEREAS, the Town Council has updated and amended the Mid-management
Recognition and Incentive Compensation Program most recently in 2004 by the adoption of
Resolution No. 30-2004; and
WHERAS, the Town of Tiburon mid-management, supervisory and confidential
employees are defined to include the following positions:
Administrative & Financial Analyst
Assistant Superintendent of Public Works
Associate Planner
Deputy Director of Public Works
Police Captain
Planning Manager
Records Management Coordinator
Advance Planner
Assistant Planner
Building Official
Information Technology Coordinator
Police Secretary
Project Coordinator
Town Clerk
.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon does hereby repeal Resolution No. 30-2004 and all predecessor versions of the Mid-
Management, Profession & Confidential Employees Recognition and Incentive Compensation
Program and adopts the following amended Mid-Management, Profession & Confidential
Employees Recognition and Incentive Compensation Program:
SECTION 1. SALARIES
Effective July 1, 2005 salary ranges for qualified positions shall be:
Administrative & Financial Analyst
Advance Planner
Asst. Supt. of Public Works
Assistant Planner
Associate Planner
$4,440 - $5,550
$4,984 - $6,229
$4,785 - $5,981
$3,662 - $4,578
$4,070 - $5,087
.
Page 1
.
.
.
Building Official
Deputy Director of Public Works
Information Technology Coordinator
Police Captain
Police Secretary
Planning Manager
Project Coordinator
Records Management Coordinator
Town Clerk
$5,882 - $7,353
$5,629 - $7,037
$5,123 - $6,404
$6,681 - $8,351
$3,617 - $4,521
$4,984 - $6,229
$4,489 - $5,611
$3,778 - $4,722
$4,197 - $5,247
SECTION 2. SALARY ADJUSTMENTS
The Town Manager shall submit annually to the Town Council recommended salary
ranges for mid-management, professional and confidential employees. These ranges will
be based upon the Compensation Policy adopted by the Town Council. Movement
through the salary ranges will be based upon merit following a comprehensive written
performance evaluation by the employee's supervisor.
SECTION 3. BENEFITS AND INSURANCES
Effective January 1, 2006, the Town shall contribute $950 per month towards a mid-
management employee's fringe benefit coverage. If the full sum specified is exceeded for
group insurance of a given employee, then that employee shall pay the balance of the
monthly cost via a payroll deduction from the first two payrolls ofthe month. Ifthe full
sum specified is not used for the group insurance cost of a given employee, then the
employee shall have the option to have that amount deposited into one ofthe Town's
Deferred Compensation Plans in the employee's name or for the purchase of Additional
Retirement Service Credit through CaIPERS, so long as the option continues to be
provided by CaIPERS.
Retirement - For Miscellaneous Members of the Public Employee's Retirement System,
the Town ofTiburon shall provide PERS 2% @ 55 retirement benefits, with highest
single year calculation and service credit for unused sick leave. For Local Safety
Members ofthe Public Employee's Retirement System the Town shall provided 3% @ 55
retirement benefit, average three highest years calculation, and service credit for unused
sick leave. The Town shall contribute the full employee employer retirement
contributions.
Medical Insurance - The Town ofTiburon offers its employees and their dependents
medical/hospital insurance coverage. A qualified employee may choose from the plans
offered through the Public Employees Retirement System Health Benefits Division for
medica1/hospital insurance coverage. Such insurance is mandatory for covered
employees unless they can demonstrate compliance with other coverage,
Page 2
Dental Insurance - The Town of Tiburon offers qualified employees and their dependents
'a dental plan. Such insurance is mandatory for all qualified employees unless they can
demonstrate compliance with other coverage,
.
Life Insurance - The Town of Tiburon offers qualified employees a $25,000 life
insurance policy. Such insurance is mandatory for all full-time employees. The Town of
Tiburon offers qualified employees additional life insurance above the mandatory
$25,000 policy, up to a combined total of no more than $95,000. Participation is
optional.
Disability Insurance - The Town ofTiburon offers qualified employees long term
disability insurance. Such insurance is optional, except for the position of Lieutenant.
Long Term Care - The Town ofTiburon offers covered employee a long-term care
policy. Participation is optional.
Deferred Compensation Plan - The Town ofTiburon offers a deferred compensation plan
to qualified employees. Such monies deposited would become tax-deferred and would be
subject to income taxation in the year they are withdrawn from the deferred
compensation plan. Participation is optional.
IRS Section 125 Plan - The Town of Tiburon offers covered employees the ability to
participate in its IRS Section 125 Plan. Participation is optional.
SECTION 4, VACATION LEAVE
.
Mid-management, professional and confidential employees shall accumulate vacation
time in accordance with the following vacation entitlement schedule:
Service
Work Days
0-5 Years
6-10 Years
11+ Years
12 Days
18 Days
20 Days
Upon termination of a covered employee's service with the Town, such employee shall be
paid a lump sum equivalent to hislher accrued vacation leave. Maximum accumulation
of vacation leave is 35 workdays.
SECTION 5. VACATION LEAVE CONVERSION
After one year's service with the Town, qualified employees who use at least 10 working
days of vacation leave may convert into cash payment up to 50% of the total number of
vacation hours taken in a calendar year, not to exceed 10 working days. Vacation leave
conversion will be granted during the month of December each calendar year.
.
Page 3
.
.
.
SECTION 6, SICK LEAVE
Mid-management, professional and confidential employees shall be entitled to accrue one
working day of sick leave for each month or major fraction thereof. Sick leave may be
accrued by qualified employees without a maximum limitation.
SECTION 7. SICK LEAVE PAY OFF
Mid-management, professional and confidential employees hired prior to July 1, 2001
may receive cash equivalent compensation of 50% of their accrued sick leave, up to a
total of 60 days, if the following conditions are met:
a. The employee files for a service retirement from the Town, or
b, The employee voluntarily separates from the Town and has at least 15 years of
service with the Town.
For employees hired after July 1, 2001, in the mid-management, professional or
confidential positions, they may accrue unlimited sick leave with no option for
"cashback" benefits.
SECTION 8. HOLIDAYS
The Town shall provide mid-management, professional and confidential employees the
following holidays:
New Year's Day
Martin Luther King Day
President's Day
Memorial Day
Independence Day
Labor Day
V eterans Day
Thanksgiving Day
January 1
Third Monday in January
Third Monday in February
Last Monday in May
July 4
First Monday in September
December 27
Fourth Thursday in November
Friday after Thanksgiving
December 24
December 25
December 31
Christmas Eve
Christmas Day
New Year's Eve
When a holiday falls on a Saturday, the preceding Friday shall be observed, However, if a
holiday falls on a Saturday and the preceding Friday is also a holiday, the Town Manager
may designate the preceding Thursday or following Monday to observe the holiday.
When a holiday falls on Sunday, the following Monday shall be observed. However,
when a holiday falls on a Sunday and the following Monday is also a holiday, the Town
Manager may designate the preceding Friday or following Tuesday to observe the
holiday. .For mid-management employees who work an alternative work schedule and a
holiday falls on his/her regular day off, he/she shall select either the preceding or
Page 4
following regular working day off. Effected employees shall provide their direct
supervisor with at least one week's notice as to which day they will observe as a holiday,
.
SECTION 9, FURLOUGH
All represented employees will be required to take a 3-day furlough. The days
furloughed will be December 28 and December 29,2005. Tiburon Town Hall will be
closed from December 23,2005 through January 2, 2006.
However, employees may not suffer compensation loss. The Town will provide a one-
time paid day off for the December 28, 2005 day and the employee will be required to
take a vacation day for the December 29,2005 furloughed day.
Proposed Schedule:
Friday, December 23,2005
Monday, December 26, 2005
Tuesday, December 27,2005
Wednesday, December 28, 2005
Thursday, December 29, 2005
Friday, December 30, 2005
Monday, January 2,2005
Christmas Eve Holiday
Christmas Holiday
Veterans Day Observance
Furlough Day #1 (additional day off)
Furlough Day #2 (vacation day)
New Years Eve Holiday
New Years Holiday
.
SECTION 1 O. ADMINISTRATIVE LEAVE
In recognition ofthe long hours required to perform at the mid-management and
professional level, including attendance at numerous meetings outside normal working
hours, the following Administrative Leave policy shall be implemented.
Each exempt mid-management, professional or confidential employee may receive up to
ten days administrative leave annually, to be awarded at the discretion of the Town
Manager. Administrative Leave shall be taken in one day increments.
SECTION 11. DINNER ALLOWANCE
All mid-management, professional and confidential employees who live more than 1 0
miles of Town and who are required to attend night meetings or work after office hours
beyond 7 :00 P .M, may be reimbursed in an amount not to exceed $20.00 for the purchase
of dinner for that night. Employee reimbursement is subject to the approval of the Town
Manager and must be accompanied by a restaurant receipt which shall include the
amount, date, meeting or purpose, and the employee's name,
.
Page 5
.
.
.
SECTION 12. TUITION REIMBURSEMENT
In order to promote continued development of skills, knowledge, and abilities among
employees, the Town of Tiburon shall reimburse the costs of tuition, books and fees at
the rate ofthe California State University system. Employees must receive prior
approval of the Town Manager and submit certified transcripts with the evidence of a
grade of "C" or better from an accredited college or university and submit bona fide
receipts to qualify for tuition reimbursement.
SECTION 13. RETIRED EMPLOYEE'S MEDICAL ALLOWANCE
The Town of Tiburon will make contributions toward a retired employee's medical
insurance plan based upon the following conditions:
a. Employee must retire directly from employment with the Town of Tiburon and
apply to PERS for retirement benefits.
b. The retiree's medical insurance allowance is fixed and capped at the Kaiser single
rate that is in effect at the time of the employee's retirement.
c. The Town's contributions rate is based on the following formula:
Percent of Kaiser
Single Rate
Years of Consecutive
Service to Town
50%
75%
100%
15 Years
20 Years
25 Years
Such coverage is not extended to employee's spouse or dependents.
Page 6
SECTION 14. PERSONNEL RULES & REGULA TOINS
In the event any provisions ofthis Resolution contradict those included in the Town's
Personnel Rules & Regulations, the terms of this Resolution shall prevail.
.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon on , 2005, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
MILES BERGER
Mayor
ATTEST:
DIANE CRANE-IACOPI
Town Clerk
.
.
Page 7
.
.
.
EXHIBIT NO.~
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF TIBURON ESTABLISHING
AN APPROPRIATION LIMIT FOR FISCAL YEAR 2005-06
PURSUANT TO ARTICLE XIII B. OF THE CONSTITUTION
OF THE STATE OF CALIFORNIA
WHEREAS, Article XIII B. of the Constitution of the State of California provides
that total annual appropriations subject to exceed the appropriations limit of such entity
of government for the prior year adjusted for changes in the cost of living and population,
except as provides in Artic e XIII B; and
WHEREAS, pursuant to Article XIII B of the Constitution of the State of
California, the Town Council ofthe Town of Tiburon deems it to be in the best interest of
the Town of Tiburon to establish an appropriations limit for Fiscal Year 2005-06; and
WHEREAS, the previously established limit for Fiscal Year 2004-05 was
$5,314,106, and the State Department of Finance has determined that the 2004 Per Capita
Personal Income Factor is 5.26%, and the Population Change Factor is -.0037%; the
Director of Administrative Services estimates that legislated pass-through fees of the
County will be $52,000; the Director of Administrative Services ofthe Town of Tiburon
has determined that the appropriations limit in the amount of$5,645,421 shall be
established for Fiscal Year 2005-06.
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of
Tiburon that an appropriations limit in the amount of$5,645,421 is established for Fiscal
Year 2005-06 pursuant to Article XIII B of the Constitution of the State of California.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Tiburon on June 29, 2005 by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
MILES BERGER, MAYOR
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Town of Tiburon
STAFF REPORT
AGENDA ITEM f'
. . .. '. :-.... '. 'It . . . .. '. '. . -,. . . . . . . ...,......,.' .,. It . .' '. _. '. .. .' . . . . . ., '. '. . . . .' .' .
TO:
Honorable Mayor and Members of the Town Council
FROM:
Heidi Bigall, Director of Administrative Services
SUBJECT:
Authorize Issuance of Bonds - Del Mar Valley Utility unlter nding
Assessment District
June 29, 2005 REVIEWED BY:
MEETING DATE:
. . . . . . . . . . . . . . . . . . . . . It . . . . . . . . . . . . . . . . . . . . . . . . . . .
The attached Resolution (Exhibit A) authorizes various Town officials to complete the bond
issuance process for the Del Mar Valley Utility Undergrounding Assessment District. The final
dollar amounts will be incorporated into the document when the bonds are actually priced and
sold, sometime in mid-July. The bonds will be sold to Wulff, Hansen & Co, as was done for the
Lyford Cove district.
This Resolution also approves the forms of the Bond Purchase Agreement and Official
Statement. These forms will be separately supplied by Wulff, Hansen & Co., as underwriter, and
will be completed when the bonds are sold.
RECOMMENDATION
It is recommended that the Town Council adopt the attached Resolution authorizing issuance of
limited obligations improvement bonds for the Del Mar Valley Utility Undergrounding Assessment
District.
Exhibit A - Draft Resolution
S:\AdministrationlTown Counci/IStaff Reportsl20051Del Mar Valley Bond Sales. doc
30030-05
JH:SRC:sgs
6/14/05
RESOLUTION NO. _-2005
A RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF TIBURON
AUTHORIZING ISSUANCE OF LIMITED OBLIGATION IMPROVEMENT BONDS
AND DIRECTING RELATED ACTIONS
Del Mar UtilityUndergrounding Assessment District
Adopted
,2005
Section 1.01.
Section 1.02.
Section 1.03.
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
Section 3.06.
Section 3.07.
Section 3.08.
Section 3.09.
Section 3.10.
Section 3.11.
Section 4.01 .
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
Section 5.10.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; GENERAL
.DEFINITIONS... ..... ...... ........ ....... ....... ...... ........... ..... ........... .... .... ............................. 2
UNPAID ASSESSMENTS.......... ............................................................................. 8
EQUAL SECURITY ................................................................................................. 8
ARTICLE II
THE BONDS
BONDS AUTHORIZED......................... ...................... ............................................ 9
TERMS OF BONDS ................................................................................................ 9
REDEMPTION ............................................................................................ .......... 10
FORM OF BONDS ................................................................................................ 11
EXECUTION AND AUTHENTICATION OF BONDS ............................................ 11
TRANSFER OR EXCHANGE OF BONDS ........................................................... 11
BOND REGiSTER......................................................... ........................................ 12
TEMPORARY BONDS .......................................................................................... 12
BONDS MUTILATED, LOST, DESTROYED OR STOLEN .................................. 12
ARTICLE III
ISSUANCE OF BONDS
ISSUANCE AND SALE OF BONDS .....................................................................13
PLEDGE OF ASSESSMENTS AND FUNDS........................................................ 13
LIMITED OBLIGATIONS ....................................................................................... 13
NO ACCELERATION ............................................................................................13
REFUNDING OF BONDS ..................................................................................... 13
AUTHORITIES. ......... ...... ............................... ............... .... .... ... .......... ...... ............. 13
BOND PURCHASE AGREEMENT ....................................................................... 14
OFFICIAL STATEMENT .......................................................................................14
CONTINUING DISCLOSURE ............................................................................... 14
BOND SALE AND DELIVERy............................................................................... 14
ACTIONS APPROVED ......................................................................................... 14
ARTICLE IV
FUNDS AND ACCOUNTS
APPLICATION OF PROCEEDS OF SALE OF BONDS ..........................;............ 16
COSTS OF ISSUANCE FUND.............................................................................. 16
REDEMPTION FUND ........:.....................................................;............................ 16
RESERVE FUND .................................................................................................. 17
IMPROVEMENT FUND......................................................................................... 18
ARTICLE V
COVENANTS
COLLECTION OF ASSESSMENTS ..................................................................... 20
FORECLOSURE...................................................................................... ............. 20
PUNCTUAL PAYMENT; COMPLIANCE WITH DOCUMENTS ............................ 21
NO PRIORITY FOR ADDITIONAL OBLIGATIONS ............................................... 21
FURTHER ASSURANCES.............................................................. ..................... 21
PRIVATE ACTIVITY BOND LIMITATION ............................................................. 21
FEDERAL GUARANTEE PROHIBITION .............................................................. 22
NO ARBITRAGE ...................................................................................................22
REBATE REQUIREMENT .................................................................................... 22
YIELD OF THE BONDS ........................................................................................ 22
Section 5.11.
Section 5.12.
Section 5.13.
Section 6;01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Section 8:06.
Section 8.07.
Section 8.08.
Section 8.09.
Section 8.10.
Section 8.11.
Section 8.12.
Section 8.13.
Section 8.14.
Section 8.15.
Section 8.16.
EXHIBIT A
EXHIBIT B
AMENDMENT ................................................................................................:...... 22
MAINTENANCE OF TAX-EXEMPTION................................................................ 22
CONTINUING DISCLOSURE ............................................................................... 22
ARTICLE VI
INVESTMENT OF FUNDS
DEPOSIT AND INVESTMENT OF MONEYS IN FUNDS ..................................... 23
ACQUISITION, DISPOSITION AND VALUATION OF INVESTMENTS............... 23
LIABILITY OF TOWN ....................;.......................................................................24
EMPLOYMENT OF AGENTS BY TOWN .............................................................25
ARTICLE VII
MODIFICATION OR AMENDMENT
AMENDMENTS PERMITTED ..................................................................... ..........26
OWNERS' MEETINGS ..............,..........................................................................26
PROCEDURE FOR AMENDMENT WITH WRITTEN CONSENT OF
OWNERS. ............................................................................................................. 26
DISQUALIFIED BONDS. ........... ............................ .................................:.............. 27
EFFECT OF SUPPLEMENTAL RESOLUTION .................................................... 27
ENDORSEMENT OR REPLACEMENT OF BONDS ISSUED AFTER
AMENDMENT. .............................. .................. ...................................................... 27
AMENDATORY ENDORSEMENT OF BONDS .................................................... 28
ARTICLE VIII
MISCELLANEOUS
BENEFITS OF AGREEMENT LIMITED TO PARITIES ........................................ 29
SUCCESSOR AND PREDECESSOR ........................~......................................... 29
DISCHARGE OF RESOLUTION.................... ............... ........................................ 29
EXECUTION OF DOCUMENTS AND PROOF OF OWNERSHIP ....................... 30
WAIVER OF PERSONAL LIABILITY. ................................................................... 30
NOTICES AND DEMANDS........... ............ ............................................................ 30
PARTIAL INVALIDITy............................................................................................ 30
UNCLAIMED MONEyS.......................................................... ............. .................. 31
APPLICABLE LAW................................................................ ....:........................... 31
CONFLICT WITH ACT..........................................................................................31
CONCLUSIVE EVIDENCE OF REGULARITY; VALIDITY.................................... 31
PAYMENT ON BUSINESS DAY. .......................................................................... 31
REPEAL OF INCONSISTENT RESOLUTIONS ...................................................31
CONSULTANTS...................................................... .............................................. 31
CERTIFIED COPI ES..... ..................... ................................................................... 31
EFFECTIVE DATE OF THE RESOLUTION ......................................................... 31
***********
TERMS AND CONDITIONS
FORM OF BOND
ii
ARTICLE I
DEFINITIONS; GENERAL
Section 1.01. DEFINITIONS. Unless the context otherwise requires, the terms defined
in this Section shall, for all purposes of this Resolution and of any Supplemental Resolution and
of the Bonds and of any certificate, opinion, request or other document herein mentioned, have
the meanings herein specified. All references in this Resolution to "Articles," "Sections," and
other subdivisions are to the corresponding Articles, Sections or subdivisions of this Resolution;
and the words "herein," hereof," "hereunder" and other words of similar import refer to this
Resolution as a whole and not to any particular Article, Section or subdivision hereof. Words of
the masculine gender shall be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise indicate, words importing the
singular number shall include the plural number and vice versa, and words importing persons
. shall include corporations and associations, including public bodies, as well as natural persons.
"Act' means the Municipal Improvement Act of 1913, Division 12 of the Streets and
Highways Code of California, as amended and modified by other applicable laws
"Agent' means The Bank of New York Trust Company, N.A., designated in Section 2.01
hereof to perform the duties of authentication, registration, transfer and payment of the Bonds
and the Agent's assigns or any corporation or association which may at any time be substituted
in the Agent's place.
"Assessment or Assessments" means the unpaid amounts of the special assessments
levied against all taxable real property within the boundaries of the Assessment District
pursuant to the Act and the proceedings of the Council under the Resolution of Intention, for the
purpose of paying Debt Service on the Bonds under the Bond Law.
"Auditor' means the auditor/controller or tax collector of the County, or such other
official of the County who is responsible for preparing real property tax bills.
"Authorized Officer' means the Mayor, Town Manager, Finance Director, Town
Engineer, Clerk, Town Attorney or any other officer or employee authorized by the Town
Council of the Town or by an Authorized Officer to undertake the action referenced in this
Resolution as required to be undertaken by an Authorized Officer.
"Available Surplus Funds" means any surplus moneys held by the Town at the end of
each Fiscal Year in excess of the amounts required to pay lawful municipal obligations incurred
in that Fiscal Year.
"Bond' or "Bonds" means "Limited Obligation Improvement Bonds, Town of Tiburon,
Del Mar Utility Undergrounding Assessment District," issued under this Resolution and the Act,
and at any time Outstanding in substantially the form in Exhibit B attached.
"Bond Date" means the dated date of the Bonds specified in Exhibit A attached hereto
and made a part hereof.
"Bond Denomination" means the amount of $5,000 or any integral multiple thereof,
which is the minimum amount in which the Bonds may be issued, except that one Bond may
contain any odd amount.
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"Bond Law' means the Improvement Bond Act of 1915, Division 10 of the California
Streets and Highways Code.
"Bond Purchase Agreemenf' means the agreement between the Town and the
Original Purchaser for the sale and purchase of the Bonds.
"Bond Register' means the books maintained by the Agent pursuant to Section 2.07 for
the registration and transfer of ownership of the Bonds.
':Bond Year' means the twelve-month period beginning on September 2 in each year
and ending on the day prior to September 2 in the following year except that (i) the first Bond
Year shall begin on the Closing Date and end on the day prior to the next September 2, and (ii)
the last Bond Year may end on a prior redemption date.
"Business Day' means any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions in the state in which the Agent has its Principal Office are authorized
or obligated by law or executive order to be closed.
"Capitalized Interest Accounf' means the account of that name in the Redemption
Fund.
"Clerk" means the Town Clerk of the Town or Deputy Town Clerk or designee thereof.
"Closing Date" means the date upon which there is an exchange of any of the Bonds
for the proceeds representing the purchase price of such Bonds by the Original Purchaser
thereof.
"Continuing Disclosure Certificate" means any such certificate provided under
Section 5.13 hereof.
"Costs of Issuance" means all expenses incurred in connection with the authorization,
issuance, sale and delivery of the Bonds, including but not limited to compensation, fees and
expenses 'of the Town and the Agent and their respective counsel, compensation to any
financial consultants, engineers, accountants, verification agents, and underwriters (other than
those taken as discount on the Closing Date), legal fees and expenses, filing and recording
costs, costs of preparation and reproduction of notice of sale documents and other related bond
issuance costs, rating agency costs, costs of compliance with the Tax Code relating to any
rebate to the United States and continuing disclosures and the costs of printing, mailing and
publication of notices with respect to the Town.
"Costs of Issuance Fund' means the fund designated "Town of Tiburon, Limited
Obligation Improvement Bonds, Del Mar Utility Undergrounding Assessment District, Costs of
Issuance Fund established under Section 4.02 hereof.
"Councif' means the Town Council as the legislative body of the Town.
"County' means the County of Marin, State of California.
"Debt Service" means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
-3-
scheduled, and (ii) the principal amount of the Outstanding Bonds and the Sinking Fund
Payments due in such Bond Year.
"Fair Market Value" means the price at which a willing buyer would purchase the
investment from a willing seller in a bona fide, arm's length transaction (determined as of the
date the contract to purchase or sell the investment becomes binding) if the investment is
traded on an established securities market (within the meaning of section 1273 of the Tax
Code) and, otherwise, the term "Fair Market Value" means the acquisition price in a bona fide
arm's length transaction (as referenced above) if (i) the investment is a certificate of deposit
that is acquired in accordance with applicable regulations under the Tax Code, (ii) the
investment is an agreement with specifically negotiated withdrawal or reinvestment provisions
and a specifically negotiated interest rate (for example, a guaranteed investment contract, a
forward supply contract or other investment agreement) that is acquired in accordance with
applicable regulations under the Tax Code, (iii) the investment is a United States Treasury
Security--State and Local Government Series that is acquired in accordance with applicable
regulations of the United States Bureau of Public Debt, or (iv) any commingled investment fund
in which the Town and related parties do not own more than a ten percent (10%) beneficial
interest if the return paid by such fund is without regard to the source of the investment.
"Federal Securities" means any of the following which at the time of investment are
legal investments under the laws of the State for the moneys proposed to be invested therein:
(a) direct general obligations of the United States of America (including
obligations issued or hel,d in book entry form on the books of the Department of the
Treasury of the United States of America); and
(b) obligations of any department, agency or instrumentality of the United
St,ates of America the timely payment of principal of and interest on which are
unconditionally and fully guaranteed by the United States of America.
"Finance Director' means the Director of Administrative Services or chief financial
officer of the Town or designee thereof, including any deputy thereof or assistant thereto.
"Fiscal Year' means the period commencing on July 1 of each year and ending on the
next succeeding June 30. '
"Improvement Fund' means the fund designated "Town of Tiburon, Limited Obligation
Improvement Bonds, Del Mar Utility Undergrounding Assessment District," established under
Section 4.05 hereof.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond Service,"
30 Montgomery Street, 10th. Floor, Jersey City, New Jersey 07302, Attention: Editor; F.S.
Mergent call Notification, 5250 77 Center Drive, Charlotte, NC 28217; Xcitek, 5 Hanover
Square, New York, NY 10004; and, in accordance with then current guidelines of the Securities
and Exchange Commission, such other addresses and/or such services providing information
with respect to called bonds as the Town may designate in an Officer's Certificate delivered to
the Agent.
"Interest Payment Date" means each date upon which interest on the Bonds is payable
semiannually on each March 2 and September 2 until maturity and beginning on the date
specified in Exhibit A.
-4-
"Officer's Certificate" means a written certificate or similar document executed by an
Authorized Officer on behalf of the Town.
"Original Purchaser' means Wulff, Hansen & Co., as the first purchaser of the Bonds
from the Town.
"Outstanding," when used as of any particular time with reference to Bonds, means all
Bonds theretofore executed, issued and delivered by the Town and authenticated by the Agent
under this Resolution except:
(a) Bonds theretofore canceled by the Agent or surrendered to the Agent for
cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of Section
2.03; and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been
executed, issued and delivered by the Town pursuant to this Resolution or any
Supplemental Resolution.
"Owner' or "Registered Owner," when used with respect to any Outstanding Bond,
means the person in whose name the ownership of such Bond shall be registered on the Bond
Register.
"Participating Underwriter' means an underwriter or purchaser of the Bonds under the
Continuing Disclosure Certificate. .
"Permitted Investments" means the following, but only to the extent that the same are
acquired at Fair Market Value:
(a) Federal Securities;
(b) securities (other than those identified in paragraphs (a) and (d) of Section
53601 of the Government Code of the State) in which the Town may legally invest funds
subject to its control, pursuant to Article 1, commencing with Section 53600, of Chapter
4 of Part 1 of Division 2 of Title 5 of the Government Code of the State, as now or
hereafter amended;
(c) . shares in a California common law trust established pursuant to Title 1,
Division 7, Chapter 5 of the California Government Code which invests exclusively in
investments permitted by Section 53635 of Title 5, Division 2, Chapter 4 of the California
Government Code, as it may be amended, including but not limited to the California
Asset Management Program (CAMP); . .
(d) the Local Agency Investment Fund of the State of California, created
pursuant to Section 16429.1 of the California Government Code, to the extent the
Finance Director is authorized to register such investment in the Town's name;
(e) investment agreements or guaranteed investment contracts, with or
guaranteed by a financial entity whose long-term unsecured obligations are rated "M"
or better by Moody's Investor's Service ("Moody's) and Standard and Poor's Ratings
Group ("S&P"), and whose short term debt is rated no lower than the corresponding
- 5 -
level of rating category for such debt and such agreement or contract shall provide that
the financial entity shall deposit collateral with a third party in accordance with criteria
established by Moody's and S&P in the event that the rating of short or long-term debt of
the entity is downgraded below then-current requirements of Moody's and S&P for such
agreements or contracts;
(f) money market funds which are rated Am or better by S&P;
(g) any of the following direct or indirect obligations of the following agencies
of the United States of America: (i) direct obligations of the Export-Import Bank; (ii)
certificates of beneficial ownership issued by the Farmers Home Administration; (iii)
participation certificates issued by the General Services Administration; (iv) mortgage-
backed bonds or pass-through obligations issued and guaranteed by the Government
National Mortgage Association, the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation or the Federal Housing Administration; (v) project
notes issued by the United States Department of Housing and Urban Development; and
(vi) public housing notes and bonds guaranteed by the United States of America;
(h) interest-bearing demand or time deposits (including certificates of
deposit) in federal or state chartered savings and loan associations or in federal or State
of California banks (including the Agent), provided that (i) the unsecured short-term
obligations of such commercial bank or savings and loan association shall be rated A 1
or better by S&P, or (ii) such demand or time deposits shall be fully insured by the
Federal Deposit Insurance Corporation;
(i) commercial paper rated in the highest short-term rating category by S&P,
issued by corporations which are organized and operating within the United States of
America, and which matures not more than 180 days following the date of investment
therein;
U) bankers acceptances, consisting of bills of exchange or time drafts drawn
on and accepted by a commercial bank whose short-term obligations are rated in the
highest short-term rating category by S&P, which mature not more than 270 days
following the date of investment therein;
(k) obligations the interest on which is excludable from gross income
pursuant to Section 103 of the Tax Code and which are rated A or better by S&P.
"Prepayment Accounf' means the account of that name in the Redemption Fund.
"Principal Amounf' means the maximum aggregate principal amount of the Bonds as
forth in Exhibit A.
"Principal Office" means the office of the Agent in San Francisco, California, or such
other office as shall be designated by the Agent in writing to the Town, or such other office of
the Agent designated by the Agent for payment, transfer or exchange of the Bonds.
"Projecf' means, collectively, the acquisitions and improvements described in the
Resolution of Intention and funded with all or a portion of the proceeds of the Bonds.
- 6 - .
"Record Date" means, with respect to the Bonds, the fifteenth (15th) day of the
calendar month immediately preceding an Interest Payment Date, whether or not a Business
Day.
"Redemption Fund' means the fund designated "Town of Tiburon, Limited Obligation
Improvement Bonds, Del Mar Utility' Undergrounding Assessment District, Redemption Fund"
established under Section 4.03 hereof.
"Redemption Premium" means the percentage of the principal amount of the Bonds
payable upon redemption of the Bonds, as set forth in Exhibit A hereto.
"Reserve Fund' means the fund designated "Town of Tiburon, Limited Obligation
Improvement Bond, Del Mar Utility Undergrounding Assessment District, Reserve Fund"
established under Section 4.04 hereof.
"Reserve Requirement" means as of any date of calculation, an amount not to exceed
the lesser of (a) Maximum Annual Debt Service on the Outstanding Bonds or (b) ten percent
(10%) of the total of the proceeds of the Bonds deposited under Section 4.01 hereof.
"Resolution" or "Resolution of Issuance" means this Resolution, as originally adopted
or as it may from time to time be supplemented, modified or amended by any Supplemental
Resolution pursuant to the provisions hereof.
"Resolution of Intention" means Resolution No. 15-2003 "A Resolution of the Town
Council of the Town of Tiburon of Intention to Make Acquisitions and Improvements," adopted
by the Council on May 21, 2003.
"Sinking Fund Payments" means amounts specified in Exhibit A to be paid by the
Town with respect to any Term Bonds, as set forth in Exhibit A.
"State" means the State of California.
"Supplemental Resolution" means any resolution, agreement, resolution or other
instrument hereafter duly adopted or executed by the Town in accordance with the provisions of
this Resolution.
"Tax Code" means the Internal Revenue Code of 1986 as in effect on the date of
issuance of the Bonds or (except as otherwise referenced herein) as it may be amended to
apply to obligations issued on the date of issuance of the Bonds, together with applicable
proposed, temporary and final regulations promulgated, and applicable official public guidance
published, under the Tax Code.
"Term Bonds" means those Bonds identified as Term Bonds in Exhibit A.
"Town" means the Town of Tiburon a municipal corporation and general law town of the
State of California duly organized and validly existing under and by virtue of the Constitution
and the laws of the State of California.
"Town Attorney" means the duly appointed or retained attorney or firm of attorneys to
the Town for purposes of rendering advice in the conduct of its general municipal affairs.
- 7 -
"Town Manager' means the Town Manager or the Assistant Town Manager of the
Town.
"Treasurer' means the official who is the elected Town treasurer, or the deputy or
designee thereof, or which, official may be the Finance Director.
Section 1.02. UNPAID ASSESSMENTS. The Assessments are hereby finally confirmed
as shown on the list of unpaid Assessments on file with the Finance Director which list is hereby
approved and which is incorporated herein by this reference and made a part hereof. For a
particular description of the lots or parcels of land bearing the respective assessment numbers
set forth in the list, reference is hereby made to the assessment and to the diagram, and any
amendments thereto, recorded in the office of the Town Engineer as the Superintendent of
Streets of the Town after confirmation thereof by the Council.
Section 1.03. EQUAL SECURITY. In consideration of the acceptance of the Bonds by
the Owners thereof, this Resolution shall be deemed to be and shall constitute a contract
between the Town and the Owners from time to time of the Bonds; and the covenants and
agreements herein set forth to be performed on behalf of the Town shall be for the equal and
proportionate benefit, security and protection of all Owners of the Bonds without preference,
priority or distinction as to security or otherwise of any of the Bonds over any of the others by
reason of the number or date thereof or the time of sale, execution or delivery thereof, or
otherwise for any cause whatsoever, except as expressly provided therein or herein.
- 8 -
ARTICLE II
THE BONDS
Section 2.01. BONDS AUTHORIZED. All acts, conditions and things required by law to
exist, happen and be performed precedent to and in the issuance of the Bonds have existed,
happened and been performed in due time, form and manner as required by law, and the
Council is now authorized pursuant to each and every requirement of law to issue the Bonds in
the manner and form as provided in this Resolution. The Bonds in the Principal Amount are
hereby authorized and will be issued as serial and/or term bonds as set forth in Exhibit A
hereto. The Agent, at the Principal Office, is hereby designated as the Agent to perform the
actions and duties required under this Resolution for the authentication, transfer, registration,
and payment of the Bonds. .
Section 2.02. TERMS OF BONDS.
(A) Denominations. The Bonds shall be issued as fully registered Bonds without
coupons in the Bond Denomination or any integral multiple thereof, except that the first maturity
may contain any odd amount. Bonds shall be lettered and numbered in a customary manner as
determined by the Agent.
(8) Date of Bonds. The Bonds shall be dated the Bond Date.
(C) CUSIP. "CUSIP" identification numbers shall be imprinted on the Bonds, but
such numbers shall not constitute a part of the contract evidenced by the Bonds and any error
or omission with respect thereto shall not constitute cause for refusal of any purchaser to
accept delivery of and pay for the Bonds. Failure of the Town or the Agent to use such CUSIP
numbers in any notice to Owners shall not constitute an event of default or any violation of the
Town's contract with such Owners and shall not impair the effectiveness of any such notice.
(D) Series and Maturities. The Bonds shall consist of the series and mature and
become payable on September 2 of each year and shall bear interest at the rates per annum all
as set forth in Exhibit A hereto and hereby made a part hereof.
(E) Interest. The Bonds shall bear interest at the rates set forth above payable on
the Interest Payment Dates in each year. Interest shall be calculated on the basis of a 360-day
year composed of twelve 30-day months. Each Bond sha!1 bear interest from the Interest
Payment Date next preceding the date of authentication and registration thereof unless it is
authenticated and registered (i) prior to an Interest Payment Date and after the close Of
business of the Record Date, in which event it shall bear interest from such Interest Payment
Date, or (ii) prior to the close of business on the Record Date preceding the first Interest
Payment Date, in which event it shall bear interest from the Dated Date.
(F) Method of Payment. Both the pr~ncipal of and interest and premium (if any) on
the Bonds shall be payable in lawful money of the United States of America. Interest on the
Bonds (including the final interest payment upon maturity or earlier redemption) is payable by
check of the Agent mailed by first class mail to the registered Owner thereof at such registered
Owner's address as it appears on the registration books maintained by the Agent at the close of
business on the Record Date preceding the Interest Payment Date, or by wire transfer made on
such Interest Payment Date upon written instructions of any Owner of $1,000,000 or more in
aggregate principal amount of Bonds delivered to the Agent prior to the applicable Record
- 9 -
Date. The principal of the Bonds and any premium on the Bonds are payable in lawful money
of the United States of America upon surrender of the Bonds at the Principal Office of the
Agent. All Bonds paid by the Agent pursuant this Section shall be canceled by the Agent. The
Agent shall destroy the canceled Bonds and, upon request of the Town, issue a certificate of
destruction of such Bonds to the Town.
Section 2.03. REDEMPTION.
(A) General. The Bonds are subject to redemption from the sources, upon the
terms, the amounts, on the dates and at the Redemption Premiums as set forth in Exhibit A
hereto and hereby made a part hereof.
(B) Notice to Agent. For other than redemption of any Term Bonds, the Town shall
give the Agent written notice of the aggregate amount of Bonds expected to be redeemed
pursuant to subsection (A) not less than sixty (60) days prior to the applicable redemption date.
(C) Redemption Procedure by Agent.
(i) Selection of Bonds. Except for redemption of any Term Bonds, the
Agent shall select Bonds for retirement in such a way that the ratio of Outstanding
Bonds to issued Bonds shall be approximately the same in each annual series insofar
as possible. Within each annual series the Agent shall select Bonds for retirement by
lot.
(ii) Notice by Agent. The Agent shall cause written notice of any
redemption to be given by registered or certified mail or by personal service to the
respective registered Owners of any Bonds designated for redemption, at their
addresses appearing on the Bond Register in the Principal Office of the Agent at least
30 days before the applicable Interest Payment Date. The Agent shall also cause notice
of redemption to be sent to one or more of the Information Services at least one day
earlier than the giving of notice to the Owners as aforesaid; provided, however, such
mailing to the Information Services shall not be a condition precedent to such
redemption. Failure to so mail any notice of redemption, or of any person or entity to
receive any such notice, or any defect in any notice of redemption, shall not affect the
validity of the proceeding for the redemption of such Bonds.
Such notice shall state the redemption date and the Redemption Premium and, if
less than all of the then Outstanding Bonds are to be called for redemption, shall
designate the CUSIP numbers (if applicable) and Bond numbers of the Bonds to be
redeemed by giving the individual CUSIP number and Bond number of each Bond to be
redeemed or shall state that all Bonds between two stated Bond numbers, both
inclusive, are to be redeemed or that all of the Bonds of one or more maturities have
been called for redemption, shall state as to any Bond called in part the principal amount
thereof to be redeemed, and shall require that such Bonds be then surrendered at the
Principal Office of the Agent for redemption at the said redemption price, and shall state
that further interest on such Bonds, or the portion thereof to be redeemed, will not
accrue from and after the redemption date.
(iii) Payment. Upon the payment of the redemption price of Bonds being
redeemed, each check or other transfer of funds issued for such purpose shall, to the
extent practicable, bear the CUSIP number identifying, by issue and maturity, the Bonds
being redeemed with the proceeds of such check or other transfer.
- 10-
(iv) Partial Redemption. Upon surrender of Bonds redeemed in part only,
the Town shall execute and the Agent shall authenticate and deliver to the registered
Owner, at the expense of the Town, a new Bond or Bonds, of the same series and
maturity, of authorized denominations in aggregate principal amount equal to the
unredeemed portion of the Bond or Bonds.
(D) Effect of Redemption. From and after the date fixed for redemption, if funds
available for the payment of the principal of, and interest and any premium on, the Bonds so
called for redemption shall have been deposited in the Redemption Fund on the date fixed for
redemption, such Bonds so called shall cease to be entitled to any benefit under this Resolution
other than the right to receive payment of the redemption price, and no interest shall accrue
thereon on or after the redemption date specified in such notice. All Bonds redeemed by the
Agent pursuant to this Section 2.03 shall be canceled by the Agent. The Agent shall destroy
the canceled Bonds and, upon request of the Authority, issue a certificate of destruction of such
Bonds to the Town.
Section 2.04. FORM OF BONDS. The Bonds, the Agent's certificate of authentication
and the assignment, to appear thereon, shall be substantially in the forms, respectively, set
forth in Exhibit B attached hereto and by this reference incorporated herein, with necessary or
appropriate variations, omissions and insertions, as permitted or required by this Resolution
and the Act. The Bonds are being issued in fully registered form as physical certificates and,
when issued, will be eligible for registration with the Depository Trust Company, New York, New
York ("DTC"), however, at closing, unless issued as a temporary Bond hereunder, the Bonds
will not be issued in "book-entry-only" form.
Section 2.05. EXECUTION AND AUTHENTICATION OF BONDS. The Bonds shall be
executed in the name and on behalf of the Town with the manual or facsimile signatures of the
Treasurer and attested by the manual or facsimile signature of the Clerk. The Bonds shall then
be delivered to the Agent for authentication. In case any officer who shall have signed any of
the Bonds shall cease to be such officer before the Bonds so signed shall have been
authenticated or delivered by the Agent or issued by the Town, such Bonds may nevertheless
be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall
be as binding upon the Town as though the individual who signed the same had continued to
be such officer of the Town. Also, any Bond may be signed on behalf of the Town by any
individual who on the actual date of the execution of such Bond shall be the proper officer
although on the nominal date of such Bond such individual shall not have been such officer.
Only such of the Bonds as shall bear thereon a certificate of authentication in
substantially the form set forth in Exhibit B, manually executed by the Agent, shall be valid or
obligatory for any purpose or entitled to the benefits of this Resolution, and such certificate of
the Agent shall be conclusive evidence that the Bonds so authenticated have been duly
authenticated and delivered hereunder and are entitled to the benefits of this Resolution. The
Agent's certificate of authentication on any Bonds shall be deemed to be executed by it if
signed by the Agent or by an authorized officer or signatory of the Agent, but it shall not be
necessary that the same officer or signatory sign the certificate of authentication on all of the
Bonds issued hereunder.
Section 2.06. TRANSFER OR EXCHANGE OF BONDS. Any Bond may, in accordance
with its terms, be transferred upon the Bond Register by the registered Owner, in person or by
such Owner's duly authorized attorney, upon surrender of such Bond for cancellation,
accompanied by delivery of a written instrument of transfer in a form approved by the Agent,
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duly executed. Whenever any Bond shall be surrendered for transfer, the Agent shall
thereupon authenticate and deliver to the transferee a new Bond or Bonds of like tenor,
maturity and aggregate principal amount. Bonds may be exchanged at the Principal Office of
the Agent, for Bonds of the same tenor and maturity and of other authorized denominations.
No Bonds the notice of redemption of which has been given under Section 2.03 shall be subject
to transfer or exchange pursuant to this Section. Neither the Town nor the Agent shall be
required to make such exchange or registration or transfer of Bonds on or after the Record
Date or after a Bond has been selected for redemption. For any transfer or exchange under this
Section, the Town and the Agent may require the payment of a reasonable fee to cover the
costs and expenses of the Town and the Agent.
Section 2.07. BOND REGISTER. The Agent will keep or cause to be kept at its
Principal Office a sufficient Bond Register for the registration and transfer of the Bonds, which
shall at all times during regular business hours be open to inspection by the Town; and, upon
presentation for such purpose, the Agent shall, under such reasonable regulations as it may
prescribe, register or transfer or cause to be registered or transferred, on the Bond Register,
Bonds as provided in this Resolution.
Section 2.08. TEMPORARY BONDS. The Bonds may be issued initially in temporary
form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such denominations as may be determined by
the Council and may contain such reference to any of the provisions of this Resolution as may
be appropriate. Every temporary Bond shall be executed by the officers designated and in the
manner provided in Section 2.05 hereof and be registered and authenticated by the Agent upon
the same conditions and in substantially the same manner as the definitive Bonds. If the Town
issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and
thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at
the Principal Office of the Agent, and the Agent shall authenticate and deliver in exchange for
such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized
denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits
under this Resolution as definitive Bonds 'authenticated and delivered hereunder.
Section 2.09. BONDS MUTILATED, LOST, DESTROYED OR STOLEN. If any Bond
shall become mutilated, the Agent shall thereupon authenticate and deliver, a new Bond of like
maturity and principal amount in exchange and substitution for the Bond so mutilated, but only
upon surrender to the Agent of the Bond so mutilated. Every mutilated Bond so surrendered to
the Agent shall be canceled by it and delivered to, or upon the order of, the Town. If any Bond
issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft
may be submitted to the Town and the Agent and, if such evidence be satisfactory to them and
indemnity satisfactory to them shall be given, the Agent shall thereupon authenticate and
deliver, a new Bond of like maturity and principal amount in lieu of and in substitution for the
Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall have been
called for redemption, instead of issuing a substitute Bond the Agent may pay the same without
surrender thereof upon receipt of indemnity satisfactory to the Agent). The Town and the Agent
may require payment of a reasonable fee for each new Bond issued under this Section and of
the expenses which may be incurred by the Town and the Agent. Any Bond issued under the
provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall
constitute an original contractual obligation on the part of the Town whether or not the Bond
alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be
equally and proportionately entitled to the benefits of this Resolution with all other Bonds
secured by this Resolution and any Supplemental Resolution.
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ARTICLE III
ISSUANCE OF BONDS
Section 3.01. ISSUANCE AND SALE OF BONDS. At any time after the adoption of this
Resolution, the Town may issue the Bonds and sell and deliver them to the Original Purchaser
under the Bond Purchase Agreement between the Town and Original Purchaser. The
Authorized Officers, and each of them, are hereby authorized to negotiate and execute the
Bond Purchase Agreement with the Original Purchaser for the sale of the Bonds, subject to
such conditions as shall be as hereafter provided.
Section 3.02. PLEDGE OF ASSESSMENTS AND FUNDS. The Bonds shall be secured
by a first pledge (which pledge shall be effected in the manner and to the extent herein
provided) of all of the Assessments and all moneys deposited in the Redemption Fund (and the
Prepayment Account therein) and the Reserve Fund. The Assessments and all moneys
deposited into said funds (except as otherwise provided herein) are hereby dedicated to the
payment of the principal of (including any Sinking Fund Payments), and interest and any
premium on, the Bonds as provided herein and in the Bond Law until all of the Bonds have
been paid and retired or until moneys or Federal Securities have been set aside irrevocably for
that purpose in under Section 8.03 hereof.
Section 3.03. LIMITED. OBLIGATIONS. All obligations of the Town under this
Resolution and the Bonds shall not be general obligations of the Town, but shall be limited
obligations, payable solely from the Assessments and the funds pledged therefore hereunder.
Neither the faith and credit of the Town nor of the State of California or any political subdivision
thereof is pledged to the payment of the Bonds. The Bonds are "Limited Obligation
Improvement Bonds" under section 8769 of the Bond Law and are payable solely from and
secured solely by the Assessments and the amounts in the Redemption Fund and the Reserve
Fund created hereunder. Notwithstanding any other provision of this Resolution, the Town is
not obligated to advance available surplus funds from the Town treasury to cure any deficiency
in the Redemption Fund; provided, however, the Town is not prevented, in its sole discretion,
from so advancing funds.
Section 3.04. NO ACCELERATION. The principal of the Bonds shall not be subject to
acceleration hereunder. Nothing in this Section 3.04 shall in any way prohibit the prepayment or
redemption of Bonds under Section 2.03 hereof, or the defeasance of the Bonds and discharge
of this Resolution under Section 8.03 hereof.
Section 3.05. REFUNDING OF BONDS. The Bonds may be refunded by the Town
pursuant to Divisions 11 or 11.5 of the California Streets and Highways Code upon the
conditions as set forth in appropriate proceedings. This Section shall not apply to or in any
manner limit advancement of the maturity of any of the Bonds as provided in Parts 8, 9, 11, or
11.1 of the Bond Law, nor shall this Section 3.05 apply to or in any manner limit the redemption
and payment of any Bond pursuant to subsequent proceedings providing for the payment of
amounts to eliminate previously imposed fixed lien assessments, including the Assessments.
Section 3.06. AUTHORITIES. The Authorized Officers are hereby authorized and
directed to cause the various documents herein mentioned to be completed and executed with
such changes, modifications, deletions or additions as may be approval by the Authorized
Officer in consultation with the Town's staff and consultants with respect to these reassessment
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proceedings, such approval to be conclusively evidenced by the execution of the such
documents by the Authorized Officer. The foregoing authorization is expressly conditioned
upon the satisfaction of the following: (i) the total principal amount of the Bonds shall not
exceed $4,700,000; (ii) the average interest rate of the Bonds shall not exceed 6% per annum
and the discount shall not exceed 2.5% of the Principal Amount. The Clerk is authorized to
complete and to approve changes in any provisions of this Resolution and Exhibits A and B
hereto in order to accomplish the delivery of any of the Bonds on schedule; such changes may
be accomplished by attachment of a certificate, executed by the Clerk, to this Resolution on file
in the office of the Clerk.
Section 3.07. BOND PURCHASE AGREEMENT. The Council hereby approves the
Bond Purchase Agreement in substantially the form on file with the Town and the Authorized
Officer is hereby authorized and directed to complete and execute the Bond Purchase
Agreement on behalf of the Town with such changes, additions, deletions and revisions as may
be approved by the Authorized Officer in consultation with the Original Purchaser and Bond
Counsel.
Section 3.08. OFFICIAL STATEMENT. The Council hereby approves the Official
Statement describing the financing for the Bonds, in substantially the form on file with the Town
Clerk together with any changes therein or additions thereto deemed advisable by the
Authorized Officer. The Council approves and authorizes the distribution by the Original
Purchaser (as underwriter) of the Preliminary Official Statement to prospective purchasers of
the Bonds, and authorizes and directs the Authorized Officer on behalf of the Town to deem
"final," pursuant to Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule"), the
Preliminary Official Statement prior to its distribution to prospective purchasers of the Bonds.
The execution of the final Official Statement, which shall include such changes and additions to
the Preliminary Official Statement as may be permitted by the Rule and deemed advisable by
the Authorized Officer and such information permitted to be excluded from the Preliminary
Official Statement pursuant to the Rule shall be conclusive evidence of the approval of the
Official Statement by the Town.
Section 3.09. CONTINUING DISCLOSURE. The Council hereby approves the form of
the Town's Continuing Disclosure Certificate with respect to the Bonds in substantially the
forms thereof attached to the Preliminary Official Statement. The Authorized Officer is hereby
authorized and directed to complete and execute the Certificate on behalf of the Town with
. such changes, additions, deletions as may be approved by the Authorized Officer in
consultation with Bond Counsel.
Section 3.10. BOND SALE AND DELIVERY.. Upon execution of the Bond Purchase
Agreement by the Town, the Bonds shall be prepared, authenticated and delivered, all in
accordance with the applicable terms of this Resolution and the Bond Purchase Agreement.
Each Authorized Officer and other responsible Town officials are hereby authorized and
directed to take such actions as are required under the Bond Purchase Agreement to complete.
all actions required to evidence the delivery of the Bonds and the receipt of the purchase price
thereof from the Original Purchaser.
Section 3.11. ACTIONS APPROVED. All actions heretofore taken by each Authorized
Officer and other officials and agents of the Town with respect to the establishment of the
Assessment District and the sale and issuance of the Bonds are hereby approved, confirmed
and ratified, and each Authorized Officer is hereby authorized and direCted to do any and all
things and take any and all actions and execute any and all certificates, agreements, contracts,
and other documents, which each Authorized Officer may deem necessary or advisable in order
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to complete the lawful issuance and delivery of the Bonds in accordance with this Resolution
and any certificate, agreement, contract, and other document described in the documents
herein approved. Each Authorized Officer is further authorized and directed to complete Exhibit
A hereto and make such changes, amendments and corrections to this resolution as may be
required to provide for the timely issuance, sale and delivery of the Bonds and to certify to such
actions, as required.
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ARTICLE IV
FUNDS AND ACCOUNTS
Section 4.01. APPLICATION OF PROCEEDS OF SALE OF BONDS. Upon receipt of
the proceeds of sale of the Bonds on the Closing Date, the proceeds thereof shall be forthwith
set aside, paid over and deposited by the Finance Director, as set forth in appropriate Officer's
Certificate(s), Article IV hereof and Exhibit A hereto.
Section 4.02. COSTS OF ISSUANCE FUND.
(A) Establishment of Costs of Issuance Fund. The Costs of Issuance Fund shall
be established, held and receive deposits, all as provided in Exhibit A. The moneys in the Costs
of Issuance Fund shall be held by the Finance Director for the benefit of the Town and shall be
disbursed as provided in subsection (B) of this Section 4.02 for the payment or reimbursement
of the Costs of Issuance.
(B) Disbursement. Amounts in the Costs of Issuance Fund shall be disbursed from
time to time to pay Costs of Issuance as set forth in a requisition therefor containing respective
amounts to be paid to the designated payees and delivered to the Finance Director concurrently
with the delivery of the Bonds. The Finance Director shall pay all Costs of Issuance upon
receipt of an invoice from any such payee which requests payment in an amount which is less
than or equal to the amount set forth with respect to such payee in such requisition, or upon
receipt of an Officer's Certificate requesting payment of a Cost of Issuance not listed on the
initial requisition delivered to the Finance Director on the Closing Date.
(C) Investment. Moneys in the Costs of Issuance Fund shall be invested and
deposited under Section 6.01 hereof. Pending its closing under Subsection (D)below, Interest
earnings and profits resulting from such investment shall be retained by the Finance Director in
the Costs of Issuance Fund to be used for the purposes of such fund, pending the closing of
such fund.
(D) Closing of Fund. The Finance Director shall maintain the Costs of Issuance
Fund for a period of 90 days from the Closing Date or until the last known Costs of Issuance
have been paid, whichever is earlier, and "then shall transfer any moneys remaining therein,
including any investment earnings thereon, the Improvement Fund and the Costs of Issuance
Fund shall be closed.
Section 4.03. REDEMPTION FUND.
(A) Establishment of Redemption Fund and Account. The Redemption Fund is
hereby established as a separate fund to' be held by the Finance Director to the credit of which
deposits shall be made as required by Section 4.01 and any other amounts required to be
deposited therein by this Resolution or the Bond Law. Moneys in the Redemption Fund shall be
held by the Finance Director for the benefit of the Town and the Bond Owners, shall be
disbursed for the payment of the principal of, and interest and any premium on, the Bonds as
provided below. Within the Redemption Fund, the Finance Director shall establish and
administer accounts as follows:
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(i) The Capitalized Interest Account, into which a deposit shall be made
under Section 4.01 and from which, disbursements shall be made to pay all or a portion
of the interest on the Bonds which is due on the Interest Payment Date(s) set forth in
Exhibit A. Upon the final payment of interest as herein provided, any moneys remaining
in the Capitalized Interest Account shall be transferred to the Redemption Fund to pay
Debt Service and the Capitalized Interest Account shall be closed; and
(ii) The Prepayment Account, into which shall be placed any amounts
representing the full or partial prepayments of Assessments that occur after the
issuance of the Bonds. The Prepayment Account shall be administered in accordance
with section 8767 of the Bond Law and shall remain open so long as the Redemption
Fund remains open.
(B) Disbursements. On or before each Interest Payment Date, the Finance Director
shall withdraw from the accounts in the Redemption Fund and forward to the Agent for payment
to the Owners of the Bonds, amounts sufficient to pay the principal of, and interest and any
premium, then due and payable on the Bonds. Five (5) Business Days prior to each Interest
Payment Date, the Finance Director shall determine if the amounts then on deposit in the
Redemption Fund are sufficient to pay the Debt Service due on the Bonds on such Interest
Payment date. In the event that amounts in the Redemption Fund are insufficient for such
purpose, the Finance Director shall cause appropriate withdrawals to be made from the
Reserve Fund, to the extent of any funds therein, the amount of such insufficiency, and shall
transfer any amounts so withdrawn to the Redemption Fund. Amounts so withdrawn from such
reserve fund and deposited in the Redemption Fund shall be applied to the payment of the
Bonds. If, after the foregoing transfers, there are insufficient funds in the Redemption Fund to
make the payments provided for in the first sentence of the first paragraph of this Section
4.03(B), the Finance Director shall apply the available funds first to the payment of interest on
the Bonds, then to the payment of principal due on the Bonds, and then to payment of principal
due on the Bonds by reason of Bonds called for redemption pursuant to Section 2.03 hereof.
(C) Investment. Moneys in the Redemption Fund and the accounts therein shall be
invested and deposited in accordance with Section 6.01. Interest earnings and profits resulting
from such investment and deposit shall be retained in the Redemption Fund. and the accounts
therein.
(D) Closing of Fund. The Redemption Fund (and the Prepayment Account therein)
shall be closed when all of the principal of and interest on the Bonds has been paid.
Section 4.04. RESERVE FUND.
(A) Establishment of Reserve Fund. The Reserve Fund is hereby established as
a separate fund to be held by the Finance Director to the credit of which a deposit shall be
made as required by Section 4.01, and deposits shall be made as provided in the Bond Law.
Moneys in the Reserve Fund shall be held by the Finance Director for the benefit of the Town
and the Bond Owners as a reserve for the payment of principal of, and interest and any
premium on, the Bonds. The Town shall cause the Reserve Fund to be administered in.
accordance with Part 16 of the Bond Law; provided that proceeds from redemption or sale of
properties with respect to which payment of delinquent Assessments and interest thereon was
made from the Reserve Fund, shall be credited to the Reserve Fund.
(B) Use of Fund. Except as otherwise provided in this Section 4.04 all amounts
deposited in the Reserve Fund shall be used and withdrawn by the Finance Director solely for
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the purpose of making transfers to the Redemption Fund in the event of any deficiency at any
time in the Redemption Fund of the amount then required for payment of the principal of, and
interest and any premium on, the Bonds or, in accordance with the provisions of this Section
4.04, for the purpose of redeeming Bonds from the Redemption Fund.
(C) Transfer Due to Deficiency in Redemption Fund. Transfers shall be made
from the Reserve Fund to the Redemption Fund in the event of a deficiency in the Redemption
Fund, in accordance with Section 4.04(B) hereof.
(D) Payment of Assessments. Whenever, after the issuance of the Bonds, an
Assessment is pre-paid, in whole or in part, as provided in the Bond Law, the Finance Director
shall transfer from the Reserve Fund to the Redemption Fund an amount specified in such
direction equal to the product of the ratio of the original amount of the Assessment securing any
Bonds so paid to the original amount of all Assessments securing any Bonds, times the initial
Reserve Requirement.
(E) Transfer of Excess of Reserve Requirement. Whenever, on any Interest
Payment Date, or on any other date as determined by the Finance Director, the amount in the
Reserve Fund exceeds the then applicable Reserve Requirement, the Finance Director shall,
except as otherwise provided in Section 5.09 hereof for purposes of rebate and as evidenced
by an appropriate Officer's Certificate, transfer on or before such Interest Payment Date an
amount equal to the excess from the Reserve Fund to the Redemption Fund to be used in
accordance with Part 16 of the Bond Law.
(F) Transfer When Balance Exceeds Outstanding Bonds. Whenever the balance
in the Reserve Fund is sufficient to retire all the Outstanding Bonds, whether by advance
retirement or otherwise, collection of the principal and interest on the Assessments shall be
discontinued and the Reserve Fund liquidated by the Finance Director in retirement of the
Outstanding Bonds, as directed by an Officer's Certificate. In the event that the balance in the
Reserve Fund at the time of liquidation exceeds the amount required to retire all of the
Outstanding Bonds, the excess shall be transferred to the Town to be used in accordance with
the Act and the Bond Law.
(G) Investment. Moneys in the Reserve Fund shall be invested and deposited in
accordance with Section 6.01. Interest earnings and profits resulting from said investment shall
be retained in the Reserve Fund subject to the provisions of Section 4.04(E) hereof.
Section 4.05. IMPROVEMENT FUND.
(A) Establishment of Improvement Fund. The Improvement Fund is hereby
established as a separate fund to be held by the Finance Director to the credit of which deposits
shall be made as required by Section 4.01. Moneys in the Improvement Fund shall be held by
the Finance Director for the benefit of the Town, and shall be disbursed, except as otherwise
provided in subsection (D) of this Section, for the payment or reimbursement of costs of the
Project.
(B) Disbursement. Disbursements from the Improvement Fund shall be made by
the Finance Director upon receipt of an Officer's Certificate, which shall:
(i) set forth the amount required to be disbursed, the purpose for which the
disbursement is to be made, the person to which the disbursement is to be paid and
state that such disbursement is for a Project cost; and
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(ii) certify that no portion of the amount then being requested to be disbursed
was set forth in any Officer's Certificate previously filed requesting disbursement.
(C) Investment. Moneys in the Improvement Fund shall be invested and deposited
under Section 6.01 hereof. Interest earnings and profits from such investment and deposit shall
be retained in the Improvement Fund to be used for the purposes of such fund.
(D) Closing of Fund. Upon the filing of an Officer's Certificate stating that the
Project has been completed and that all costs of the Project have been paid or are not required
to be paid from the Improvement Fund, the Finance Director shall transfer the amount, if any,
remaining in the Improvement Fund as directed in the Officer's Certificate which directions shall
be pursuant to the Resolution of Intention and to the applicable provisions of the Act and the
Improvement Fund shall be closed.
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ARTICLE V
COVENANTS
Section 5.01. COLLECTION OF ASSESSMENTS. The Town shall comply with all
requirements of the Act, the Bond Law and this Resolution to assure the timely collection of the
Assessments, including, without limitation, the enforcement of delinquent Assessments. To that
end, the following shall apply:
(A) Tax Roll Collection. The Assessments as set forth on the list thereof on file with
the Finance Director together with the interest thereto, shall be payable in annual series
corresponding in number and proportionate amount to the number of installments and principal
amounts of the Bonds maturing or becoming subject to mandatory prior redemption under
Section 2.03 hereof. An annual proportion of each Assessment shall be payable in each Fiscal
Year preceding the date of maturity or mandatory prior redemption date of each of the Bonds
issued sufficient to pay the Bonds when due and such proportion of each Assessment coming
due in any year, together with the annual interest thereon, shall be payable in the same manner
and at the same time and in the same installments as the general taxes on real property are
payable, and become delinquent at the same times and in the same proportionate amounts and
bear the same proportionate penalties and interests after delinquency as do the general taxes
on real property. All sums received from the collection of the Assessments and of the interest
and penalties thereon shall be placed in the Redemption Fund.
(B) Auditor Record, The Finance Director shall, before the final date on which the
Auditor will accept the transmission of the Assessments for the parcels within the Assessment
District for inclusion on the next tax roll, prepare or cause to be prepared, and shall transmit to
the Auditor, such data as the Auditor requires to include the installments of the Assessments on
the next secured tax roll. The Finance Director is hereby authorized to employ consultants to
assist in computing the installments of the Assessments hereunder and in reconciling
Assessments billed to amounts received as provided in the subsection (C) of this Section 5.01.
(C) Administrative Costs. In addition to any amounts authorized pursuant to
section 8682 of the Bond Law to be included with the annual amounts of installments as
aforesaid, the Town, pursuant to section 8682.1 of the Bond Law may cause to be entered on
the assessment roll on which taxes will next become due, opposite each lot or parcel of land
within the Assessment District in the manner set forth in said section 8682, each lot's pro rata
share of the estimated annual expenses of the Town in connection with the administrative
duties thereof for the Bonds, including, but not limited to, the costs of registration,
authentication, transfer and compliance with the provisions of Article V hereof. Delinquent
Assessments shall be subject to foreclosure pursuant to Section 5,02 hereof.
Section 5.02. FORECLOSURE. The Town hereby covenants with and for the benefit of
the Owners of the Bonds that it will order, and cause to be commenced, and thereafter
diligently prosecute an action in the superior court to foreclose the lien of any Assessment or
installment thereof which has been billed, but has not been paid, pursuant to and as provided in
sections 8830 and 8835, inclusive of the Bond Law and the conditions specified in this Section
5.02. The Finance Director shall notify the Town Attorney of any such delinquency of which the
Finance Director is aware, and the Town Attorney shall commence, or cause to be commenced,
such foreclosure proceedings, Under this Section, "commence" means and includes any
actions preparatory to filing of any complaint. The Town Attorney is hereby authorized to
- 20-
employ counsel to conduct any such foreclosure proceedings. The following conditions shall
apply to the foreclosure proceedings which shall be commenced within 60 days of any of the
following determinations which shall be made by the Finance Director not later than October 1
of each Fiscal Year:
(A) If the Finance Director determines that there is a delinquency of Assessment of
$1,500 or more for a prior Fiscal Year or Years for any single parcel of land in the Assessment
District.
(B) If the Finance Director determines that the total amount of delinquent
Assessments for the prior Fiscal Year for the entire Assessment District, less the total
delinquencies under subsection (A) above, exceeds three percent (3%) of the total
Assessments due and payable in the prior Fiscal Year, foreclosure shall be commenced against
each parcel of land in the Assessment District with a delinquency of $750 or more for the prior
Fiscal Year or Years.
(C) If the Finance Director determines that the total amount of delinquent
Assessment for the prior Fiscal Year for the entire Assessment District, less the total
delinquencies under subsections (A) and (B) above, exceeds five percent (5%) of the total
Assessments due and payable for the prior Fiscal Year, foreclosure shall be commenced
against each parcel of land within the Assessment District with any amount of delinquency for
the prior Fiscal Year or Years.
Provided, however, that nothing herein shall prevent the Finance Director or the Town
Attorney from causing the commencement of foreclosure proceedings before the occurrence of
any of the foregoing.
Section 5.03. PUNCTUAL PAYMENT; COMPLIANCE WITH DOCUMENTS. The Town
shall punctually payor cause to be paid the interest and principal to become due with respect to
all of the Bonds in strict conformity with the terms of the Bonds and of this Resolution, and will
faithfully observe and perform all of the conditions, covenants and requirements of this
Resolution and all Supplemental Resolutions.
Section 5.04. NO PRIORITY FOR ADDITIONAL OBLIGATIONS. The Town covenants
that no additional bonds or other obligations shall be issued or incurred having any priority over
the Bonds in payment of principal or interest out of the Assessments. Nothing in this
Resolution shall prohibit the Town from issuing bonds or other obligations on a parity with or
subordinate to the Bonds and secured by and payable from the Assessments upon such terms
as the Town may determine.
Section 5.05. FURTHER ASSURANCES. The Town will adopt, make, execute and
deliver any and all such further resolutions, instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate the performance of this Resolution, '
and for the better assuring and confirming unto the Owners of the Bonds the rights and benefits
provided in this Resolution.
Section 5.06. PRIVATE ACTIVITY BOND LIMITATION. The Town shall assure that the
proceeds of the Bonds are not so used as to cause the Bonds to satisfy the private business
tests of section 141 (b) of the Tax Code or the private loan financing test of section 141 (c) of the
Tax Code.
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Section 5.07. FEDERAL GUARANTEE PROHIBITION. The Town shall not take any
action or permit or suffer any action to be taken if the result of the same would be to cause any
of the Bonds to be "federally guaranteed" within the meaning of section 149(b) of the Tax Code.
Section 5.08. NO ARBITRAGE. The Town shall not take, or permit or suffer to be taken
by the Finance Director or otherwise, any action with respect to the proceeds of the Bonds
which, if such action had been reasonably expected to have been taken, or had been
deliberately and intentionally taken, on the date of issuance of the Bonds would have caused
the Bonds to be "arbitrage bonds" within the meaning of section 148 of the Tax Code.
Section 5.09. REBATE REQUIREMENT. The Town shall take any and all actions
necessary to assure compliance with section 148(f) of the Tax Code, relating to the rebate 'of
excess investment earnings, if any, to the federal government, to the extent that such section is
applicable to the Bonds. Earnings on any reserve fund established under this Resolution shall
be used for rebate purposes before any application thereof as credits to the Redemption Fund
under Section 4.03(E). .
Section 5.10. YIELD OF THE BONDS. In determining the yield of the Bonds to comply
with Sections 5.08 and 5.09 hereof, the Town will take into account redemption (including
premium, if any) in advance of maturity based on the reasonable expectations of the Town, as
of the Closing Date, regarding prepayments of Assessments and use of prepayments for
redemption of the Bonds, without regard to whether or not prepayments are received or Bonds
redeemed.
Section 5.11. AMENDMENT. Without the consent of the Owners of the Bonds, the
Town may amend this Resolution to add, modify or delete provisions if necessary or desirable
to assure compliance with Section 148(f) of the Tax Code, or as otherwise required, to assure
the exemption from federal income taxation of interest on the Bonds.
Section 5.12. MAINTENANCE OF TAX-EXEMPTION. The Town shall take all actions
necessary to assure the exclusion of interest on the Bonds from the gross income of the
Owners of the Bonds to the same extent as such interest is permitted to be excluded from
gross income under the Tax Code as in effect on the date of issuance of the Bonds.
Section 5.13. CONTINUING DISCLOSURE. The Town hereby covenants and agrees
that it will comply with and carry out all of the provisions of any continuing disclosure relating to
the Bonds. Notwithstanding any other provision of this Resolution, failure of the Town to comply
with any continuing disclosure shall not be considered an event of default.
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ARTICLE VI
INVESTMENT OF FUNDS
Section 6.01. DEPOSIT AND INVESTMENT OF MONEYS IN FUNDS. Subject in all
respects to the provisions of Section 6.02, moneys in any fund or account created or
established by this Resolution and held by the Finance Director shall be invested by the
Finance Director in Permitted Investments. The following shall apply to such investments:
(A) Investments. In the absence of any such Officer's Certificate, the Finance
Director shall invest any such moneys in Permitted Investments described (f) in the definition of
Permitted Investments, which funds, by their terms mature prior to the date on which such
moneys are required to be paid out hereunder. Obligations purchased as an investment of
moneys in any fund shall be deemed to be part of such fund or account, subject, however, to
the requirements of this Resolution for transfer of interest earnings and profits resulting from
investment of amounts in funds and accounts;
(B) Principal or Agent. The Finance Director may act as principal or agent in the
acquisition or disposition of any investment. The Finance Director shall incur no liability for
losses arising from any investments made pursuant to this Section;
(C) Commingling. Subject in all respects to the provisions of Section 5.09,
investments in any and all funds and accounts may at the discretion of the Finance Director be
commingled in a separate fund or funds for purposes of making, holding and disposing of
investments, notwithstanding provisions herein for transfer to or holding in or to the credit of
particular funds or accounts of amounts received or held by the Finance Director hereunder,
provided that the Finance Director shall at all times account for such investments strictly in
accordance with the funds and account~ to which they are credited and otherwise as provided
in this Resolution;
(D) Sales. The Finance Director shall sell at the highest price reasonably obtainable,
or present for redemption, any investment security whenever it shall be necessary to provide
moneys to meet any required payment, transfer, withdrawal or disbursement from the fund or
account to which such investment security is credited and the Finance Director shall not be
liable or responsible for any loss resulting from the acquisition or disposition of such investment
security in accordance herewith; and
(E) Finance Director. For any funds held by the Finance Director, the foregoing
provisions of this Section 6.01 shall also apply, except that an Officer's Certificate shall not be
required. For such funds the Finance Director shall keep records or accounts of all
expenditures or disbursements therefrom which records shall be available for inspection during
business hours on any Business Day upon prior written request.
Section 6.02. ACQUISITION, DISPOSITION AND VALUATION OF INVESTMENTS.
The following shall apply to investments of funds and accounts under this Resolution:
(A) Fair Market Value. Except as otherwise provided in subsection (B) of this
Section, the Town covenants that all investments of amounts deposited in any fund or account
under this Resolution, or otherwise containing gross proceeds of the Bonds (under section 148
of the Tax Code) shall be acquired, disposed of and valued (as of the date that valuation is
required by this Resolution or the Tax Code) at Fair Market Value.
- 23-
(B) Reserve Fund. Investments in funds or accounts (or portions thereof) that are
subject to a yield restriction under applicable provisions of the Tax Code, and (unless valuation
is undertaken at least annually) investments in any reserve fund, shall be valued at their
present value (within the meaning of section 148 of the Tax Code).
Section 6.03. LIABILITY OF TOWN. The Town shall not incur any responsibility in
respect of the Bonds or this Resolution other than in connection with the duties or obligations
explicitly provided herein or in the Bonds. The Town shall not be liable to any Owner in
connection with the performance of its duties hereunder, except for its own gross negligence or
willful default. The Town shall not be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements of the Agent herein or of
any of the documents executed by the Agent in connection with the Bonds, or as to the
existence of a default thereunder. Under this Resolution, the following shall apply to the Town:
(A) Reliance. In the absence of bad faith, the Town, including the Finance Director,
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Town and conforming to the
requirements of this Resolution. The Town, including the Finance Director, shall not be liable
for any error of judgment made in good faith unless it shall be proved that it was negligent in
ascertaining the pertinent facts;
(B) Expenditures. No provision of this Resolution shall require the Town to expend
or risk its own general funds or otherwise incur any financial liability (other than with respect to
the foreclosure proceedings for delinquent Assessments and the payment of fees and costs of
the Agent) in the performance of any of its obligations hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured to it;
(C) Counsel. The Town may rely and shall be protected in acting or refraining from
acting upon any notice, resolution, request, consent, order, certificate, report, warrant, bond or
other paper or document believed by it to be genuine and to have been signed or presented by
the proper party or proper parties. The Town may consult with counsel, who may be the Town
Attorney, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder
in good faith and in accordance therewith;
(D) Owners. The Town shall not be bound to recognize any person as the Owner of
a Bond unless duly registered and until such Bond is submitted for inspection, if required, and
his title thereto satisfactorily established, if disputed; and
(E) Certificate. Whenever in the administration of its duties under this Resolution
the Town shall deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of willful misconduct on the part of the
Town, be deemed to be conclusively proved and established by a certificate of the Agent or
other expert retained by the Town for the purposes hereof, and such certificate shall be full
warrant to the Town for any action taken or suffered under the provisions of this Resolution or
any Supplemental Resolution upon the faith thereof, but in its discretion the Town may, in lieu
thereof, accept other evidence of such matter or may require such additional evidence as to it
may deem reasonable.
- 24-
Section 6.04. EMPLOYMENT OF AGENTS BY TOWN. In order to perform its duties
and obligations hereunder, the Town may employ such persons or entities as it deems
necessary or advisable. The Town shall not be liable for any of the acts or omissions of such
persons or entities employed by it with reasonable care and in good faith hereunder, and shall
be entitled to rely, and shall be fully protected in doing so, upon the opinions, calculations,
determinations and directions of such persons or entities.
- 25-
ARTICLE VII
MODIFICATION OR AMENDMENT
Section 7.01. AMENDMENTS PERMITTED. This Resolution and the rights and
obligations of the Town and of the Owners of the Bonds may be modified or amended at any
time by a Supplemental Resolution pursuant to the affirmative vote at a meeting of Owners, or
with the written consent without a meeting, of the Owners of at least sixty percent (60%) in
aggregate principal amount of the Bonds then Outstanding, exclusive of Bonds disqualified as
provided in Section 7.04. No such modification or amendment shall (i) extend the maturity of
any Bond or reduce the interest rate thereon, or otherwise alter or impair the obligation of the
Town to pay the principal of, and the interest and any premium on, any Bond, without the
express consent of the Owner of such Bond, or (ii) permit the creation by the Town of any
pledge or lien upon the Assessments superior to or on a parity with the pledge and lien created
for the benefit of the Bonds (except as otherwise permitted by the Act, this Resolution, the laws
of the State of California), or reduce the percentage of Bonds required for the amendment
hereof, or to amend this Section 7.01. Any such amendment may not modify any of the rights or
obligations of the Agent without its written consent. This Resolution and the rights and
obligations of the Town and of the Owners may also be modified or amended at any time by a
Supplemental Resolution, without the consent of any Owners, only to the extent permitted by
law and only for anyone or more of the following purposes:
(A) Additions. To add to the covenants and agreements of the Town in this
Resolution contained, other 'covenants and agreements thereafter to be observed, or to limit or
surrender any right or power herein reserved to or conferred upon the Town;
(B) Affecting Bonds. To make modifications not adversely affecting any
outstanding series of Bonds of the Town in any material respect;
(C) Corrections: To make such provisions for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective provision contained in this Resolution, or
in regard to questions arising under this Resolution, as the Town may deem necessary or
desirable and not inconsistent with this Resolution, and which shall not adversely affect the
rights of the Owners of the Bonds; or
(D) Tax Exemption. To make such additions, deletions or modifications as may be
necessary or desirable to assure exemption from federal income taxation of interest on the
Bonds.
Section 7.02. OWNERS' MEETINGS. The Town may at any time call a meeting of the
Owners. In such event the Town is authorized to fix the time and place of said meeting and to
provide for the giving of notice thereof and to fix and adopt rules and regulations for the conduct
of said meeting.
Section 7.03. PROCEDURE FOR AMENDMENT WITH WRITTEN CONSENT OF
OWNERS. The Town may at any time adopt a Supplemental Resolution amending the
provisions of the Bonds or of this Resolution or any Supplemental Resolution; to the extent that
such amendment is permitted by Section 7.01 hereof, to take effect when and as provided in
this Section 7.03. With respect to such Supplemental Resolution under this Section 7.03, the
following shall apply:
- 26-
(A) Request. A copy of such Supplemental Resolution, together with a request to
Owners for their consent thereto, shall be mailed by first class mail, by the Finance Director to
each Owner of Bonds Outstanding, but failure to mail copies of such Supplemental Resolution
and request shall not affect the validity of the Supplemental Resolution when assented to as in
this Section provided;
(B) Consents. Such Supplemental Resolution shall not become effective unless
there shall be filed with the Agent the written consents of the Owners of at least sixty percent
(60%) in aggregate principal amount of the Bonds then Outstanding (exclusive of Bonds
disqualified as provided in Section 7.04) and a notice shall have been mailed as hereinafter in
this Section provided. Each such consent shall be effective only if accompanied by proof of
ownership of the Bonds for which such consent is given, which proof shall be such as is
permitted by Section 8.04. Any such consent shall be binding upon the Owner of the Bonds
giving such consent and on any subsequent Owner (whether or not such subsequent Owner
has notice thereof) unless such consent is revoked in writing by the Owner giving such consent
or a subsequent Owner by filing such revocation with the Agent prior to the date when the
notice hereinafter in this Section provided for has been mailed; and
(C) Notice. After the Owners of the required percentage of Bonds shall have filed
their consents to the Supplemental Resolution, the Town shall mail a notice to the Owners in
the manner above provided in this Section for the mailing of the Supplemental Resolution,
stating in substance that the Supplemental Resolution has been consented to by the Owners of
the required percentage of Bonds and will be effective as provided in this Section but failure to
mail copies of said notice shall not affect the validity of the Supplemental Resolution or
consents thereto). Proof of the mailing of such notice shall be filed with the Agent. A record,
consisting of the papers required by this Section 7.03 to be filed with the Agent, shall be proof
of the matters therein stated until the contrary is proved. The Supplemental Resolution shall
become effective upon the filing with the Agent of the proof of matters therein of such notice,
and the Supplemental Resolution shall be deemed conclusively binding (except as otherwise
hereinabove specifically provided in this Article) upon the Town and the Owners of all Bonds at
the expiration of sixty (60) days after such filing, except in the event of a final decree of a court
of competent jurisdiction setting aside such consent in a legal action or equitable proceeding for
such purpose commenced within such sixty-day period.
Section 7.04. DISQUALIFIED BONDS. Bonds owned or held for the account of the
Town, excepting any pension or retirement fund, shall not be deemed Outstanding for the
purpose of any vote, consent or other action or any calculation of Outstanding Bonds provided
for in this Article VII, and shall not be entitled to vote upon, consent to, or take any other action
provided for in this Article VII.
Section 7.05. EFFECT OF SUPPLEMENTAL RESOLUTION. From and after the time
any Supplemental Resolution becomes effective pursuant to this Article VII, this Resolution
shall be deemed to be modified and amended in accordance therewith, the respective rights,
duties and obligations under this Resolution of the Town and all Owners of Bonds Outstanding
shall thereafter be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and conditions of any such
Supplemental Resolution shall be deemed to be part of the terms and conditions of this
Resolution for any and all purposes.
Section 7.06. ENDORSEMENT OR REPLACEMENT OF BONDS ISSUED AFTER
AMENDMENT. The Town may determine that Bonds issued and delivered after the effective
- 27-
date of any action taken as provided in this Article VII shall bear a notation, by endorsement or
otherwise, in form approved by the Town, as to such action. In that case, upon request of the
Owner of any Bond Outstanding at such effective date and presentation of his Bond for that
purpose at the Principal Office of the Agent or at such other office as the Town may select and
designate for that purpose, a suitable notation shall be made on such Bond. The Town may
determine that new Bonds, so modified as in the opinion of the Town is necessary to conform to
such Owners' action, shall be prepared, executed and delivered. In that case, upon request of
the Owner of any Bonds then Outstanding, such new Bonds shall be exchanged at the Principal
Office of the Agent without cost to any Owner, for Bonds then Outstanding, upon surrender of
such Bonds.
Section 7.07. AMENDATORY ENDORSEMENT OF BONDS. The provisions of this
Article VII shall not prevent any Owner from accepting any amendment as to the particular
Bonds held by such Owner, provided that due notation thereof is made on such Bonds.
- 28-
ARTICLE VIII
MISCELLANEOUS
Section 8.01. BENEFITS OF AGREEMENT LIMITED TO PARITIES. Nothing in this
Resolution, expressed or implied, is intended to give....to any person other than the Town, the
Agent and the Owners, any right, remedy or claim under or by reason of this Resolution. Any
covenants, stipulations, promises or agreements in this Resolution contained by and on behalf
of the Town shall be for the sole and exclusive benefit of the Owners and the Agent.
Section 8.02. SUCCESSOR AND PREDECESSOR. Whenever in this Resolution or any
Supplemental Resolution either the Town or the Agent is named or referred to, such reference
shall be deemed to include the successors or assigns thereof, and all the covenants and
agreements in this Resolution contained by or on behalf of the Town shall bind and inure to the
benefit of the respective successors and assigns thereof whether so expressed or not.
Section 8.03. DISCHARGE OF RESOLUTION. Subject to the provisions of Section
2.03 hereof, the Town may pay and discharge the entire indebtedness on all Bonds
Outstanding in anyone or more of the following ways:
(A) Payment. By paying or causing to be paid the principal of (including any Sinking
Fund Payments) and interest. and any premium on all Bonds Outstanding, as and when the
same become due and payable;
(B) Cash. By depositing with the Agent, in trust, at or before maturity, money which,
together with the amounts then on deposit in the Redemption Fund is fully sufficient to pay all
Bonds Outstanding, including all principal, interest and any applicable redemption premiums,
or;
(C) Federal Securities. By irrevocably depositing with the Agent, in trust, cash and
Federal Securities in such amount as the Town shall determine, as confirmed by an
independent certified public accountant, which will, together with the interest to accrue thereon
and moneys then on deposit in the Redemption Fund be fully sufficient to pay and discharge
the indebtedness on all Bonds, including all principal, interest and any applicable redemption
premiums, at or before their respective maturity dates;
(D) Actions. If such Bonds are to be redeemed prior to the maturity thereof notice of
such redemption shall have been given as in this Resolution provided or provision satisfactory
to the Agent shall have been made for the giving of such notice, then, at the election of the
Town, and notwithstanding that any Bonds shall not. have been surrendered for payment, the
pledge of the Assessments and other funds provided for in this Resolution and all other
obligations of the Town under this Resolution with respect to all Bonds Outstanding shall cease
and terminate, except only the obligation of the Town to payor cause to be paid to the Owners
of the Bonds not so surrendered and paid all sums due thereon, the obligation of the Town to
assure that no action is taken or failed to be taken if such action or failure adversely affects the
exclusion of interest on the Bonds from gross income for federal income tax purposes, and all
amounts owing to the Agent pursuant to Section 7.05 hereof; and thereafter Assessments shall
not be payable to the Agent. Notice of such election shall be filed with the Agent. Any funds
thereafter held by the Agent upon payments of all fees and expenses of the Agent, which are
- 29-
not required for said purpose, shall be paid over to the Town to be used by the Town as
provided in the Act and the Bond Law.
Section 8.04. EXECUTION OF DOCUMENTS AND PROOF OF OWNERSHIP. Any
request, declaration or other instrument which this Resolution may require or permit to be
executed by Owners may be in one or more instruments of similartenor, and shall be executed
by Owners in person or by their attorneys appointed in writing. Except as otherwise herein
expressly provided, the fact and date of the execution by any Owner or his attorney of such
request, declaration or other instrument, or of such writing appointing such attorney, may be
proved by the certificate of any notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state in which he purports to act, that the
person signing such request, declaration or other instrument or writing acknowledged to him the
execution thereof, or by an affidavit of a witness of such execution, duly sworn to before such
notary public or other officer. The ownership of registered bonds and the amount, maturity,
number and date of holding the same shall be proved by the registry books. Any consent,
request, declaration or other instrument or writing of the then registered Owner of any Bond
shall bind all future Owners of such Bond in respect of anything done or suffered to be done by
the Town or the Agent in good faith and in accordance therewith.
Section 8.05. WAIVER OF PERSONAL LIABILITY. No member, officer, agent or
employee of the Town shall be individually or personally liable ,for the payment of the principal
of, or interest or any premium on, the Bonds; but nothing herein contained shall relieve any
such member, officer, agent or employee from the performance of any official duty provided by
law.
Section 8.06. NOTICES AND DEMANDS. Any notice or demand hereunder to the
. Town or the Agent may be given or served by being deposited postage prepaid in a post office
letter box addressed (until another address is provided) as follows:
A) Town:
Director of Administrative Services
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
(B) Agent:
The Bank of New York Trust Company, N.A.
550 Kearny Street, Suite 600
San Francisco, CA 94108-2527
Attn: Corporate Trust Division
Section 8.07. PARTIAL INVALIDITY. If any Section, paragraph, sentence, clause or
phrase of this Resolution shall for any reason be held illegal or unenforceable, such holding
shall not affect the validity of the remaining portions of this Resolution. The Town hereby
declares that it would have adopted this Resolution and each and every other Section,
paragraph, sentence, clause or phrase hereof and authorized the issue of the Bonds pursuant
thereto irrespective of the fact that anyone or more Sections, paragraphs, sentences, clauses,
or phrases of this Resolution may be held illegal, invalid OJ unenforceable.
- 30-
Section 8.08. UNCLAIMED MONEYS. Anything contained herein to the contrary
notwithstanding, any moneys held by the Finance Director in trust for the payment and
discharge of the principal of, and the interest and any premium on, the Bonds which remains
unclaimed for two (2) years after the date when payments of principal, interest and any
premium have become payable, shall be repaid by the Finance Director to the Town as its
absolute property free from any trust, and the Finance Director shall thereupon be released and
discharged with respect thereto.
. Section 8.09. APPLICABLE LAW. This Resolution shall be governed by and enforced
in accordance with the laws of the State of California applicable to contracts made and
performed in the State of California.
Section 8.10. CONFLICT WITH ACT. In the event of a conflict between any provision of
this Resolution with any provision of the Act, the provision of the Act shall prevail over the
conflicting provision of this Resolution.
Section 8.11. CONCLUSIVE EVIDENCE OF REGULARITY; VALIDITY. Bonds issued
pursuant to this Resolution shall constitute conclusive evidence of the regularity of all
proceedings under the Act relative to their issuance and the levy of the Assessments. The
validity of the authorization and issuance of the Bonds shall not be dependent upon the
completion and/or acquisition of the Project or any part thereof or the performance by any
person or such person's obligation(s) with respect to the Project.
Section 8.12. PAYMENT ON BUSINESS DAY. In any case where the date of the
maturity of interest or of principal, (and premium, if any) of the Bonds or the date fixed for
redemption of any Bonds or the date any action is to be taken pursuant to this Resolution is
other than a Business Day, the payment of interest or principal, including Sinking Fund
Payments, (and any redemption premium) or the action need not be made on such date but
may be made on the next succeeding day which is a Business Day with the same force and
effect as if made on the date required and no additional interest shall accrue from such Interest
Payment Date until such Business Day.
Section 8.13. REPEAL OF INCONSISTENT RESOLUTIONS. Any resolution of the
Council, and any part of such resolution, inconsistent with this Resolution, is hereby repealed .to
the extent of such inconsistency.
Section 8.14. CONSULTANTS. All actions mandated by this Resolution to be
performed by the Finance Director may be performed by the designee thereof or such other
official of the Town or independent contractor, consultant or trustee duly authorized by the
Town to perform such action or actions in furtherance of all or a specific portion of the
requirements hereof.
Section 8.15. CERTIFIED COPIES. The Clerk shall cause to be furnished a certified
copy of this resolution to the Finance Director, to the Agent, and to the Auditor of the County.
Section 8.16. EFFECTIVE DATE OF THE RESOLUTION. This Resolution shall
become effective upon the date of its adoption.
- 31 -
RESOLVED by the Town Council (the "Council") of the Town of Tiburon (the "Town"),
County of Marin (the "County"), State of California, that:
WHEREAS, on June 4, 2003, this Council adopted its Resolution of the Town Council of
the Town of Tiburon of Intention to Make Acquisitions and Improvements," (the "Resolution of
Intention") under the Municipal Improvement Act of 1913, Division 12 of the Streets and
Highways Code of California, as amended and modified by other applicable laws (collectively,
the "Act") to initiate proceedings under the Act in and for the Town's Del Mar Utility Utility
Undergrounding Assessment District (the "Assessment District");
WHEREAS, by the Resolution of Intention, the Council provided that improvement
bonds as more particularly described herein (the "Bonds") would be issued thereunder and
reference to the Resolution of Intention is hereby expressly made for further particulars;
WHEREAS, this Council has completed its proceedings under the Resolution of
Intention for the levy of assessments, has caused all recordings and filings to be completed in
accordance with the requirements in and for the Assessment District and by the adoption of this
Resolution intends to provide for the issuance of the Bonds; and .
WHEREAS, this Council now intends to provide for the issuance of the Bonds upon the
security of a the unpaid assessments, all as hereinafter provided.
PASSED AND ADOPTED at the regular meeting of the Town Council of the Town of
Tiburon, State of California, on this day of 2005, by the following vote
to wit:
ATTEST:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS
COUNCILMEMBERS
DIANE CRANE IACOPI, TOWN CLERK
, MAYOR
TOWN OF TIBURON
EXHIBIT A
TOWN OF TIBURON
Del Mar Utility Utility Undergrounding Assessment District
Limited Obligation Improvement Bonds
TERMS AND CONDITIONS
The following terms and conditions shall be part of the within Resolution Authorizing the
Issuance of Refunding Bonds (the "Resolution of Issuance") as if set forth in the text thereof:
Principal Amount: Under Section 2.01, the actual aggregate principal amount of the.
Bonds is $ and the Bond Date is , 2005.
The first Interest Payment Date is March 2, 2006.
Principal Maturities and Interest: Under Section 2.02 the maturities and rates of
interest of the Bonds are as follows:
Maturity Date
(Seotember 2)
Principal
Amount ($)
Interest
Rate (%)
Together with $
"Term Bonds'), at the interest rate of
redemption hereunder.
Term Bonds maturing on September 2, 20_ (the
% per annum, subject to mandatory sinking fund
Bond Redemption: Under Section 2.03, the Redemption provisions are as follows:
Prepayment. Redemption. Each Outstanding Bond, or any portion of the
principal thereof, in the principal amount of $5,000 or any integral multiple of $5,000, will
be subject to mandatory redemption from any funds available therefor from proceeds of
prepayments deposited in the Prepayment Account, or to optional redemption from
sources other than prepayments, including the proceeds of refunding bonds, on any
Interest Payment Date in any year by giving notice as provided herein and by paying the
principal amount thereof, plus interest to the date of redemption and the applicable
Redemption Premium of 2% of the principal amount of the Bonds redeemed.
Excess Proceeds Redemption. Outstanding Bonds maturing in 2035, in the
principal amount of $5,000 or any iritegral multiple of $5,000, will be subject to
mandatory redemption at the par amount thereof, plus interest on August 2, 2005, from
any moneys in the Improvement Fund which are not otherwise used or required for
service connections or other related costs.
Mandatory Sinking Fund Redemption. The Bonds maturing on September 2,
20_, are subject to mandatory redemption, in part by lot, on September 2 in each year,
commencing September 2, 20_, from sinking fund payments from the redemption fund
EXHIBIT A
Page 1
at a redemption price equal to the principal amount thereof to be redeemed, without
premium, as follows:
Sinking Fund
Redemption Date
(SeDtember 2)
Principal Amount
To Be Redeemed
Funds:
Deposit to Funds: Under Section 4.01, on or before, the Closing Date, the Town shall
cause the following transfers and dE;lposits shall be made:
1 . $
2. $
3. $
to the Costs of Issuance Fund;
to the Reserve Fund; and
to the Improvement Fund.
EXHIBIT A
Page 2
EXHIBIT B
FORM OF BOND
United States of America
State of California
County of Marin
County of Registered
Number A- ---
Registered
***$***
LIMITED OBLIGATION
IMPROVEMENT BOND
TOWN OF TIBURON
Del Mar Utility Undergrounding Assessment District
INTEREST RATE
MATURITY DATE
CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT: ***
DOLLARS***
Under and by virtue of the Improvement Bond Act of 1915, Division 10 (commencing
with Section 8500) of the Streets and Highways Code (the "Act") the Town of Tiburon (the
Town) County of Marin, State of California, will, out of the redemption fund for the payment of
the bonds issued upon the unpaid portion of assessments made for the acquisition, work and
improvements more fully described in proceedings taken pursuant to Resolution of Intention No.
15-2003 adopted by the Town Council of the Town on June 4, 2003, pay to the registered
owner named above or registered assigns, on the maturity date stated above, the principal
amount stated above, in lawful money of the United States of America and in like manner will
pay interest at the rate per annum stated. above, payable semiannually on March 2 and
September 2 (each an "Interest Payment Date") in each year commencing on March 2, 2006.
This Bond bears interest from the Interest Payment Date next preceding its date of
authentication and registration unless it is authenticated and registered (i) prior to an Interest
Payment Date and after the close of business of the fifteen day preceding such Interest
Payment Date, in which event it shall bear interest from such Interest Payment Date, or (ii) prior
to the close of business on the fifteenth day of the calendar month preceding March 2, 2006, in
which event it shall ,bear interest from its date, until payment of such principal sum shall have
been discharged. Both the principal of and redemption premium hereon of matured bonds or
bonds called for redemption prior to maturity, if any, shall be paid upon surrender to The Bank
of New York Trust Company, N.A., as Authentication Agent, Registrar, Transfer and Paying
Agent (the "Agent"), in San Francisco, California, and interest hereon shall be paid by check or
draft mailed to the registered owner hereof at the registered owner's address as it appears on
the records of the Agent, or at such address as may have been filed with the Agent, for that
purpose, as of the fifteenth day of the calendar month immediately preceding each Interest
Payment Date; provided however, upon request in writing of an Owner of $1,000,000 or more in
aggregate principal amount of Bonds, such request having been made before fifteen calendar
days preceding an Interest Payment Date, such interest shall be paid on such Interest Payment
Date by wire transfer in immediately available funds to an account in the continental United
States designated by such Owner to the Agent.
This Bond will continue to bear interest after maturity at the rate above stated provided
that it is presented at maturity and payment hereof. is refused upon the sole ground that there
EXHIBIT B
Page 1
are not sufficient moneys in said redemption fund with which to pay same. If it is not presented
at maturity interest hereon will run only until maturity.
This Bond shall not be entitled to any benefit under the Act or the Resolution entitled "A
Resolution of the Town Council of the Town of Tiburon Authorizing Issuance of Limited
Obligation Improvement Bonds," (the "Resolution of Issuance") adopted by the Town Council on
February 2, 2005, or become valid or obligatory for any purpose, until the certificate of
authentication and registration hereon shall have been dated and signed by the Agent.
IN WITNESS WHEREOF, the Town of Tiburon has caused this Bond to be signed in
facsimile by the Director of Administrative Services of the Town and by its Town Clerk, and has
cause its corporate seal to be reproduced in facsimile hereon all as of the _ day of
,2005.
TOWN OF TIBURON
Heidi Bigall, Director of Administrative Services
Diane Crane lacopi, Town Clerk
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This is one of the bonds described in the within mentioned Resolution of Issuance.
Dated:
200
The Bank of New York Trust Company, N.A.
as Agent
By , Authorized Officer
(reverse side of bond)
ADDITIONAL PROVISIONS OF THE BOND
This Bond is one of several annual series of bonds of like date, tenor and effect, but
differing in amounts, maturities and interest rates, issued by the Town under the Act and the
Resolution of Issuance for the purpose of providing means for paying for the improvements and
the refunding of the bonds as more particularly described in said proceedings, and is secured
by the moneys in the redemption fund (as may be limited by the Resolution of Issuance) and by
the unpaid portion of said assessments made for the payment of said refunding, and, including
principal and interest, is payable exclusively out of said fund.
This Bond is transferable by the Owner hereof, in person or by the Owner's attorney
duly authorized in writing, at said office of the Agent, subject to the terms. and conditions
provided in the Resolution of Issuance, including the payment of certain charges, if any, upon
surrender and cancellation of this Bond. Upon such transfer, a new registered Bond or Bonds,
EXHIBIT B
Page 2
of any authoriz~d denomination or denominations, of the same maturity, and for the same
aggregate principal amount, will be issued to the transferee in exchange herefor.
Bonds shall be registered only in the name of an individual (including joint owners), a
corporation, a partnership or a trust.
Neither the Town nor the Agent shall be required to make such exchange or registration
of transfer of Bonds during the fifteen (15) days immediately preceding any Interest Payment
Date or any exchange or transfer of a Bond after such Bond has been called for redemption.
The Town and the Agent may treat the Owner hereof as the absolute owner for all
purposes, and the Town and the Agent shall not be affected by any notice to the contrary.
This Bond, or any portion of the principal thereof, in the principal amount of $5,000 or
any integral multiple of $5,000, will be subject to mandatory redemption from any funds
available therefore from the prepayments of assessments, and to optional redemption from
sources other than prepayments, including the proceeds of refunding bonds, on any Interest
Payment Date in any year by giving notice as provided herein and by paying the principal
amount thereof, plus interest to the date of redemption and the applicable Redemption
Premium as follows:
Redemotion Dates
Premium
On or before March 2,20_
March 2, 20_and September 2,20_
March 2,20_ and thereafter
Redemotion
%
_%
%
This Bond is a Limited Obligation Improvement Bond because, under the Resolution of
Issuance, the Town is not obligated to advance funds from the Town treasury to cover any
deficiency which may occur in the redemption fund for the bonds; however, the Town is not
prevented, in its sole discretion, from so advancing funds.
The bonds maturing on September 2, 20_ are subject to mandatory redemption, in part
by lot, on September 2 in each year, commencing September 2, 2020, from sinking fund
payments from the redemption fund at a redemption price equal to the principal amount thereof
to be redeemed, without premium, as follows:
Sinking Fund
Redemption Date
(SeDtember 2)
Principal Amount
To Be Redeemed
I hereby certify that the following is a correct copy of the signed legal opinion of Jones
Hall, A Professional Law Corporation, San Francisco, California, bond counsel:
(INSERT OPINION HERE)
EXHIBIT B
Page 3
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this bond, shall
be construed as though they were written out in full according to applicable laws or regulations:
TEN COM
TEN ENT
JT TEN
as tenants in common
as tenants by the entireties
as joint tenants with right of .
survivorship and not as tenants in common
UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list
ASSIGNMENT
For value received, the undersigned do(es) hereby sell, assign and transfer unto
(Name, Address and Tax Identification or Social Security Number of Assignee)
the within mentioned Bond and hereby irrevocably constitute(s) andappoint(s)
, attorney, to transfer the same on the registration books of the Agent, with full
power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature(s) on this
assignment must correspond with the
name( s) as written on the face of the
registered Bond in every particular without
alteration or enlargement or any change
whatsoever;
EXHIBIT B
Page 4
.
.
.
.
Town of Tiburon
STAFF REPORT
AGENDA ITEM L
TO:
Mayor and Members of the Town co~ J
Alex D. Mcintyre, Town Manager W'
2005 Refuse Collection Rate Application - Mill Valley Refuse Service
FROM:
SUBJECT:
MEETING DATE:
June 29, 2005
Mill Valley Refuse Service, Inc. (MVRS) has submitted its request for its annual rate increase.
The Town has had a franchise agreement with MVRS since 1965.
MVRS is requesting a one-year across the board rate increase of a 3.70% rate adjustment
effective July 1, 2005. In addition, the Tiburon Town Council adopted a resolution in April 2005
which instituted a garbage impact fee upon MVRS essentially equating to an additional 3.80%.
The total rate increase requested is 7.5%. A complete copy of the application is available in my
office for review. The proposed rates are attached as Exhibit A.
MVRS services the cities/towns of Belvedere, Corte Madera, Mill Valley, and Tiburon as well as
several unincorporated areas of Marin County. The Franchise Agreement between the Town of
Tiburon and MVRS guarantees an automatic cost-of-living rate adjustment each year tied to the
consumer price index. This year's automatic increase would have been approximately 2.20%
but the household hazardous waste costs attribute an addition 1.50%. A complete copy of the
rate application is available for review in my office. Mill Valley recently approved the same
7.50% increase.
In years past, the Town has engaged the services of Environmental Planning Consultants (EPC)
to review and affirm the analysis supporting the rate application. For a number of reasons, the
four cities/towns and the county opted not to retain EPC this year.
I believe that the rate increase is appropriate. However, I would suggest that the Town join with
the other three cities/towns and the county to require a mid-term evaluation of the system by
EPC and to make any reasonable changes to the operation to increase efficiency to mitigate any
significant increases next year. The cost for the EPC will be borne by MVRS.
Recommendation
It is recommended that the Town Council accept the Mill Valley Refuse Service, Inc. rate
application and approve the attached Eighteenth Amendment to Franchise Agreement
(Exhibit B) granting the rate increases.
Exhibits
A - Proposed 2005 Rates
B - Eighteenth Amendment to Franchise Agreement
EXHIBIT NO.-8-
DEBRIS BOX RATES FOR AS OF 7/1/2005
.
MILL VALLEY BELVEDERE CORTE MADERA TIBURON ALM,ALTO
MV COUNTY STRAWBERRY TV, HOME
4 YD 115 115 109 112 109
10YD 271 255 260 239 229
20YD 437 411 416 385 369
40YD 873 822 831 769 738
5YD DIRT 264 270 267 252 242
lOYD DIRT 392 397 389 377 363
4 YARD 6 1/2 FT WIDE
51"HIGH
54"LONG
WEIGHT 2,000 LB
5YD DIRT 12FT LONG
5FT WIDE
30" HIGH
WEIGHT CLEAN NO LIMIT
lOYD 12 FT LONG
5FT HIGH
5FT WIDE
WEIGHT 4,000 LB
10YD DIRT 13FT LONG
8FT WIDE
3FT HIGH
WEIGHT CLEAN NO LIMIT
.
20 YARD 16FT LONG
8FT WIDE
54 IN HIGH
WEIGHT 8,000 LB ,
)40 YARD 22FT LONG
8 FT WIDE
6'10" HIGH
WEIGHT 16,000 LB
Any overweight rolloff items will be charged at $80.00 per ton. This includes compactors, dirt, and debris boxes.
MVRS Reserves the right to refuse pickup of any item loaded in an unsafe manner
MILL VALLEY TIBURON
4 YD 6 4
10YD 14 8
20YD 22 14
40YD 45 27
5YD DIRT 14 9
10YD DIRT 20 13
.
.
.
.
EXHIBIT NO.~
EIGHTEENTH AMENDMENT TO FRANCHISE AGREEMENT
The parties are the TOWN OF TIBURON, a municipal corporation organized and existing
under and by virtue ofthe laws of the State of California, hereinafter referred as "Town," and MILL
V ALLEY REFUSE SERVICE, INC." a California corporation hereinafter referred to as "Company."
WITNESSETH
WHEREAS, the parties heretofore entered into a written agreement dated November 12,
1965 and renewed a modified Solid Waste Management Agreement on December 6, 1995, relating to
the collection and disposal of all refuse within the Town, and have amended said rates for services
referred to in the agreement on several occasions, and
I WHEREAS, the parties now desire to amend said agreement in the respects hereinafter set
forth; and
WHEREAS, the Town has heretofore held a hearing in the matter, and has determined that
said further amendment is proper and in the best interests of its citizens; and
WHEREAS, it has been determined that the rates charged by the Company for the services
referred to herein should be modified and adjusted as hereinafter set forth.
NOW, THEREFORE, it is mutually agreed that the written agreement between the parties
dated December 6, 1995, and the subsequent amendments thereto, shall be amended in the following
manner, effective for the period July 1, 2005 to June 30, 2006:
Effective July 1, 2005, the monthly rates shall be those set forth in
Exhibit A, which is attached hereto and incorporated herein by
reference. These rates include and incorporate a seven point five
percent (7.50%) adjustment to all rates for solid waste collection and
recycling for all residential and commercial customers.
Other than as herein specifically provided, the aforesaid Agreement, and the amendments thereto, are
hereby ratified and confirmed to be and shall continue in full force and effect. .
Eighteenth Amendment to MVRS Franchise Agreement - Adopted 06/29/05
-1-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this 29th
day of June, 2005. .
ATTEST:
DIANE CRANE IACOPI
Town Clerk
TOWN OF TIBURON
MILES BERGER
Mayor
MILL V ALLEY REFUSE SERVICE, INC.
By:
Its:
Eighteenth Amendment to MVRS Franchise Agreement - Adopted 06/29/05
-2-
.
.
.~
.
.
.
[5) ~~~~w~ rnJ
mJ JUN 2 3 2005 ill)
Jocelyn McDonnell
687 Hilary Drive
Tiburon, CA 94920
415-435-1365
TOWN COUNCIL
LA TEMAIL #-LQ.
MEETING DATE ~ -J.. 9-d(
T.oWN CLERK
TOWN OF TIBURON
June 24, 2005
Tiburon Town Hall
Tiburon Town Council
1505 Tiburon Blvd.
Tiburon, CA 94929
Miles Berger, Mayor, Paul Smith, Vice Mayor, Alice Fredericks, Tom Gram & Jeff Slavitz,
Councilmembers
Re: 689 Hilary Drive - Major AdditionsNariance requested by Ignatius Tsang
Dear Mayor and Councilmembers:
The Mission Statement on the business card of Ignatius Tsang reads:
Tsang Architecture creates meaningful Architecture through a thoughtful process.
Our Architecture is contextual and innovative.
Architecture is a celebration of Life.
When Mr. Tsang introduced himself to me I told him I had a concern that he wanted to add a two-story
house and I asked if he was going to live in the house or flip it. He never said he was going to flip it. He
began talking about his children, their ages and what they were doing in school. I presumed, wrongfully,
that Mr. Tsang intended to be my new neighbor. I have a firm belief in the WinlWin concept in my life.
The first time Mr. Tsang showed me his projected Major AdditionsNariance it was a three-story house. I
worked with Mr. Tsang and asked him to be sensitive to the privacy of our neighbors across the street
because a two story house would impact their privacy dramatically much less a three story house. I
suggested he go to a Design Review Board (DRB), meeting so he would understand the process of Tiburon,
since he had never built in our community before and that he would want to get through the process as
expeditiously as possible. I also suggested he contact each of the neighbors to be impacted and to also
meet with them all, on a Saturday, before being on the Agenda of the DRB. I asked him to submit a
lighting plan as his house was above the neighbors across the street and lights would impact their living
rooms, bedrooms and privacy. Mr. Tsang said he was not required to submit a lighting plan, because the
house was a remodel.
When Mr. Tsang's story poles were being installed I called him to let him know the poles in the back yard
were not in alignment and needed.iD be corrected before members of the DRB arrived. Friday, April 15th I
heard from a neighbor that Mr. Tsang told her that he planned to sell his property to a Soccer Mom and this
was the first time I heard that Mr. Tsang had no intention of being my neighbor.
When Mr. Tsang met with the neighbors of 689 Hilary Drive, April 16, 2005, he presented an exquisite
model of a major addition. However, this model is out of character for the existing one-story houses in the
neighborhood of Hawthorne Terrace and would be more appropriate for Gilmartin Drive or Belvedere.
Seven directly impacted neighbors and Mr. Tsang met Saturday, April 16th from 10:00AM to 12:30PM and
expressed their concern regarding his project with the size, bulk, mass, encroachment of privacy and loss of
natural sun light as unacceptable. His project would appear as a three-story structure from street level and
is looking taller than the house at 30 Del Mar that encroaches on the tranquility of our neighborhood from
above. Several suggested plans were made available by the neighbors during the morning meeting. Mr.
Tsang told us this was his first attempt at a complete remodel and implied he knew better than we did. We
all agreed we did not want him to lose money on his project and we did not want to lose the integrity of our
neighborhood.
,
With the extension of the garage toward the front I am losing view from two windows, I would ask that the
garage be moved back 6 one-half feet to return one of the two windows Mr, Tsang is taking. I would also
ask that the side door exiting from Mr. Tsang garage, toward the bedroom side of my home not be placed
inline with any windows of my home.
.
I am very proud of the unique neighborhood I live in. We do not have the strong wind of the houses further
up the hills.ofTiburon, We have a flat street and I have watched upwards of a dozen children at once
playing ball andtag on this level block. Neighbors talk to each other. I have a strong community spirit, as
my history of being a volunteer and past board member of St. Hilary's will show. In addition I have
worked with the Town of Tiburon, Lou Bnmini, a representative of CalTrans and St. Hilary's when I was
Hawthorne Terrace President. The neighborhood and St. Hilary's worked together to garner sufficient
warrants to qualify to get the Traffic Light installed at Rock Hill and Tiburon Blvd. I worked with my
community, personally recommending the Handicapped Parking access near the bus stop at the foot of
Gilmartin during my years on the Park and Open Space.
I take issue with the mission statement reading:
Tsang Architecture creates meaningful Architecture through a thoughtful process.
One day, standing in his driveway, Mr. Tsang suggested that the shadow on my windows showed that if he
went up to the height he wants, it would not impact my loss of daylight from my windows. I explained to
Mr. Tsang that the loss is when you look out the window, not into the window,
His thoughtful process also used existing pine trees as story poles. I am disappointed that on two separate
occasions he and those he hired to do the work needed to be asked to install story poles correctly. I am sure
using pine trees as story poles does not comply with Town of Tiburon guidelines.
The neighbors have encouraged Mr. Tsang to expand his structure on a one-story level. Mr. Tsang does
not want to incur the expense of cutting into the hill. Mr. Tsang told me at the Saturday meeting, he needed
to go up and have the large mass of his structure because he wanted to take advantage ofthe great school
systems between St. Hilary's and Reed Union School District and the future children needed a larger house.
I pointed to houses on the block and showed him which homes raised one, two, three, four, five (the house
on the other side of Mr. Tsang's property), and seven children. All families in a one story home.
.
My neighbors and myself are not responsible for what ever the Realtor told Mr. Tsang to make the sale.
The neighborhood should not be punished if Mr. Tsang took the word ofthe Realtor and did not do his own
research properly, Other potential buyers of property on Hilary Drive have done their due diligence to [md
the possibility of going up to a second or third story before they bought the property. Mr. Tsang did not.
I am asking the Tiburon Town Council please consider the long existing quality and integrity of our single
story neighborhood and to not set a precedent for second story homes on the 600 block of Hilary Drive.
The insensitive design to this neighborhood consists of mass, bulk, blocking natural daylight and
imposing on the privacy of neighbors. There is a conflict of exterior elements, stucco and wood, no
lighting plan, no landscape plan and no drainage plan. On the color story board, the gold stucco first
presented and the green stucco for the second presentation are both called ICI Seashore.
Mr. Tsang's Mission Statement: Architecture is a celebration of life, please help Hawthorne Terrace
Homeowners to celebrate the continued life of our family neighborhood with its single story homes.
On behalf of the Hawthorne Terrace Homeowner's, please accept my appreciation for your continued
volunteer time and effort as you work for the continued betterment of Tiburon,
Sincerely,
Jocelyn McDonnell
415-435-1365
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TOWN CLERK
TOWN OF TIBURON
June 24, 2005
lYfEMAIL ,
eTiburon Town Council
Town Council Chambers
1505 Tiburon Blvd.
Tiburon, CA 94920
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F.M'iim:m~ ~ t1\tl - <. U~l - - --Or
Subject: Appeal of Site Plan and Architectural Review Application
for 689 Hilary Drive, Tiburon.
Dear Members of the Council,
Mr. Ignatius Tsang purchased the property at 689 Hilary Drive in March 2005.
Mr. Tsang proposes to make major modifications to the property. In that connection,
Mr. Tsang invited his neighbors to review his proposed additions. Several residents of the neighborhood
attended the presentation on Saturday, April 16, 2005. We appreciate Mr. Tsang's courtesy.
During his presentation, Mr.Tsang informed us that in addition to reducing side yard setback from
legally required limits, he planned to add a second story to the house. We also learned that Mr. Tsang does not
plan to live in the house himself but to sell the house after making the additions and improvements, hoping to
make a profit from the transaction. Almost every person, who attended the presentation, expressed opposition
to the addition of a second story.
In spite of the opposition, Mr. Tsang did not modify his application to delete the addition of a second
story to his property.
A hearing on the application was held on April 21, 2005, before the Design Review Board (Board). At
_he hearing, several persons expressed their concerns about Mr. Tsang's proposed additions. In particular they
xpressed their opposition to the addition of a second story. Mr. Tsang was advised to scale down the proposed
additions to the property. Mr.Tsang filed a revised plan for the proposed additions on May 9, 2005.
A further hearing was held on May 19, 2005. At that hearing, parties expressed that even the modified
plans did not address their concerns. In response to the concerns expressed, Mr. Tsang made minor
modifications to his proposal. The Design Review Board approved Mr. Tsang's proposed modifications along
with his proposal to build a second story.
Even with all the modifications, the approved plans still do not address the major community concerns
raised at the hearings, in particular the addition of a second story to a single story neighborhood. This is
particularly important because all the homes on both sides of Hilary Drive between Rock Hill Drive and Mara
Vista Street are single story homes. The neighbors want to maintain the single-story character ofthe
community. Approving a second story installation for one dwelling would set a precedent (as it has in other
areas) for other homes requesting additions of a second story which will in most instances take away views of
the Bay, San Francisco, Sausalito, Belvedere, Mount Tamalpais and the hills and impose on the privacy of
residents. In addition, it will block sunlight from the house at 687 Hilary Drive.
In addition, Mr. Tsang has not submitted any plans for landscaping, lighting or drainage with the filing
of his application for modifications. .The unavailability of such plans makes it impossible to determine the totaI'
impact of the proposed modifications.
We are fully aware that change is inevitable, but when the change unnecessarily decreases the quality of
life for others, then it is inexcusable. We believe that if Mr. Tsang was to move his planned expansion to the
back of his lot, it would eliminate the need for a second story and consequently, the impact and hard feelings
this project will create for the neighborhood.
. Further, we would like Mr. Tsang's house to fit in the context ofthe neighborhood, a design that would
ot scream "Look at me". His proposed design will create a home that willbe out of proportion to the other
homes in the neighborhood.
,
Finally, while we have no objection to Mr. Tsang making a profit by speculating in real estate market in
our neighborhood, we do take a great exception to the profit being made at our expense. Accordingly, we the .
undersigned request that the Town Council reverse the Design Review Board's decision to allow a second story
addition to Mr.Tsang's property. .
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IDWN CLERK
.TOWN OF TIBURON
Jean M, Stewart
696 Hilary Dr.
Tiburon, Ca. 94920
PhA15-847-3223 Fax (212) 208-4546
.
To: The Town of Tiburon Design Board / Kirk Beales
Town Hall
1505 Tiburon Blvd.
Tiburon, Ca, 94920
TOVVN COUNCIL
LATE MAIL' 10
MEETING DATE ~ -29-t1C
June 19,2005
Re: The June 29th hearing for the renovation project at 689 Hilary Dr.
Dear Mayor, Miles Berger,
Council Members, Paul Smith, Alice Fredericks, Tom Gram & Jeff Slavitz;
As a resident less than 300 feet from the proposed major renovation project at 689 Hilary
Drive, part of the Hawthorne Terrace development, I hereby notify the Tiburon Town
Council of my opposition to the magnitude of the new owner Mr. Tsang's proposed
remodel and addition.
.
Mr, Tsang invited the residents Saturday on April 16th, to view his plans and built scale
model that he would be using for the design review hearing on Thursday April 21, 2005,
Seven neighbors were in attendance, most of which would have a direct impact from the
proposed project.
The neighbors in attendance, spent 2 l;2 hours with Mr, Tsang and expressed concerns
about the following issues:
1. the magnitude of a second story does not fit the character of the neighborhood
2, the neighbor next door will lose sunlight from the second story
3, 'the next door neighbors and the 2 homes directly across the street would lose
privacy due to the excessive height of about 40 feet. * ( see below)
4. 4, No lighting plan has been prepared to show a house of that square footage
which is double to the other homes on Hilary Drive, and the impact ofthe
amount of light emitted from the large numbers of windows on the two story
home at night.
5, The fact that this home will set a precedence from this point forward, that all
single story homes can be converted to two stories which will impede residents
views, due to the nature of the percentage of gradation of the topography.
.
.
.
.
6. We were aware that the listing realtor of the property David Gilbert had told Mr.
Tsang he could build a two or THREE story since there was only a hill behind
him and no residences with views to impede.
7. We were also aware that this property was merely a profit property to "flip" for
him and that we understood his concerns were not the same as ours since he
would not be living there.
8. The style of the home is not in fitting with the character or scale of the
neighborhood. There is no home on Hilary Drive in the 600 Block that
resembles anything like this, .
Understanding Mr.Tsang's desire to maximize his return by building the largest square.
footage property, the neighbors had the following counter proposals for Mr. Tsang:
1. push it back towards the rear of the structure as not to impede their privacy or
right to sunlight due to the extreme height
2. make a single story only and add square footage in the back of the property, by
cutting into the hillside
3. reduce the numbers of window on the second story
4, draw a proposed lighting plan, landscape plan and drainage plan
Mr. Tsang has deceived the neighbors on more than one occasion. The mere fact that he
is an architect, has his own construction crew, and built several "spec homes' in the past
seems to give him more arrogance, Mr.Tsang basically stated in meetings with him, that
he knows what types of homes people will want to buy and that if we don't like his plans
then that is unfortunate because he can not please everyone he has a right to do what he
wants with his property, since he hopes it will sell to a "soccer mom".
I do hope that the Tiburon Town Council understands that the magnitude of this project is
detrimental in many ways to the integrity and future ofthe neighborhood as well as
invading the rights to privacy of the immediate residents. I do hope you give serious
considerations to the residents and their views, as most of them have been the original
owners of these homes and this neighborhood is a community that should not be
compared to any other neighborhood in Tiburon. I understand that the Town of Tiburon
is not alone in these conflicts of spectculators denigrating lovely neighborhoods such as
the one I love and live in.
ely,
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Noel D.. & Jennifer S. Isaac
20 Del Mar Drive, Tiburon, CA 94920 Tel: 415-7895354
LATE MAll #-A-
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Tiburon Town Council
Town Council Chambers
1505 Tiburon Boulevard
Tiburon
CA 94920
TOV\f~)J COUNCIL
LATE rV~AIL' 1'0 JUN 232005
June 23, 2005
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Re: The appeal of the Site Plan and Architectural Review
Application for 689 'Hilary Drive, Tiburon.
Dear Members of the Town Council
This letter is in support of the appeal that has been filed in regards to
the DRB's decision to conditionally approve the plans submitted by
Ignatius Tsang.
.
As stated in our letter to the DRB dated April 19, 2005 the planned
addition would not adversely affect our views. Our greater concern is
that approval of the second story addition is another step in the
erosion of the integrity of our neighborhood.
Considering the volume and spectrum of design applications that are
received in the Town the DRB' does an excellent job in carrying out its
charter. However mistakes are occasionally made. For example, just
over 5 years ago the DRB approved the design of the house that now
stands at 30 Del Mar Drive next to our home (see attached picture).
This two-story house replaced a single story home much like those in
our neighborhood. At the DRB meeting held on April 21, 2005, when
the initial plans for 689 Hilary Drive first came up for approval, one
member of the Board described the 30 Del Mar house as an
abomination.! It probably would not be approved today. .
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The house at 30 Del Mar is on the perimeter of our neighborhood, but
its presence is now felt by all of us who live here. We do not want
additional approvals of second story additions to be the thin edge of
the wedge that drives itself into our neighborhood, thereby.
destroying its unique character forever.
We do not have a problem with the developer, Mr. Tsang,
remodeling his property, but we strongly believe that the final
approved design should reflect the character of our neighborhood as
a whole. We therefore would 'implore the Town Council to overturn
the DRB's conditional approval of a design which does not meet with
that objective.
Yours truly,
affi
JlIJZJ1:2<~
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Noel & Jennifer Isaac
30 Del Mar Drive, Tiburon
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LATE MAI:L # / D
697 Hilary Drive
Tiburon, CA 94920
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Tel (415) 435-9958
Fax (415) 435-6246
I' ;"1 ,) ':l 2005
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PLAj\.J'j\1Jl'J,C:. Di\/lS}()i"j
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June 23, 2005
Mayor Miles Berger
Members of Town Council
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Re: Appeal of Site Plan and Architectural Review Application
for 689 Hilary Drive, Tiburon
Gentlemen:
My feeling about the drastic changes proposed, as mentioned in my prior letter to the
Planning Commission, has not changed in the least.
Just standing in front of 689 Hilary Drive and viewing the storyboards make me
shudder. It will be totally out of proportion to the size of the lot and the entire block of
existing residences.
My position is that the decision reached by the Planning Board should be overruled.
Thus, leave the neighborhood as is - a single story residential area.
Sin~ 7l1~
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~ JUN 2 3 2005 lW
Paul Marin
TOWN CLERK
TOWN OF TIBURON
TO\fVN COUNCil
LA TEMAIL #
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Town of Tiburon
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AGENDA ITEM 10
STAFF REPORT
TO:
FROM:
SUBJECT:
MEETING DATE:
PROJECT DATA
MAYOR AND MEMBERS OF TOWN COUNCIL
DANIEL M. WATROUS, PLANNING MANAGER
689 HILARY DRIVE; APPEAL OF DESIGN REVIEW BOARD DECISION
TO APPROVE A SITE PLAN AND ARCHITECTURAL REVIEW
APPLICATION FOR THE CONSTRUCTION OF ADDITIOijNAN
EXISTING SINGLE-FAMILY DWELLING
JUNE 29, 2005 REVIEWED BY:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..
ADDRESS:
OWNER/APPLICANT:
APPELLANTS:
ASSESSOR'S PARCEL:
FILE NUMBER:
LOT SIZE:
ZONING:
GENERAL PLAN:
FLOOD ZONE:
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BACKGROUND
689 HILARY DRIVE
IGNATIUS TSANG
JOCELYN MCDONNELL, ANDY GARDE AND JOE KELLER
055-211-07
20508
12,000 SQUARE FEET
R-1 (SINGLE-FAMILY RESIDENTIAL)
MEDIUM HIGH DENSITY RESIDENTIAL
C
On May 19, 2005, the Tiburon Design Review Board approved a Site Plan and Architectural
Review application to construct additions to an existing single-family dwelling, with a Variance
for reduced side yard setback, on property located at 689 Hilary Drive. The owners of the
neighboring properties at 687,693 & 699 Hilary Drive have now appealed this decision to the
Town Council.
PROJECT DESCRIPTION
An application was filed for Design Review approval for the construction of additions to an
existing single-family dwelling on property located at 689 Hilary Drive. The property is currently
developed with a one-story residence.
A proposed second story addition would include a family room and bathroom, with a deck
extending toward the front. Most of the interior walls of the first floor would be removed, with a
new master bedroom suite occupying the space of two existing bedrooms; the kitchen relocated
to the site of the other two existing bedrooms; a reconfigured living room, dining room and entry;
and three new bedrooms and two bathrooms in place of the existing family room, shop and rear
portion of the garage. An addition to the front of the house would extend the garage toward the
. street, but in compliance with the required front yard setback.
Town of Tiburon
STAFF REPORT
The lot coverage on the site would increase by 458 square feet to a total of 2,780 square feet
(23.2%), which is less than the 30.0% maximum lot coverage permitted in the R-1 zone. The
floor area of the existing house would be 2,874 square feet, which is less than the maximum
floor area for a lot of this size. A small roofline change along the right side of the house would
extend into the required side yard setback, thus requiring a variance for reduced side yard
setback.
REVIEW BY THE DESIGN REVIEW BOARD
The Design Review Board first reviewed the application at the April 21, 2005 Design Review
Board meeting. The original project design included the construction of a new upper floor to the
house and significant renovations to the ground floor. The new upper floor would have included
a master bedroom suite, three additional bedrooms and bathrooms, and a second family room.
Much of the interior of the ground floor would have been demolished, with four bedrooms
eliminated and new configurations for the living room, family room, kitchen, dining room and
entry. Much of the existing family room and a portion of the existing living room would have
been demolished as well.
At that meeting, several neighboring property owners objected to the overall mass and bulk of
the proposed additions, and to possible conflicts between the two-story design and the .
predominantly one-story character of the surrounding neighborhood. The Board shared some
of these concerns, and recommended that the height and/or size of the second story addition be
scaled back. The application was continued to the May 19 meeting to allow the applicant time
to revise the plans for the project.
The applicant subsequently submitted revised plans for this application. The revised project
design substantially decreased the size of the proposed second story addition by placing most
of the new floor area on the ground floor. The revised second story addition included only a
family room and bathroom, with a deck extending toward the front.
At the May 19, 2005 meeting, the neighboring property owners again raised concerns over the
impact of the second story addition on the character of the neighborhood, a well as concerns
over privacy impacts that could be caused by the second story deck and possible view impacts.
The Design Review Board considered the testimony of the neighbors, and determined that the
reduced scale of the proposed second story addition would be compatible with the overall
character of the surrounding neighborhood, and would not result in significant view or sunlight
impacts on nearby homes. The Board acknowledged that the proposed second story deck
could result in unwanted privacy impacts on neighbors, and required that the deck be
eliminated. The Board then unanimously (4-0) voted to approve the subject application. On
May 31, 2005, the appellants filed a timely appeal of this decision.
BASIS FOR THE APPEAL
There are three grounds upon which the appeal (Exhibit 1) is based:
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June 29, 2005
page 2 of 6
Town of Tiburon
. STAFFREPORT
. . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ground #1
homes.
The proposed additions would block views and sunlight for adjacent
Staff Response: The subject house is adjacent to one-story residences on either side owned by
two of the appellants at 687 and 693 Hilary Drive. During the review of this application, the
owner of the home at 687 Hilary Drive expressed concerns that the proposed second story
addition would block sunlight into her home. The original project design included a second story
addition with a height of 28 feet, 11 inches that would have been located only 9 feet, 9 inches
from the shared side property line with the home at 687 Hilary Drive. Much of the addition
would have been situated directly opposite the clerestory windows of the adjacent residence.
This potential concern was noted in the April 21 Staff report, which stated that "the adjacent
home to the west at 687 Hilary Drive has clerestory windows on its eastern side, facing the
subject house. The proposed second story addition would appear to block a substantial portion
of the sunlight that these windows currently receive."
.
The revised project design reduced the height of the second story addition to 22 feet, 10 inches,
and pulled the second story area 19 feet, 7 inches from the existing side of the house, with a
setback of 29 feet, 4 inches from the side property line shared with 687 Hilary Drive. Making the
proposed second story area lower and pulling it further away from the neighbor should eliminate
any potentially significant sunlight blockage that could be caused by this addition. TheTown
Council is encouraged to visit the appellant's home to view the story poles and evaluate any
potential sunlight impact on this adjacent dwelling.
The owner of the adjacent home at 693 Hilary Drive has indicated that the second story addition
would block views of the hillsides beyond. The Tiburon Hillside Design Guidelines generally
promote protection of views from primary living areas. This adjacent residence has limited
views toward Richardson Bay and Sausalito from the front of the house, with some hillside
views to the side. The Design Review Board uses the following portions of the Hillside Design
Guidelines to evaluate the potential view impacts of a project:
. Goal 3, Principle 7 (C) of the Guidelines states that "blockage of [the] center of
view [is] more damaging that blockage of [the] side of view." The approved
second story addition would not interfere with the center of the view from the
home at 693 Hilary Drive, but would only be visible from the side of this house.
. Goal 3, Principle 7 (D) of the Guidelines states that "blockage of important
objects in the view (Golden Gate Bridge, Belvedere Lagoon, Sausalito, Angel
Island) is more difficult to accept than blockage of other, less well known
landmarks." The approved second story addition would not block existing views
of the adjacent dwelling toward Richardson Bay and Sausalito, but would only
block some views of the hillsides beyond the subject property.
.
Based on these policies, any view impacts that the approved second story addition would have
on. the adjacent home at 693 Hilary Drive would appear to be consistent with the intent of the
Hillside Design Guidelines.
June 29, 2005
page 3 of 6
STAFF REPORT
Town of Tiburon
Ground #2 The proposed second story addition would be inconsistent with the
character of the surrounding neighborhood and would set a precedent for similar future
construction in the vicinity.
Staff Response: Section 4.02.07 of the Tiburon Zoning Ordinance contains guidelines to be
utilized in the review of Site Plan and Architectural Review applications. In reviewing these
applications, the Design Review Board is instructed.to evaluate whether "the height, size, and/or
bulk of the proposed project bears a reasonable relationship to the character of existing
buildings in the vicinity." This section further states that "a good relationship of a building to its
surroundings is important. For example, in neighborhoods consisting primarily of one-story
homes, second-story additions shall be discouraged, or permitted with increased setbacks or
other design features to minimize the intrusion on the neighborhood."
The Hawthorne Terrace subdivision was constructed in the 1950's and 1960's, and consists
primarily of one-story homes, many of which are relatively unchanged since their original
construction. Several homes with second story additions exist in the subdivision, although none
are situated in the immediate vicinity of the subject property. Several two-story homes are
located uphill from the site on Del Mar Drive, but are situated outside the Hawthome Terrace
subdivision.
In reviewing the initial plans for the project, the Design Review Board objected to the mass and .
bulk of the original project design, which included a second story addition of approximately
1,685 square feet adjacent to much of the front and sides of the existing house, with a maximum
height of 28 feet, 11 inches. The Board acknowledged the concerns over construction of a
second story in a neighborhood consisting primarily of single-story homes, but noted examples
in the similar Bel Aire and Belveron neighborhoods in which second story additions were
designed in a manner that was compatible with the surrounding neighborhood. The Board
continued the hearing on this application to allow the applicant the opportunity to address these
concerns by redesigning the project.
The revised project design moved most of the new floor area from the upper floor to the main
level of the house. Only a family room and bathroom remained within approximately 775 square
feet of floor area in the proposed upper floor, with the second story set back a considerable
distance from the front and sides of the lower floor, and the overall height reduced by over 6
feet. The revised design is consistent with the requirement of Section 4.02.07 for "increased
setbacks or other design features to minimize the intrusion on the neighborhood."
The revised project design substantially reduced the visual mass and bulk of the proposed
second story addition, and is similar in design to modest second story additions that have
recently received favorable attention in the Belveron neighborhood. This type of more modest
second story area represents an appropriate transition between most of the single-story homes
in the vicinity and the larger two-story homes above the site.
The Design Review Board indicated that the approval of this second story addition did not set a
precedent for similar projects in the vicinity. Chair Beales noted that other similar applications in .
this neighborhood had been previously denied due to view impacts that would have been
June 29, 2005
page 4 of 6
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TOWN OF TmURON
~1AY '~, '\ 2005
NOTICE OF APPEAL
D!\ii:':';iON .
r.)~:: 1\8 l;,j~::"(){\l
APPELLANT
Address:
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JOCFLYI\I !V,)btJwJ EI-l-
6&7 1-11 L.AA-j l>R.tv~
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b93 H 1t-AR.y bRItIl:
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4-35.~5].r
JOt KeLLt;~
699 1~ll..A (l.y l>R lVe
\, eo P.. oN
4-~'5 o44--t-
(Home)
Name:
Telephone:
(Work)
ACTION BEING APPEALED
Body: T~E DeSi(1f\J ~e\/I~W bDA~
Date of Action: 'MA " I? { lon,s
Name of Applicant: I GNA-rlu S \.s~l'JL7
. Nature of Application: Mlljop. A:l>'ilITlbNYVAR1A"Ce- AT 68~ bLu.Alty ])R,Vf
GROUNDS FOR APPEAL
(Attach additional pages, if necessary)
5e-E ATT Aa-\-M E NT A
~o~~
"[OWN CLERK
:rnwN OF.TIBURON
EXHIBIT NO.
/>.
Date Received: ~ '3 /--0 S-
Date of Hearing: r- -tV ~ )~c1-J-/!e.o(
( /k'l ?,~ ~(W{~d ~ G)
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( OF)
Last Day to File: t)/ J ( ---0 S-
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Fee Paid: ~l.I v
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January 2004
May 31,2005
Ms. Diane Crane Iacopi
Town Clerk
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
MA Y 'I 2005
Re: Filing of Appeal to Desi~ Review Board's Decision
Dear Ms. Crane Iacopi,
Attached is our Notice of Appeal to a decision made by the Tiburon Design Review Board at its
meeting of May 19,2005.
Because of vacations, graduations and other plans, we will need about three to four weeks to
prepare our presentation before the Town Council. Accordingly, we request that this appeal be
placed on the agenda for the Town Council's meeting of July 6, 2005.
Very truly yours,
~,.
,......-.......
""'---c].'.'..' '. ").'
. ....." .
. ,
Jocelyn McDonnell
687 Hilary Dr.
Tiburon, CA 94920
~
ATIdy Garde
693 Hilary Dr.
Tiburon, CA 94920
(j/ /
'. .(jJ/!M/. /; /
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i~e Keller
~99 Hilary Dr.
Tiburon, CA 94920
EXHIBIT NO. (
f, 2- D'F 3
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Town of Tiburon
STAFF REPORT
caused by the upper story additions, whereas the subject second story area would not
significantly block water views for any nearby homes due to its location at the foot of the slope
leading up to the adjacent homes on Del Mar Drive.
Ground #3 The landscaping, lighting and drainage plans submitted are inadequate to
determine the extent of the potential impacts of the proposed project.
Staff Response: Landscaping plans are not required to be submitted with Site Plan and
Architectural Review applications for additions to existing houses, but are always required for
applications involving construction of new dwellings. Accordingly, this application did not
include a landscaping plan, and the Design Review Board did not rely on any proposed
landscaping to mitigate any potential concerns with the project. If the application plants
vegetation in the future that results in view or sunlight blockage for nearby residents, these
neighbors would utilize the provisions in the Tiburon View Ordinance to restore such views or
sunlight.
Similarly, detailed lighting plans usually do not accompany Plan and Architectural Review
applications for additions to existing houses. However, the Design Review Board uniformly
imposes a condition of approval on all. such applications stating that "all exterior lighting fixtures
must be down light type fixtures. The lighting fixtures indicated on the submitted plans are not
approved, and shall. be replaced with appropriate down lights." Plans submitted for building plan
check for this project will be checked by Planning Division Staff for compliance with this
requirement
Drainage plans are not required to be submitted with any Site Plan and Architectural Review
application, but are required to be submitted and approved as part of the building plan check
process. Drainage concerns are outside the purview of the Design Review Board.
CONCLUSION
The Design Review Board followed the Hillside Design Guidelines and the guidelines for Site Plan
and Architectural Review in its review of this project. The Board determined that the ma~s and bulk
of the original project design was inconsistent with the character of the surrounding neighborhood,
and gave appropriate direction to the applicant to modify the submitted plans. The revised project
design substantially reduced the second story floor area, height and overall. mass and bulk of the
proposed additions, and was found to be consistent with the design of second story additions that
have been approved in other predominantly single-story residential neighborhoods in Tiburon. The
design was found to be consistent with the Zoning Ordinance requirement for "increased setbacks or
other design features to minimize the intrusion on the neighborhood" of such second story projects.
The reduced scale of the second story was found to not have significant impacts on the views or
sunlight of neighboring homes. The decision of the Design Review Board is supported by visits to
the subject site and the adjoining properties, as well as evidence in the record.
June 29, 2005
page 5 of 6
Town of Tiburon
STAFF REPORT
RECOMMENDA TION
1) That the Town Council indicate its intention to deny the appeal; and
2) That the Town Council direct Staff to return with a Resolution denying the appeal, for
adoption at the next meeting.
EXHIBITS
1. Notice of Appeal
2. Application and supplemental materials
3. Design Review Board Staff report dated April 21, 2005
4. Design Review Board Staff report dated May 19, 2005
5. Minutes of the April 21, 2005 Design Review Board meeting
6. Minutes of the May 19, 2005 Design Review Board meeting
7. Goal 3, Principles 7 (C & D) of the Hillside Design Guidelines
8. Letter from Dominic and Margaret Oi Mare, dated April 12, 2005 .
9. Letter from Joe Keller, dated April 12, 2005
10. Letter from Carol Weiss, dated April 13, 2005
11. Letter from Jenny Crowe-Innes, dated April 15, 2005
12. Letter from Anand and Birgitta Garde, dated April 19, 2005
13. Letter from Noel and Jennifer Isaac, dated April 19, 2005
14. Letter from Jean Stewart, dated April 19, 2005
15. Letter from Jocelyn McDonnell, dated April 20, 2005
16. Letter from Sammie Burke, dated April 21, 2005
17. Letter from Meredith, Steven and Robert Chandler, dated April 21, 2005
18. Letter from Anand and Birgitta Garde, dated May 17, 2005
19. Letter from Dominic and Margaret Di Mare, dated July 22,2005
20. Submitted plans
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June 29, 2005
page 6 of 6
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ATTACHMENT A
Grounds for Appeal
At its meeting of May 19,2005, The Tiburon Design Review Board (Board) approved, with certain
modifications, the application ofIgnatius Tsang to make modifications and to add a second story to an
existing single story residential dwelling.
Mr. Tsang's application was considered at the Board's meeting of April 21, 2005. Various parties, mainly
neighbors, opposed the approval of the proposed modifications. The Board directed Mr. Tsang to scale back
his proposed modifications to address the concerns raised by various parties. Mr. Tsang filed a revised plan
for the proposed modifications with the Town of Tiburon on May 9,2005. Mr. Tsang also install~d revised
story poles on the house.
Even the modified plan did not address many of the concerns raised by parties. The proposed new second
story additions along with a 20' x 4' deck will still block the view of the hills behind for.some neighbors and
deprive them of privacy in some bedrooms and backyards. At the May 19,2005 meeting, Mr. Tsang further
modified his proposal by replacing the standard side windows with dormer windows (with a window sill
height of6'above the floor) on the north and south walls of the second story.
The Board concluded that the installation of dormer windows, along with elimination ofthe second
story deck, will alleviate concerns raised by the parties. Accordingly, the Board approved the
proposed modifications. . ,
We believe that the installment of dormer windows and elimination of the second story deck will
reduce some privacy concerns. However, we still would be deprived of our views of the hills and
sunlight.
Further, all the homes on both sides of Hilary Drive between Rock Hill Drive and Mara Vista Street
are single story homes. The neighbors want to maintain the single-story character of the community.
Approving a second story installation for one dwelling would set a precedent for other homes
requesting additions of a second story which will in most instances take away views of the Bay and
impose on the privacy of residents on west side of Hilary Drive. Also, the material combination of
wood and stucco proposed by Mr. Tsang clashes with the aesthetics of the neighborhood
In addition, Mr. Tsang has not submitted any plans for landscaping, lighting or drainage with the
filing of his application for modifications. The unavailability of such plans makes it impossible to
determine the total impact of the proposed modifications.
We also believe that the lot size of Mr. Tsang's property is large enough to accommodate the
proposed expansion without building a second story and following the Town of Tiburon's Design
Guidelines for Hillside Dwellings. Furthermore, there would still remain sufficient space to create an
attractive outdoor living area.
Based on the above, we request that the Town Council reverse the Board's decision to a second story
addition to Mr. Tsang's house.
EXHIBIT NO.
r. 3 oF3
TOWN OF TIBURON
LAND DEVELOPMENT APPLICATION
tlAr~ 2 8 Z005
~E OF APPLICATION TC:'.,')!\ ()C .
0 Conditional Use Permit Design Review (DRB) 0 Tentative Subdivision Map
0 Precise Development Plan 0 Design Review (Staff level) 0 Final Subdivision Map
0 Conceptual Master Plan 0 Variance 0 Parcel Map
0 Rezoning/Prezoning 0 Sign Permit 0 Lot Line Adjustment
0 Zoning Text Amendment 0 Tree Permit 0 Certificate of Compliance
0 General. Plan Amendment 0 Underground Waiver 0 Other
SITE ADDRESS:
PARCEL NUMBER:
APPLICANT REQUIRED INFORMATION
MH I
~~ ~ PROPER. TYSIZE:15')(I~=I'20COSf
-. - . ZONING: -R-\
OWNER OFPROPERTY~_
MAILING ADDRESS:
CITY/STATE/ZIP: . .
PHONE NUMBER, 0\-l _ - ~ <[.IS)4b 1- b I PIc:2
APPLICANT: (Other than Property Owner)
MAILING ADDRESS:
CITY 1ST A TE/ZIP:
PHONE NUMBER: FAX
ARCHlTECT!DESIGNER/ENGINE~R: *"
MAILING ADDRESS, ~ _
CITY 1ST A TE/ZIP:
PHONE NUMBER: (41 - _FAX c;J ~~-C( 3.?6 ~
Please indicate with an asterisk (*) persons to whom correspondence should be sent.
~
I, the undersigned owner (or authorized agent) o(the property herein described, hereby make application for
approval of the plans submitted and made a part of this application in accordance with the provisions of the Town
Ordinances, and I hereby certify that the information given is true and correct to the best of my knowledge and
belief:
I understand that the requested approval is for my benefit (or that of my principal). Therefore, if the Town
grants the approval, with or without conditions, and that action is challenged by a third party, I will be
responsible for defending against this challenge. I therefore agree to accept this responsibility for defense at the
request of dle Town and also agree to defend, indemnify and hold the Town harmless from any costs, claims or
liabilities arising from dle approval, including, without limitation, any award of attorneys fees that might result
from the third party challenge.
Signature:
(If
~ z.~ 2OJ~
,
Date:
AttihgBody:
.
.
XHIBIT NO. -Z
f. l bF(p
MRR 28 2005 8:58AM
T~i'.IN OF TIBURON
"',
4 "4352438
F.l
DESIGN REVIEW SUPPLEMENTAL APPLlCA T10NFB~lHj ]1:;,'
MAR 2 8 Z005
.
pi ease fill in the information requested below (attach separate sheet as needed):< PL~.NNif\1G DIVISION
., 1. 8tiefly describe the proposed project: _ ~6-rA IN.. M() 1'l€. ~N l50 o/D(; F~I'~.:JE,BURON
. . ~~_ ~;t~ ~ M~~rOU~e:'4'n~f ,"'1'etL1 or>- 1iJ~<;' . ~Bt;l1ICMVf
- ~;; ~J I _ ;~~11~ u~;:.r I,;~ ex . ReMooeL. ?1~S'r 'FVJo~, ~o
. ___~_ f/--- _e __D_~ _'f'Ota-ll,)~ P}n}@ JrftKJrc;". ~XI<?i1toJ~ .
,';,klC-AC,€- TO ~p.J . ,. .' . '.. . , .
2. . Loiarea in square feenS-ection 1.05.12*):
12,000 ~.F.
Zoning: ..t<:, - \
. .'
3.. Proposed use of site (example: single family residential, comrnercial,etc:);
gxisting ., ~IN'LiG- r,A-VllV( l-W.M6 . . ..
. Proposed 4:)1"'~l..e.' ,:::.....MIL'-l. ~M~.
4. Describe any changes topark:lng areas including number of parking spaces, tumaroundor maneuvering areas,
f;Xlt?TIN.& PA:1t.K.lto..\G.' FbfL ..~c:A-p-s 1'0 p..6r--tAIN . 1S'XI ?11N'- .. D(l4I/f;w~,( . "to
. ~k1N A1Jl) 1cvJ(11,*1M~ ftJ~ kOt:nl1o'tJJrl. f~tJ~.
- ::::",:~!~~:~::~HJ;j.tEM!.:::;::i:~
'.,:::"~':'~:;;..:...' ,:..~'~::~: --:'.
;::. . ;'.>~?~n:;: :.F~ ;~~:~;~;\l~~~);:;'
Yards
(Setbacks from property,
line)(Sec;tion 1.05.25)* . .
Front
,2. 0 ,ft.
7(, ft.
" ,ft.
1.7~ ft.
No CftJrNG.C ft.
+ I 2. c;j, ," ft.
No Ck' JrN (;6 ft.
No CH'1rNve ft.
TI1.~ ft.
- Ie; 3 sq.ft
- \, to/a
Rear
Right Side
Left Side
. Maximum,Height
(Section 5.06.07)"
14ft.
Z '32- 2
sq~ft.
Lot Coverage
(Section 5.06.08)*
Lot Coverage as
Percent of Lot Area ..
fi~.1 %
Gross Floor Area I ~ ~ 8. S
(Section 1.05.06t sq.ft. 1" \ '2..C::, t. S sq.ft.
N t'T IN C-LJJr> I ~ (, (; ~^v ~
..ction numbers in parentheses refer to specific prov;,
DESIGN REVIEW SUPPLEMENTAI... APPLlCA nON FORM
2.0 ft. ft. ft.
88.5 ft. -
ft. ft.
~ ft. ft. 'ft.
tl.7$ ft. ft. ft.
U3.~ ft. ft ft.
21~~
sq.fl:. sq~ft. ' sq.ft.
lS % 1Sr I % %
"3'}.,.OO
sq.ft. $q.ft. sq.ft.
S'XHIBITNO. 2
P 2- CF-(p
Town of Tiburon . 1505 1iburon Boulevard' Tiburon, CA 94920' P.415.435.7373 F. 415.435.2438 . www.tiburon.org
.
COMMUNITY DEVELOPMENT DEPARTMENT
MAR 3 0 2005
Planning Division. (415)-435-7390
www.tiburon.ora .
APPLICATION FOR VARIANCE.
A Variance is a form of regulatory relief available when a strict or literal application of zoning development standards would
result in practical difficulties or unnecessary physical hardships for an applicant. These difficulties and/or hardships must
be caused by physical conditions on, or in the immediate vicinity of, a site. Please refer to Section 4.03 of the Tiburon
Zoning Ordinance (Section 16-4.3 ofthe Tiburon Municipal Code) for additional information regarding Variances.
WHAT VARIANCE(S) ARE YOU REQUESTING?
Condition
Zoning
Ordinance
Requirement
Existing
Condition
Your
Application
Proposes
Magnitude
Of Variance
Requested
Front Yard Setback
Rear Yard Setback
.
Left Side Yard Setback
Right Side Yard Setback
~ ,_ 0 II
"'-0 I,
b LO (,
Lot Coverage
Height
Parcel Area
Per DwellingUnit
Usable Open Space
Parking
Expansion of
\l" onconformity
)ther (Please describe):
,
,PPLlCATION FOR VARIANCE
TOWN OFTIBURON
Rev, 05102
Page 1
EXHIBIT NO. 2-
r. 30FlO
<.1300 Hm" St.." 5" h"d,co (A 941ll
.
www.tsangarchitecture.com t 415.399.9302 f 415.399.9303 e info@tsangarchitecture.com
R~- ""''''''Vr-D
"" ....' Ii . I.... ~. . ....!
1 ~.bS-_.....~~i' lk....!
p, OD . 2005
r'\t i\ -
April 4, 2005
F)i_Af~i~:i';G DIVISiON
TO\:'J'r"J OF T!~:URON
Town of Tiburon
Planning Department
1505 Tiburon Boulevard
Tiburon, CA 94920
Attn: Daniel M. Watrous
Planning Manager
Re: Single Family Residential Remodel at
689 Hilary Drive
Zoning District: R-1
Dear Daniel,
A variance to the side setback requirements of8 feet for an R-1district is requested for
this home remodel at 689 Hilary Drive. The original house was built in 1954 and has a
setback of 6 feet from the east property line. We wish to remodel the residence and
construct a second floor family room above the existing first floor and align a portion of
the addition with the existing 6 foot wall. We believe that the request for a variance is
consistent with the criteria established by the Town of Tiburon and our appeal is
elaborated in the following points.
.
1. Special circumstances
.
.
689 Hilary has a lot which is only 75 feet wide compared with lots across the
street which are from 83 feet to 91 feet wide, with all sizes of lots accommodating
a standard house which is 59 feet 3 inches wide.
689 Hilary has steep topography at its rear reducing its buildable area
considerably.
It has an existing building with an existing side setback of 6 feet from its east
property line shared with 691 Hilary. We have gone to special efforts to retain as
much of the exterior envelope of 689 Hilary as possible and to set back our
addition to the rear of the property rather than create it at the front in order to
show respect to the existing character of the street.
Aligning the first and second floor walls allows the incorporation of the existing
foundations and walls at a considerable cost savings.
The area under consideration is very small and consists only of a 2 foot wide
space which is 15 feet long and it will not make the building appear unusually
large.
.
.
.
.
EXHIBIT NO. 2-
~. 4 DF-(P
.BOO Mn'" S,"', S.. h",i", CA 941ll
www.tsangarchitecture.com t 415.399.9302 f 415.399.9303 e info@tsangarchitecture.com
.
· We have discussed the two story addition with the adjacent neighbor at 691
Hilary, Mr. Honda. Our neighbor approves of our project in its current form.
· The proposed house'design is for an integrated design rather than one which
looks like a haphazard addition to an existing building. .This design relies upon
symmetry, continuation of buildjng lines, walls and window locations over the 2
floors.
We therefore ask that 689 Hilary be granted special consideration in application of the
setback requirements. A strict application of the Tiburon Zoning Ordinance would
require the addition to the east side of the home at 689 Hilary to be moved back 2 feet
from the existing location of the first floor. Given that other neighbors can create second
storey additions to their existing houses which are aligned with the first storey, requiring
us to set back our addition would deprive us of privileges enjoyed by other properties in
the vicinity. Enforcing the setback would also result in a less than desirable appearance
to the proposed building adversely affecting the neighborhood.
2. Granting of the variance would not result in a special privilege
· As discussed above, the current lot width is from 8 to 16 feet narrower than
several other properties in this vicinity. It is severely disadvantaged at present.
Granting this variance would reduce some of this disadvantage and would not be
construed as granting a special privilege to this property. Therefore, the
proposed variance would not grant a special privilege that is inconsistent with
other homes in the vicinity.
.
3. Strict application of the Zoning Ordinance would result in practical difficulty or.
physical hardship
· Aligning the first and second floor walls allows the incorporation of the existing
foundations and walls at a considerable cost savings. If we set the addition back
by 2 feet we will require special waterproofing and flashing which may create a
potential source of constant water infiltration which would be detrimental to the
structure of the house. Setting the addition back would create unnecessary
physical hardship.
· The proposed house design is for an integrated design rather than one which
looks like a haphazard addition to an existing building. This design relies upon
symmetry, continuation of building lines, walls and window locations over the 2
floors. Enforcing the setback would result in a less than desirable appearance to
the proposed building and would also adversely affect the neighborhood.
.
EXHIBIT NO. -Z
~. '5 DFfc
.2300 MM'" S,,," S.. hmi,,, CA 94111
www.tsangarchitecture.com t 415.399.9302 , 415.399.9303 e info@tsangarchitecture.com
.
4. Granting of the variance would not be detrimental to the public welfare or
injurious to other properties
· The owner has met with the existing owners of adjacent properties and has not
encounters conCl;lrns about the project. They approve of the current design and
are glad to see the improvement of the run down and vacant house at 689 Hilary
which in its current form is harmful to the desirability and security of the
neighborhood. The proposed family room is roughly 45 feet from the street
property line and 105 feet from the rear property line. Therefore, the setback
variance would not be detrimental to the public welfare, and in contributing to a
good design could actually be interpreted to improve the public welfare and the
value of properties in the vicinity.
In conclusion, the applicant submits that this request for a variance to the side yard
setback dimension of 8 feet meets the criteria established by the Town of Tiburon. It
represents a continuation of existing conditions in the addition at an upper storey, is not
detrimental to the neighbors and would create a positive addition to the neighborhood.
Thank you for your consideration.
.
.
EXHIBIT NO. L
fi Co oF-(p
Town of Tiburon
STAFF REPORT
AGENDA iTEM 06
TO: DESIGN REVIEW BOARD
FROM: PLANNING MANAGER WATROUS
SUBJECT: 689 HILARY DRIVE; FILE #20508
SITE PLAN AND ARCHITECTURAL REVIEW FOR THE
CONSTRUCTION OF ADDITIONS TO AN EXISTING SINGLE-FAMIL Y
DWEWNG, WITH A VARIANCE FOR REDUCED SIDE YARD SETBACK
MEETING DATE: APRIL 21,2005
PROJECT DATA:
ADDRESS:
ASSESSOR'S PARCEL:
FILE NUMBER:
PROPERTY OWNER:
APPLICANT:
LOT SIZE:
ZONING:
GENERAL PLAN:
FLOOD ZONE:
DATE COMPLETE:
689 HILARY DRIVE
055-211-07
20508
IGNATIUS TSANG
SAME
12,000 SQUARE FEET
R-1 (SINGLE-FAMIL Y RESIDENTIAL)
MEDIUM HIGH DENSITY RESIDENTIAL
C
APRIL 1, 2005
.
PRELIMINARY ENVIRONMENTAL DETERMINATION
Town Planning Division Staff has made a preliminary determination that this proposal would be
exempt from the provisions of the California Environmental Quality Act (CEQA) as specified in
Section 15301.
PROPOSAL
The applicant is requesting Design Review approval for the construction of additions to an
existing single-family dwelling on. property located at 689 Hilary Drive. The property is currently
developed with a one-story residence.
The proposed project would involve the construcll6n of a new upper floor to the house and
significant renovations to the ground floor. Much (f the interior of the ground floor would be
demolished, with four bedrooms eliminated and new configurations for the living room, family
room, kitchen, dining room and entry. Much of the existing family room and a portion of the
existing living room would be demolished as well. The new upper floor would a master bedroom .
suite, three additional bedrooms and bathrooms, and a second family room.
EXHIBIT NO. 3
P. i DFt(
Town of Tiburon
. STAFF REPORT
. ... ... ... .......... ........ ................ .........
1
The floor area of the existing house would be increased by 1,262 square feet to 3,200 square
feet, which is the maximum floor area for a lot of this size. As a result of the removal of several
portions of the existing house, the lot coverage on the site would actually decrease by 153
square feet to a total of 2,169 square feet (18.1%), which is less than the 30.0% maximum lot
coverage permitted in the R-1 zone.
The proposed upper floor addition would extend to within 6 feet of the east (right) side property
line. As the R-1 zone requires a side yard of 8 feet, a variance is requested for reduced side
yard setback.
A color and materials board has been submitted, and will be present at the meeting for the
Board to review. The structure would be finished with light brown colored stucco siding and
grey and white trim, with dark grey roof tiles.
ANALYSIS
Design Issues
.
This lot is situated on the uphill side of Hilary Drive. Adjacent properties to the rear along
Delmar Drive are located at elevations well above that of the site of the subject house. As a
result, the proposed second story addition should not interfere with the Richardson Bay views of
these neighboring homes. Large mature trees uphill from the house would also provide
screening of the existing and proposed portions of the structure.
The proposed upper floor would extend above the footprint of the existing house, which is
roughly in line with the locations of the homes on either side of the property at 687 and 691
Hilary Drive. . The proposed upper floor would therefore not loom over the rear yards of either
adjacent lot.
The western side elevation of the proposed upper floor addition would include two small, high
bathroom windows and one larger bedroom window. The eastern elevation would include one
small bathroom window, two larger bedroom windows and a larger family room window.
Although these windows are likely too high to create privacy impacts for the ground floor living
spaces of the adjacent homes on both sides, the bedroom and family room windows could
create unwanted privacy impacts on the rear yards for those properties. A large redwood tree to
the rear of the home at 687 Hilary Drive would likely screen the views from the windows on the
western side of the proposed addition. On the eastern side of the addition, the bedroom
windows would beset well back from the common property line with the home at 691 Hilary
Drive, and the family room window would be directly opposite the adjacent home, lessening any
potential privacy impacts from those windows.
.
The adjacent home to the west at 687 Hilary Orive has clerestory windows on its eastern side,
facing the subject house. The proposed secOnd story addition would appear to block a
substantial portion of the sunlight that these windows currently receive. The Design Review
Board should evaluate the potential sunlight impacts on this adjacent residence and determine if
alterations to the proposed addition are necessary to address this situation.
EXHIBIT NO. :5
p, '2 OFt(
April 21, 2005
page2of5
STAFF REPORT
Town of Tiburon
The existing house was constructed with a 6 foot east side yard setback which was consistent
with the Marin County zoning requirements in effect at that time, prior to the incorporation of the
Town of Tiburon. The adjacent home to that side at 691 Hilary Drive was also developed with a
6 foot setback to the shared side property line. The proposed upper floor addition would extend
this nonconforming condition along the same setback line. However, only the 15'3" width of the
family room portion of the proposed addition would encroach into this setback.
Zoning
Staff has reviewed the proposal and finds it to be in conformance with the development
standards for the R-1 zone with the exception of the previously noted side yard setback
variance.
Variance
In order to grant the requested variance, the Board must make all of the following findings
required by Section 4.03.05 of the Tiburon Zoning Ordinance:
1.
Because of special circumstances applicable to the property, including
size, shape, topography, location, or surroundings, the strict application of
this Ordinance will deprive the applicant of privileges enjoyed by other
properties in the vicinity and in the same or similar zones.
.
As previously noted, the existing house was developed with a 6 foot eastern side
yard setback, which was consistent with the Marin CountY zoning requirements in
effect at that time, prior to the incorporation of the Town of Tiburon. The rear of
the lot is somewhat steep, limiting the ability to add onto this portion of the lot.
These characteristics creati special circumstances that limit the areas and extent
of construction on the site; the strict application of the side yard setback
requirement on such a lot would deprive the applicant of the development
potential enjoyed by other homes in the vicinity.
2. The variance will not constitute a grant of special privileges, inconsistent
with the limitation upon other properties Ih the vicinity and in the same or
similar zones.
Numerous other properties in the R-1zone and similar single-family residential
zones have received variances for redUCed side yard'$etbacks to continue the
line of an existing nonconforming residence.
3. The strict application of this Ordinance would result in practical difficulty
or unnecessary hardship.
The strict applica~on of the required side yard setback would force the proposed .
upper floor additiqn to be set back 2 feet from the line of the existing house
EXHIBIT NO. 3
r, ~ OF l(
April 21, 2005 .
page 3 of 5
Town of Tiburon
. STAFF REPORT
.
.
.. .... ............... Ii.. ..... ... .................. ..........
below. Although such additional setbacks are often encouraged to provide
appropriate articulation for upper floor additions, the limited width of the addition
within the required setback, and the placement of the remainder of the addition
22 feet further back from the side property line, should provide adequate visual
articulation for this addition. Therefore, requiring the addition to be further set
back from tne side property line would place a hardship on the property owner
tt:lat is unnecessary for the desired visual appearance of the addition.
4. The granting of the variance will not be detrimental to the public welfare or
injurious to other properties in the vicinity.
As described above, the proposed project would not create any significant visual
or privacy impacts on neighboring homes.
From the evidence provided, Staff believes that there is sufficient evidence to support the
findings for the requested variance.
Public Comment
As of the date of this report, one letter has been received regarding the project from the owners
of the home across the street at 692 Hilary Drive, raising concerns about the visual scale of the
proposed addition when viewed from the street. Another letter has been received from the
owner of 699 Hilary Drive, objecting to the principle of second story homes in this neighborhood.
RECOMMENDA nON
The Board should review this project with respect to Zoning Ordinance Sections 4.02.07.
(Guiding Principles) and determine that the project is exempt from the provisions of the
California Environmental Quality Act (CEQA) as specified in Section 15301. If the Board wishes
to approve the project, Staff would recommend that the attached conditions of approval be
applied if the project is approved.
ATTACHMENTS
1. Conditions of approval
2. Application and supplemental materials
3. Letter from D.L. & M.R. Di Mare, dated April 12, 2005
4. Letter from Joe Keller, dated April 12, 2005
5. Submitted plans
EXHIBIT NO. S
p, 4: Or~
April 21, 2005
page 4 of 5
Town of Tiburon
STAFF REPORT AGENDAITEM~
.......................................................................................... ..
TO: DESIGN REVIEW BOARD
FROM: PLANNING MANAGER WATROUS
SUBJECT: 689 HILARY DRIVE; FILE #20508
SITE PLAN AND ARCHITECTURAL REVIEW FOR THE
CONSTRUCTION OF ADDITIONS TO AN EXISTING SINGLE-FAMILY
DWEWNG, WITH A VARIANCE FOR REDUCED SIDE YARD SETBACK
(CONTINUED FROM APRIL 21, 2005)
MEETING DATE: MAY 19, 2005
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
SUMMARY
The applicant is requesting Design Review approval for the construction of additions to an
existing single-family dwelling on property located at 689 Hilary Drive. The proposed project
involves the construction of a new upper floor to the house and significant renovations to the
ground floor. The original project design involved demolition of much of the interior of the
ground floor, eliminating four bedrooms and reconfiguration of the living room, family room, .
kitchen, dining room and entry. A new upper floor was proposed, including a master bedroom
suite, three additional bedrooms and bathrooms, and a second family room. The proposed
upper floor addition would have extended to within 6 feet of the east (right) side property line,
necessitating a variance request for reduced side yard setback.
This application was first reviewed at the April 21 , 2005 Design Review Board meeting. At that
time, several neighboring property owners objected to the overall mass and bulk of the
proposed additions, and to possible conflicts between the two-story design and the
predominantly one-story character of the surrounding neighborhood. The Board shared some
of these concems, and recommended that'the heightand/or size of the second story addition be
scaled back. The application was continued to the May 19, 2005 meeting to allow the applicant
time to revise the plans for the project.
The revised plans for this application have now been submitted. The revised project design
would substantially decrease the size of.the proposed second story addition by placing most of
the new floor area on the ground floor. Most of the interior walls of the first floor would be
removed, with a new master bedroom suite occupying the space of two existing bedrooms; the
kitchen relocated to the site of the other two existing bedrooms; a reconfigured living room,
dining room and entry; and three new bedrooms and two bathrooms in place of the existing
family room, shop and rear portion of the garage. An addition to the front of the house would
extend the garage toward the street, but in compliance with the required front yard setback.
The proposed second story addition would now include only a family roof!1 and bathroom, with a
deck extending toward the front.
With the revised project design the lot coverage on the site would increase by 458 square feet .
to a total of 2,780 square feet (23.2%), which is tessthan the 30.0% maximum lot coverage .
EXHIBIT NO. 4
P . I DF '-!
Town of Tiburon
. STAFF REPORT
.
.
.... ......"........ ...... ... ..... ..... ........... ......
permitted in the R-1 zone; this represents an increase of611 square feet of lot coverage from
the previously submitted design. The floor area of the existing house would be 2,874 square
feet, which represents a decrease of 326 square feet from the previously submitted design,
which is also the maximum floor area for a lot of this size. Although the second story addition
would not extend into the required side yard setback, a small roofline change along the right
side of the house would still require a variance for reduced side yard setback..
ANAL YSIS
Design Issues
The revised project design would substantially reduce the visual mass and bulk of the proposed
second story addition. The smaller upper floor would be centered above the existing house,
similar in design to modest second story additions that have recently received favorable
attention in the somewhat similar Belveron neighborhood. This type of more modest second
story area would represent an appropriate transition between most of the single-story homes in
the vicinity and the larger twcrstoryhomes above the site. In a(:ldition, the proposed garage and
deck additions would accentuate the lower floor of the house in relation to the upper floor and
provide appropriate visual articulation for the building.
The reduced scale and central location of the upper floor area should eliminate any potential
concerns over sunlight impacts on the adjacent residence at 691 Hilary Drive. The Design
Review Board should carefully review the proposed windows on either side of the proposed
family room to determine if these windows would result in unwanted privacy impacts on the
hOMes to either side of the site.
As. previously noted,.the existing house was constructed with a 6 foot east side yard setback
which was consistent with the Marin County zoning requirements in effect at that time, prior to
the incorporation of the Town of Tiburon. The. proposed roofline. change for the lower floor of
the house would extend this nonconforming condition along the same setback line. However,
only the upper floor family room portion addition would no longer encroach into this setback.
Zoning
Staff has reviewed the proposal and finds it to be in conformance with the development
standards for the R-1 zone with the exception of the previously noted side yard setback
variance.
Variance
In order to grant the requested variance, the Board must make all of the following findings
required by Section 4.03.05 of the Tiburon Zoning Ordinance:
1.
Because of special circumstances applicable to the property, including
size, shape, topography, location, or surroundings, the strict appliCBtion of
EXHIBIT NO. 4
f,2~'{
May 19,2005
page 2 of 5
STAFF REPORT
Town of Tiburon
.. ..... ................. ..... ... ..... ..... ....... ......
this Ordinance will deprive the applicant of privileges enjoyed by other
properties in the vicinity and in the same or similar zones.
As previously noted, the existing house was developed with a 6 foot eastern side
yard setback, which was consistent with the Marin County zoning requirements in
effect at that time, prior to the incorporation of the Town of Tiburon. The rear of
the lot is somewhat steep, limiting the ability to add onto this portion of the lot.
These characteristics create special circumstances that limit the areas and extent
of construction on the site; the strict application of the side yard setback
requirement on such a lot would deprive the applicant of the development
potential enjoyed by other homes in the vicinity.
2. The variance will not constitute a grant of special privileges, inconsistent
with the limitation upon other properties in the vicinity and in the same or
similar zones.
Numerous other properties in the R-1 zone and similar single-family residential
zones have received variances for reduced side yard setbacks to continue the
line of an existing. nonconforming residence.
3.
.
The strict appliclltlon of this Ordinance would result in practical difficulty
or unnecessary hardship.
The strict application of the required side yard setback would eliminate any
potential changes to the roofline of the existing house. Such a restriction would
place a hardship on the property owner that is unnecessary for the desired visual
appearance of the addition.
4. The granting of the. variance will not "e detrimental to the publiC welfare or
injurious to other properties in the vicinity.
As described above, the revised project. design would not create any significant
visual or privacy impacts on neighboring homes.
From the evidence provided, Staff believes that there is sufficient evidence to support the
findings for the requested variance.
Public Comment
As of the date of this report, no letters have been received regarding the project since the last
meeting. '
RECOMMEN.l)ATION
The Board should review this project with respect to Zoning Ordinance Sections 4.02.07
(Guiding Principles) and determine that the project is exempt from the provisions of the
.
EXHIBIT NO. tf
Pi 3 wl(
May 19, 2005
page3of5
Town of Tiburon
. STAFF REPORT
.
.
. .. .. .. . .. .. .. .. .. . . .. .. .. .. .. .. .. .. .. .. .. . .. .. '. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
California Environmental Quality Act (CEQA) as specified in Section 15301. If the Board wishes
to approve the project, Staff would recommend that the attached conditions of approval be
applied if the project is approved.
ATTACHMENTS
1. Conditions of approval
2. Minutes of the April 21, 2005 Design Review Board meeting
3. Design Review Board Staff report dated April 21, 2005
4. Revised plans
EXHIBIT NO. Lf
p, 4 DF~
May 19,2005
page 4 of 5
6.
689 HILARY DRIVE
TSANG, MAJOR ADDITIONS! VARIANCE
.
The applicant is requesting design review approval for the construction of additions to an
existing single-family dwelling on property located at 689 Hilary Drive. The property is
currently developed with a one-story residence. The proposed project would include the
construction of a new upper floor to the house and significant renovations to the ground
floor. Much of the interior of the ground floor would be demolished, with four bedrooms
eliminated and new configurations for the living room, family room, kitchen, dining
room and entry. Much of the existing family room and a portion of the existing living
room would be demolished as well. The new upper floor would hold a master bedroom
suite, three additional bedrooms and bathrooms and a second family room. A variance is
requested for reduced side yard setback.
Ignatius Tsang, owner and architect, stated that the house is not in good condition and
could have been demolished. He acknowledged that most homes along Hilary Drive are
single-story but there are second-story homes nearby. He said that he designed a four
bedroom home due to the proximity of the site to St. Hilary and Del Mar Schools. He
explained meetings he had with the neighbors to discuss the project design, and has
proposed modifications in response to their comments. He said that he could have added
to the front ofthe house, but it would block the view from his neighbor's window. He
said he wanted to add a.trellis to break the verticality of the building in front. In
reference to the four bedrooms upstairs, he stated that young children should be on the
same floor. He said windows on the second floor would not be massive, and that the
family room in the rear would respect privacy. He said the existing house was built with
a six-foot side setback before the town was incorporated. He said that the ground floor
ceiling height would be nine feet. He said that the house would have a 6: 12 roof slope,
which could be reduced to a 4:12 slope, which is the minimum for non-tar and gravel
roof, and the height would become 27 feet. He said that he would remove the window
that a neighbor complained about.
.
Boardmember O'Donnell asked if it was necessary to have four bathrooms on the second
story. Mr. Tsang responded that it was, but that he could remove a bathroom and enlarge
a bedroom. Boardmember O'Donnell stated that he mentioned this in terms of reducing
the floor area of the second floor.
Jocelyn MacDonald stated that she was concerned about the second story design. She
said that she had asked the applicant to eliminate the upper story, submit a lighting plan,
and attend a Design Review Board meeting to understand building in Tiburon. She said
that the house would be out of character with the neighborhood. She said that seven
directly-affected neighbors had discussed their concerns with Mr. Tsang and he had
stated that he would withdraw his design, but he had not. She said that neighbors have
asked him to expand horizontally. She said that there is a drainage problem from the hill
that should be addressed. She asked the Board to consider the integrity of the single-
story neighborhood and keep it that way. She said that she represents the Hawthorne.
Terrace Homeowners Association.
TIBURON D.R.B.
4/21/05
EXHIBIT NO. 5"
p. l tY '3
.
12
.
.
.
Robert Chandler stated he and neighbors have raised children in their small houses. He
said that he saw this as a developer building a multistory home in his neighborhood to '
make money. He said that homes in Hawthorne Terrace are small and that this house
would be increased to a size far beyond that of the neighbors'. He said this structure
would not be in harmony with its surroundings, as required by the original CC&Rs for
this subdivision. He asked that this massive structure not be developed in his
neighborhood.
Jennifer Isaac showed a photograph of how a similar house affects her. She explained
how that owner cannot sell the house, and suggested that the applicant consider this. She
stated that she would not be directly impacted by the project.
Steve Bendinelli stated that a two-story home would not fit with the character and scale
of the neighborhood. He stated that privacy factors are a concern, and that the overall
height of the structure would dominate other houses. He said that every letter on record
opposes the project, which reafftrms the spirit and code of Tiburon. He stated Hawthorne
Terrace is an area of homogeneous, simple, single-'story homes, and should be left that
way.
Allan Honda, representing Hardy Honda, stated that the project would have many
impacts on surrounding properties. He said that the house would be out of character with
other homes in the area, which are ranch style. He commented that privacy and looming
impacts should also be addressed.
Jennie Kreines stated that a key factor is the way the house sits on the land, about ten feet
above street level, so this would appear to be a four-story building that she will have to
look at. She said that the story poles show that this would be a massive structure. She
asked that the Board consider asking the applicant to create a different footprint for the
house. She recommended that only a partial second story be built or set the house back
into the hill. She said that the current design would be an eyesore to the neighborhood.
Eric Hestenes stated that the scale of the building and privacy issues are his concerns. He
said that it is important that the community invest and improve their properties, but he
felt that the house could be better designed to address the concerns of the community.
JudyAgajan stated that the applicant showed her the plans and she did not think it would
affect her because her living areas are directed toward the water; however, she believed
that if one house this size is built, more would be built. She said that other
neighborhoods have large homes and people who want to live in large homes should live
in those neighborhoods. She said that the large amount of lights in the house would
affect a lot of neighbors.
Mr. Tsang said that the opposition expressed at the neighborhood meeting came as a
surprise to him. He stated that this lot is larger than neighboring lots to the west, and that
expanding on the ground floor would not be that easy. He said that he believes in
TIBURON D.R.D.
4/21/05
EXHIBIT NO. 5"
t>. z cy.::.5
13
children playing in yards, and from the kitchen and dining room, he can watch his
children in the yard. He said he could reduce the size of windows or plant trees.
.
Bomdmember Teiser stated that the neighbors understand the story poles, and he felt that
this would be a large project for the neighborhood. He stated that the project would be at
the maximum floor area, and that the floor area ratio is not a right, but rather a guide to
control the massiveness of a house. He said that in other neighborhoods like Bel Aire,
second stories can work, but only when they are pulled in or set back so they do not
present such a mass at the front ofthe house. He said that the house needs to be scaled
down.
Boardmember Bird stated that this would be a beautiful house and she appreciated that
the applicant addressed concerns about changing the roof. She said that the height of the
house in the setting of the neighborhood was the concern. She stated that the neighbors
are saying they do not want a large two-story structure in their midst and are not willing
to have such a precedent set in the neighborhood. She said the house would be out of
character with the neighborhood. She said that a second story that would be pushed back
or a 1.S-story house might be acceptable, but this design would be too large for the
neighborhood. She agreed that there are other areas in Tiburon where such a large house
would be compatible. She recommended that the application be continued to allow work
to be done so that everyone would be happy with the project.
Boardmember O'Donnell stated that precedent and scale are the issues with this project.
He said that this house is out of scale with the lot. He said that the height of the house
must be reduced. He said that a second story could be appropriate because it is a narrow
lot that extends to the back. However, he stated the second story should be small and
stealthily designed. He said there is extra room that does not need to be there.
.
Chair Beales concurred, adding that the house would be maxed out in floor area, which is
not an entitlement. He said there are other homes in Belveron on Juno Road where the
second floor was centered over the middle of the house and there is a fair amount of
space on the.sides, which makes the houses less looming for neighbors. He said that a
second floor could work but must be made much smaller with less height. He said that
making the second floor smaller would solve a lot of problems.
MIS, BirdlMcDonneU (passed 4-0) to continue this item to the May 19, 2005 meeting.
E. APPROV AL OF MINUTES #6 OF THE 4/21/05 DESIGN REVIEW
BOARD MEETING
Amendments include:
Page 1, 2nd paragraph, 2nd line to state, "...becausehe could not make it work. The whole
building. . . "
Page 1, 3rd paragraph, insert "completely" between "not" and "give back."
Page 2, 1 st line, change "if' to "and."
TmURON D.R.B.
4121/05
EXHIBIT NO. 5'
f: ~ OF 3
.
14
.
E.
OLD BUSINESS BEFORE THE BOARD
2.
. 696 HAWTHORNE DRIVE
CONTINUED TO 6/2/05
ARBAB, NEW DWELLINGN ARIANCE
3.
689 HILARY DRIVE
TSANG, MAJOR ADDITIONSN ARIANCE
The applicant is requesting design review approval for the construction of additions to an
existing single-family dwelling on property located at 689 Hilary Drive. The proposed
project involves the construction of a new upper floor to the house and significant
renovations to the ground floor. The original project design involved demolition of much
of the interior of the ground floor, eliminating four bedrooms and reconfiguration of the
living room, family room, kitchen, dining room and entry. A new upper floor was
proposed, including a master bedroom suite, three additional bedrooms and bathrooms
and a second family room. The proposed upper floor addition would extend to within six
feet of the east (right) side property line, necessitating a variance request for reduced side
yard setback.
.
Ignatius Tsang, architect and owner, discussed the revised plans and stated that he
understood the Design Review Board's last recommendations. He described how the
design was intended to accommodate various family functions, particularly with the
ceiling of the ground floor open to the upstairs family room. He said that he had revised
the design in accordance with the Board's and neighbors' recommendations.
Boardmember Teiser asked about the color of the stucco on the second story. Mr. Tsang
submitted a new color board and stated that the color would be more green than that
shown on the original submission. He felt that wood siding on the second floor would
tend to draw attention to the two-story aspect of the building. He said that changing the
material would help visual break up the two stories.
The public comment period was opened.
Greg Mawani asked how long Mr. Tsang planned to live in the house and wondered if the
house will be sold after the additions are made. Chair Beales responded that the
ownership of the property is irrelevant to Board's review of the design of the house.
Noel Isaac stated that the remodel would not impact his home, but he was concerned
about how the house would impact the integrity of the neighborhood.' He said that he did
not want to see a repeat of the design for the house at 30 Del Mar Drive. He said that if
this design is approved, more people will want to add second stories to their homes in this
neighborhood.
.
Joe Keller stated that he has opposed applications to build second stories in this
neighborhood five times in the past 50 years, and in each case, the Board decided in the
neighbors' favor. He said that the one exception was supported by the neighbors. He felt
that the continuity of the neighborhood would be broken if second stories were built. He
TIBURON D.R.B.
5/19/05
EXHIBIT NO. Co
~ . l t-k3'
2
said that views are important to those in Hawthorne Terrace, as the streets are stepped.
He said if one person builds a second story, all those above would want to do the same to
regain their views. He said that approval of this application would set the stage for
building more second stories in the neighborhood.
.
Andy Garde stated that he agreed with Mr. Keller. He said that the proposed second
story deck would look into his bedroom. He said that the second story would block his
view of the hills from his bedroom window.
Jocelyn MacDonald stated that the story poles look all right from her driveway, but the
new story poles indicate that the second story would block the west facing view from her
bedroom. She said that she preferred aspects of the previous roofline design. She asked
why skylights could not replace the upper floor windows. She stated that pushing back
the front of the additions would eliminate much of the impact. She said that her water
view was previously taken by an addition across the street. She questioned whether trees
would be damaged during construction, noting that the trees help screen the subject house
from her back yard, which she uses a lot.
Margaret DiMare, speaking for Janet Crow who lives across the street, stated Ms. Crow
is concerned about the deck facing her and that the garage is being extended too far in.
front. She felt that the new design looked like three trailers stuck together. -
Mr. Tsang stated that he consulted with Planning Staff about his application and was told
that second story construction is allowed in this neighborhood. He felt that he had done a
good job of making changes without sacrificing the living elements of the house. He
asked that the Design Review Board allow him this modest home.
.
Boardmember O'Donnell stated that the applicant had done an excellent job with this
redesign, as the previous design was inappropriate for the site. While he acknowledged
that this neighborhood feels like a series of seaside cottages, he said that there is room for
second stories if the upper floor is put toward the center or rear of a house. He said that
this design would work well within the neighborhood. He stated that he empathized with
the neighbors, but this application must be reviewed in the context of fixing up a
dilapidated home. He said that neighborhoods change over time, and change can be
positive. He said that he could support the second story because there would be no view
impact, and he felt that the applicant had responded well to the Board's direction. He
said that the Board judges each project on its individual inerits,and that not every lot
could have a second story. He noted that there is only ~ cliff behind this house. .
Boardmember Bird stated that this was a very good effort to design an appropriate two-
story addition for this neighborhood. She said that care had been taken to set back the
second story from the front and sides, and the design addressed the concerns raised by the
Board. She said that making a profit can cast a different light on an application for the
neighbors, but it is an owner's prerogative to sell the house. She said that she could
support the application, but recommended that the second story deck in front be removed.
.
TIBURON D.R.B.
5/19/05
EXHIBIT NO. Co
t>, 2- or:3
3
.
Boardmember Teiser stated that the applicant had done exactly what the Board asked him
to do. He said that the architecture fits well within the neighborhood. He said that the
front deck was unnecessary and could be removed. He felt that the stucco on the exterior
of the second story calls attention to the upper floor, and that the continuation of wood
siding would make the household together better. He said that there was no landscaping
plan with this application and that there was a need to understand the trees and shrubs
proposed.
Mr. Tsang stated that he would keep most of the trees except those where the house is
expanded into the front. He said that a landscaping plan is not required with a remodel.
He said that he would not deforest' the area, but instead wants to have the house hidden
and blended in.
Chair Beales stated that he has been on the Board for the review of several second story
applications in this neighborhood, noting that second stories that have blocked views
have not been approved by the Board. He said that the second story would be a problem
if views would be blocked, but felt that this addition would not block views. He said that
there are other neighborhoods in Tiburon in which second stories are difficult, and are
mostly allowed on the perimeter of the neighborhood where there would be no impact.
He felt that the new design was handsome, and he appreciated the raised window sill
heights on the second floor. He agreed that the deck should be removed.
.
MIS, Birdtreiser (passed 4-0), to determine that the project is categorically exempt
from the provisions of CEQA and approve the application subject to the conditions
of approval as set forth in the StaJfreport; as amended to remove the upper deck
and to use the second version of the proposed roof plan with the dormers.
.
TIBURON D.R.B.
5/19/05
EXHIBIT NO. 0
?~ 3 br:: 3
4
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~ I a, ADOS-
From: Mr. & Mrs. D. L. Di Mare
692 Hilary Drive .
Tiburon, Ca
. 94920
.
To: Tiburon Design Review Board
Subject: Tsang Proposal for 689 Hilary Drive
My wife and I have resided at 692 Hilary Drive since 1961. We have watched quite a
few homes on our street add improvements over the years. It seemed to us that all the
improvements made seemed necessary and enhanced the overall feeling of our
neighborhood. We have never contested any of the home improvements made until
now. We.feel compelled to do so with Mr. Tsangs proposal.
. 1 .'~~ 'JD. n ~:l
; ~ ~ ~'" t. v\".,
First of all I would like to commend Mr. Tsang for being truthful and honest when he
. spoke to us on the matter. We felt at the time that his description of the project seemed
feasible. However now that the story poles are up and we can now sense the
immensity of the projected home we now feel that it is definitely. not appropriate to the
neighborhood or site. First of all we think the scale to be too large for the property. It
feels jammed into the space and we suspect that the neighbor on the north side will
loose most of the natural light they have enjoyed over the years. We are across the
street from 689 and are alarmed at the scale of the project. The fact that there is such
little ''front yard" gives the proposed structure the look of overwhelming the site and the
houses on either side of it. We feel the addition of a second story is to blame for this
fact. I think that allowing a second story to the Tsang property will also open the door to
more contiguous future events regarding second story additions. Another concern of
ours is a privacy issue in that the upper stories would be able to see into the houses
directly in front of it. I would add that the proposed design shown to us leaves. much to
be desired and seems ordinary in every sense of the word. Yes - Hilary Drive is a series
of almost identically designed houses - yet owners have done much to add to the
diversity of their presentation. Mr. Tsang has assured us that the trees in front of the
house will remain so as to "soften" the look of the structure but here are no guaranties
that the future owners will honor this promise.
lam reminded that Mr. Tsang has purchased this property not with the thought of
improving the neighborhood or even in joining it as a resident but as a possible venue
for financial gain. This is not to say that this is bad but that it pushes the project in a
negative way - that is to get as much house as possible regardless of aesthetics or site
considerations. This to us was, and is, a major factor in our decision to ask that the
Design Review Board deny his proposal at this time.
.
/(] Ail]
D. L. Di Mare /:[TI1 ./(J4 111M/...-
M. R. Oi Mare
MO~
If tJ-t. 'l11 (L-'lp
EXHIBIT NO. 3
.
.
.................~........................................................-......................,
Tiburon Design Review Board
Re: 689 Hilary Dr. Construction Proposal
~-//I ., 10'0-
For almost 50 yearsthe residents or Hawthorne Terrace (Hilary
Dr. and Hawthorne Dr.) have been opposed to second stories on
neighbor homes. The Design Review Boards always sided with
the residents including the residents' supporting the only 2 story
(4 young children, etc.) within the area,
The opposition is based on many things; privacy of living and
bed rooms: substantially obstructing views; settng a precedent
(all the failed applications include the above 2 story); the domino
effect; one resident on Hawthorne decides he would like a better
-view of the bay over the Belvedere Tennis Club, the neighbor
across the street goes up, his backyard neighbor goes up, his
. neighbor across the street has to go up, etc. This does not
include side neighbors. Etc., etc., etc.
The foregoing does not include years of construction noise,
. disruption, and costs.
We already have one giant jukebox on the periphery of the area.
Let's stop here
L.J.~'e~i~'
.
1 2005
EXHIBIT NO. q
Apr 20 05 02:54p
Carol Weiss
41b-430-(091
p.l
cjay<
13S--;LY38
Di'\/;~~~;D(,j
TIU:':[:O[\1
April 13, 2005
Board of Design Review
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
lATE MAIL # ])~b
RE: Tsang application for a 2nd story addition
689 Hilary Drive
I oppose the addition of a second story.
Historically, this neighborhood has opposed second stories since the development of this
subdivision in 1950. .
I cherish the light and feeling of space that we have in Hawthorne Terrace with our
simple ranch style homes, and although the value of these homes has risen dramatically,
I feel that we would lose a great deal iflarge,two story homes1were permitted to be built
here.
Sincerely yoW's,
~tc/~
Carol Weiss
684 Hilary Drive
TibW'on, CA 94920
435-3099
EXHIBIT NO. \ D
.
.
.
e-........
-.
LA,I t MAI'L i J/ ~
CROWE-INNES &AsSOClATES
CONSULTANTS 1N EXECUT1VE SEARCH
. April 15, 2005
Town of Tiburon
Design Review Committee
1505 Tiburon Boulevard
Tiburon, California 94920
APR 1 8 Z005
Subject: Tsang Proposal for 689 Hilary Drive, Tiburon
Dear Design Review Committee,
I am writing to you to express my concern about the proposed construction of a second-
story, single-family dwelling at 689 Hilary Drive.
My husband and I have lived at 690 Hilary Drive for 6 years. We love the neighborhood
and pride ourselves on maintaining our home in order to enhance the neighborhood. Our
home is directly across the street from the proposed construction at 689 Hilary Drive and
would be significantly impacted by the proposed construction.
.
As background information, I met with Mr. Tsang on March 30th to .review his proposed
plan for the house.Mr. Tsang is a very nice man and after reviewing the plans, I did not
feel that the project would impose on our home or the neighborhood. However, after
seeing the story poles on the lot this week, it is obvious that the enormous height and
mass of the house (which already sits on an elevated knoll) will impact our home and
others and detract from the neighborhood, which is made up entirely of single-story
homes.
In summary, there are several reasons why I do not support the proposed construction and
feel that the proposed design should NOT be approved:
1. First and foremost, the addition of a second story to the house at 689 Hilary Drive
will have a major impact on our home and the homes of several other neighbors.
The proposed dwelling already sits on an elevated knoll above the street. The
addition of a second story to this already elevated building pad creates an
enormously high structure (1 would estimate approximately 30-40 feet above the
street). I object to the fact that the second story of this proposed dwelling will be
looming over other homes and looking directly down on our home, into our front
yard and master bedroom suite.
2. The scale of the proposed construction is massive. In a neighborhood where one-
story, single-family homes are the norm, this proposed structure will dominate the
street and change the look and feel of the neighborhood. The size of the proposed
structure is not appropriate for the neighborhood or the site. Before the story
.
EXHIBIT NO. II
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1120 MAR WEST' SUITE D . TIBURON . CALIFORNIA 94920 . TEL: 415/435-6211 . FAX: 415/435-6867
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poles went up, I was under the impression that the home would be tucked back
away from the street. This is not the case. The proposed structure sits fairly close
to the street. It will stick out like a sore thumb and will detract from the
neighborhood and impose on the neighbors.
3. Mr. Tsang has been very open in his intentions to build the house and sell it
immediately to a new owner. Therefore, it is obvious that the reason to request a
second story is to capture a greater view of the bay and thereby increase the price
of the house. I do not feel that it is right or fair to the established residents to alter
the character of the neighborhood for the short-term gain of someone who does
not even intend to live there.
Recommendation:
I recommend that the second story NOT be allowed on the site. The lot is big enough to
increase the square footage of the house and make it a nice family home without a second
story .
Thank you for your consideration.
Sincerely,
~~,.~
Jgnny Cr8we- Innes
President & CEO
Crowe- Innes & Associates
EXHIBIT NO. t\
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.LA1E MAll # J).(,
A&BGARDE
693 Hilary Drive
Tiburon, CA 94920
April 19, 2005
Tiburon Design Review Board
Town Council Chambers
1505 Tiburon Blvd.
Tiburon, CA 94920
Subject: Application of Ignatius Tsang seeking approval of construction
of additions to an existing single-family dwelling, with
variance for reduced side yard set back
(Project location - 689 Hilary Dr. -
Assessor's Parcel No. 039-211-07 [DW]).
Meeting of April 21, 2005
Dear Members of the Board,
.
. On Saturday, April 16, 2005, Mr. Tsang invited his neighbors to review his proposed
additions. We attended the presentation along with five other neighbors. We apprec;iate
Mr.Tsang's courtesy.
During his presentation, Mr. Tsang informed us that in addition to the reduced side yard
setback, he planned to add a second story to the house. Almost all of the planned
additions are to be on the second floor. We also learned that Mr. Tsang does not plan to
live in the house himself but to sell the house after making the additions and
improvements, hoping to make a profit from the transaction.
Mr. Tsang has put up story polesto show the outline of his proposed construction.
Looking at the story poles, it is obvious that the new addition will block views of the hills
from our west-facing ':vindow. In addition, the windows from the second floor will look
down directly into our backyard, depriving us of our privacy. Both these factors will
have an adverse impact on the value of our property.
While we have no objection to Mr. Tsang making a profit from this transaction, we do
have great reservations about the profit being made at our expense. Therefore, we
request that the Board deny Mr. Tsang authority to add a second story to his house.
.
Very truly yours,
\J\L~ Ob~~~
P~d and Birgifu Gar~1
EXHIBIT NO. \ l--
Noel D. & Jennifer S. Isaac T:i'i"
20 Del Mar Drive, Tiburon, CA 94920 Tel: 415-789 535.if'
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April 19, 2005
T own of Tiburon
Design Review Board
1505 Tiburon Boulevard
Tiburon
CA 94920
LATE MAIL #M,
Re: 689 Hilary Drive, Tiburon
Dear Members of the Design Review Board
This letter is in response to the notice we received concerning
consideration by the DRB on April 21, 2005 of the Ignatius Tsang
application for additions to an existing single-family dwelling at the
above address.
.
The story poles that have been installed can be seen from our back-
yard, but the planned addition would not adversely affect our views.
Our greater concerns are that Mr. Tsang is an architect/ developer
who would like to convert the house to a two-story property, but
who does not intend to live there after it is remodeled.
The Rock Hill Road end of Hilary and Hawthorne Drives comprise
predominantly single story homes that, as a whole, give a very
pleasant feel to the neighborhood. Approval of construction of a two
story 28' 9" high addition would be both out of scale and character
with all the surrounding properties and would disproportionately
impact the character of the whole neighborhood. To support our
concern, please note that it was only five years ago that the DRB
approved the construction of a two-story house of similar height next
to us at 30 Del Mar Dr. That house replaced a single story home very
.
EXHIBIT NO. l3
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much like those in the neighborhood under discussion. The impact
of the two story property at 30 Del Mar Dr. is felt by both Hilary and
Hawthorne Drives and the house is often referred to in derogatory
terms by neighbors. We cannot imagine anyone living in the
neighborhood wanting a similar additional eyesore constructed in
our midst! (See attached picture.)
We would implore the DRB not to approve a request by a developer
which will negatively impact a neighborhood, simply so that the said
developer can subsequently secure a higher sale price on the
property because it has a Bay view!
We shall be outof town on the date the DRB will be holding its
meeting, but would ask you take into account our concerns regarding
this application.
Yours truly,
I~
V -'">
Noel & Jennifer Isaac
EXHIBIT NO. l ~
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EXHIBIT NO. {~ .
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April 19, 2005
Jean M.Stewart
696 Hilary Dr.
Tiburon, Ca. 94920
PhA15-847-3223 Fax (212) 208-4546
LATE MAIL # l>-G:,
To: The Town of Tiburon Design Board I Kirk Beales
Town Hall
1505 Tiburon Blvd.
Tiburon, Ca. 94920
Re: The April 21 st hearing for the renovation project at 689 Hilary Dr.
Dear Mr. Beales & other members;
As a resident less than 300 feet from the proposed major renovation project at 689 Hilary
Drive, part of the Hawthorne Terrace development, I hereby notify the Design Review
Board of my opposition to the magnitude of the new owner Mr. Tsang's proposed
remodel and addition.
Mr. Tsang invited the residents this past Saturday on April 16t\ to view his plans and
built scale model that he would be using for the design review hearing this week on
Thursday April 21, 2005. Seven neighbors were in attendance, most of which would
have a direct impact from the proposed project.
The neighbors in attendance, spent 2 ~ hours with Mr. Tsang and expressed concerns
about the following issues:
1. the magnitude of a second story does not fit the' character of the neighborhood
2. the neighbor next door will lose sunlight from the second story
3. the next door neighbors and the 2 homes directly across the street would lose
privacy due to the excessive height of about 40 feet. * ( see below)
4. 4. No lighting plan has been prepared to show a house of that square footage
which is double to the other homes on Hilary Drive, and the impact of the
amount of light emitted from the large numbers of windows on the two story
home at night.
5. The fact that this home will set a precedence from this point forward, that all
single story homes can be converted to two stories which will impede residents
views, due to the nature of the percentage of gradation ofthe topography.
* Base of the existing structure is 10 feet from street level. Adding 30 feet as proposed,
makes the structure 40 feet high, over 3 stories.
EXHIBIT NO. 14
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6. We were aware that the listing realtor of the property David Gilbert had told Mr.
Tsang he could build a two or THREE story since there was only a hill behind
him and no residences with views to impede.
7. We were also aware that this property was merely a profit property to "flip" for
him and that we understood his concerns were not the same as ours since he
would not be living there.
8. The style of the home is not in fitting with the character or scale of the
neighborhood. There is no home on Hilary Drive in the 600 Block that
resembles anything like this.
.
Understanding Mr.Tsang's desire to maximize his return by building the largest square.
footage property, the neighbors had the following counter proposals for Mr. Tsang:
1. reduce the size of the second story to ~ of the size and push it back towards the
rear of the structure as not to impede their privacy or right to sunlight due to the
extreme height
2. make a single story only and add square footage in the back of the property, by
cutting into the hillside
3. reduce the numbers of window on the second story
4. draw a proposed lighting plan
Mr. Tsang decided at the close of the meeting, to delay his hearing for April 21, 2005 and
would come up with another design that addressed all of the above stated issues. It seems,
as of yesterday Monday April 18,2005, Mr. Tsang has decided to NOT DELAY his
meeting and use the existing plans that the residents have complained about and not even
bothered to notify the residents that he was going through with the scheduled hearing.
.
Mr. Tsang has deceived the neighbors on more than one occasion. The mere fact that he
is an architect, has his own construction crew, and built several "spec homes' in the past
seems to give him more arrogance. Mr. Tsang basically stated in meetings with him, that
he knows what types of homes people will want to buy and that if we don't like his plans
then that is unfortunate because he can not please everyone he has a right to do what he
wants with his property, since he hopes it will sell to a "soccer mom".
I do hope that the Design Review Board understands that the magnitude of this project is
detrimental in many ways to the integrity and future of the neighborhood as well as
invading the rights to privacy of the immediate residents. I do hope you give serious
considerations to the residents and their views, as most of them have been the original
owners of these homes and lived in them for over fifty years.
Sincerely,
Jean M. Stewart
tl(
EXHIBIT NO.
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Jocelyn McDonnell
687 Hilary Drive
Tiburon, CA 94920
415-435-1365
. LATE MAIL # D~
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April 20th, 2005
Tiburon Town Hall
Tiburon Design Review Board
1505 Tiburon Blvd.
Tiburon, CA 94929
Design Review Board Chairman: Kirk Beales, Boardmembers: Bird, Figour, O'Donnell and Teiser .
Re: 689 Hilary Drive - Major AdditionsNariance requested by Ignatius Tsang
Dear Chairman Beales and Boardmembers:
I apologize for the late submission of my letter of opposition to the Major AdditionsNariance at 689 Hilary
Drive. I have lived at 687 Hilary Drive for about 27 years.
The Mission Statement on the business card ofIgnatius Tsang reads:
. Tsang Architecture creates meaningful Architecture through a thoughtful process.
Our Architecture is contextual. and innovative.
Architecture is a celebration of Life.
When Mr. Tsang introduced himself to me I told him I had a concern that he wanted to add a two-story
house and I asked if he was going to live in the house or flip it. He never said he was going to flip it. He
began talking about his children, their ages and what they were doing in school. I presumed, wrongfully,
that Mr. Tsang intended to be my new neighbor. I have a firm belief in the Win/Win concept in my life.
The first time Mr. Tsang showed me his projected Major AdditionsNariance it was a three-story house. I
worked with Mr. Tsang and asked him to be sensitive to the privacy of our neighbors across the street
because a two story house would impact their privacy dramatically much less a three story house. I
suggested he go to a Design Review Board (DRB), meeting so he would understand the process of Tiburon,
since he had never built in our community before and that he would want to get through the process as
expeditiously as possible. I also suggested he contact each of the neighbors to be impacted and to also
meet with them all, on a Saturday, before being on the Agenda of the DRB. I asked him to submit a
lighting plan as his house was above the neighbors across the street and lights would impact their living
rooms, bedrooms andprivacy. Mr. Tsang said he was not required to submit a lighting plan, because the
house was a remodel.
When Mr. Tsang's story poles were being installed I called him to lethim know the poles in the back yard
were not in alignment and needed to be corrected before members of the DRB arrived. Friday, April 15th I
heard from a neighbor that Mr. Tsang told her that he planned to sell his property to a Soccer Mom and this
was the first time I heard that Mr. Tsang had no intention of being my neighbor.
When Mr. Tsang met with the neighbors of 689 Hilary Drive, April 16, 2005, he presented an exquisite
model of a major addition. However, this model is out of character for the existing one-story houses in the
neighborhood of Hawthorne Terrace and would be more appropriate for Gilmartin Drive or Belvedere.
Seven directly impacted neighbors and Mr. Tsang met Saturday, April 16th from 10:00AM to 12:30PM and
expressed their concern regarding his project with the size, bulk, mass, encroaclunent of privacy and loss of
natural sunlight as unacceptable. His project would appear as a three-story structure from street level and
EXHIBIT NO. \ S-
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is looking taller than the house at 20 Del Mar that encroaches on the tranquility of our neighborhood from
above. Several suggested plans were made available by the neighbors during the morning meeting. Mr.
Tsang told us this was his fIrst attempt at a complete remodel and implied he knew better than we did. We
all agreed we did not want him to lose money on his project and we did not want to lose the integrity of our
neighborhood. When Mr. Tsang left the meeting Saturday he said he would contact the Town of Tiburon,
. Monday, April 18th, and withdraw his application, create a new model and come back to the neighbors
before going to the DRB. I checked with the Town Hall on Monday and Mr. Tsang had checked in with
them and not asked to be removed from the Agenda. I talked to Town Staff on Tuesday and they had not
heard from Mr. Tsang regarding the removal of his application to withdraw his application from this, the
April 21 st DRB Agenda. This has prompted my letter of opposition at this time.
.
I am very proud of the unique neighborhood I live in. We do not have the strong wind of the houses further
up the hill. We have a flat street and I have watched upwards of a dozen children at once playing ball and
tag on this level block. Neighbors talk to each other. I have a strong community spirit, as my history of
being a volunteer and past board member of St. Hilary's will show. In addition I have worked with the
Town of Tiburon, Lou Brunini, a representative of CalTrans and St. Hilary's when I was Hawthorne
Terrace President. The neighborhood andSt. Hilary's worked together to garner sufficient warrants to
qualify to get the Traffic Light installed at Rock Hill and Tiburon Blvd. I worked with my community,
personally recommending the Handicapped Parking access near the bus stop at the foot of Gilmartin during
my years on the DRB.
I take issue with the mission statement reading:
Tsang Architecture creates meaningful Architecture through a thoughtful process.
Standing in his driveway Saturday, Mr. Tsang suggested that the shadow on my windows showed that if he
went up to the height he wants, it would not impact my loss of daylight from my windows. I explained to
Mr. Tsang tllat the loss is when you look out the window, not into the window.
His thoughtful process also uses existing pine trees as story poles. I am disappointed that on two separate
occasions he and those he hired to do the work needed to be asked to install story poles correctly. I am sure
using pine trees as story poles does not comply with Town of Tiburon guidelines.
.
The neighbors have encouraged Mr. Tsang to expand his structure on a one-story level. Mr. Tsang does
not want to incur the expense .of cutting into the hill. Mr. Tsang told me at the Saturday meeting, he needed
to go up and have the large mass of his structure because he wanted to take advantage of the great school
systems between St. Hilary's and Reed Union School District and the future children needed a larger house.
I pointed to houses on the block and showed him which homes raised one, two, three, four, five (the house
on the other side of Mr. Tsang's property), and seven children. All families in a one story home.
My neighbors and myself are not responsible for what ever the Realtor told Mr. Tsang to make the sale.
The neighborhood should not be punished if Mr. Tsang took the word of the Realtor and did not do his own
research properly.
I am asking the Tiburon Design Review Board to please consider the long existing quality and integrity of
.our single story neighborhood and to help us keep it that way.
Re: Mr. Tsang's Mission Statement: Architecture is a celebration of life, please help Hawthorne Terrace
Homeowners to celebrate the continued life of our neighborhood with its single story homes.
On behalf of the Hawthorne Terrace Homeowner's, please accept my appreciation for your continued
volunteer time and effort as you work for the continued betterment of Tiburon.
,.~ _~incerely
,"---: --- - '"
.'.0~\':::::.,~,-;. ,/"v~
Jocelyn~rOnnell '(
EXHIBIT NO. l~
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LATE MAtL &1)-10
695 Hilary Dr.
Tiburon Ca 94920
Tel: and Fax 415-435-1455
E-mail:robertchandler33@aol.com
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April 21, 2005
Design and Review Board
Town of Tiburon
1505 TiburonBlvd.
Tiburon Ca 94920
r) 'I '20".'-
'- I . U:)
PLl'.i'~N:!JC; D!\/ISION
TOWN OF Tj8Ur~ON
Re: 689 Hilary Dr Request for Second Story and Expansiqn
Dear Board Members
We live at 695 Hilary Drive for 27 years. The proposed 2nd. story and expansion as proposed
would negatively impact the enjoyment of our home. We have looked at the story poles in
place. If allowed to be built, the addition will restrict the view from two of our bedrooms and
our outdoor patio area. The loss of view and openness would severely restrict the enjoyment
of our living in our home.
. The story poles show the addition would tower over the existing single level homes in
our Hawthorne Terrace Unit #2 subdivision.
. The proposed addition does not comply with the C.C.& R's of Hawthorne Terrace Unit
#2 subdivision regarding size and being in harmony with the community. Simply put,
there are no other second story large homes in the immediate area.
.
. Our neighborhood wishes to continue to be homogenous in house size and design.
That is why as homeowners, our community wants to stay the way we are. Please
note the neighborhood representation this evening. There are no large towering
houses in a neighborhood with relatively small single story homes.
. The precedent effect will be established of a second story house in Hawthorn Terrace
Unit #2. Other real estate speculators will attempt to do the same thing. When will it
stop?
Dear Board members, we and those here tonight urge you to deny the design as
presented in the drawings and shown with the story poles. No second stories please.
EXHIBIT NO. l7
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IHIBIT NO.--1 7
P. 2 DF 2...-
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LATE MAIL' E.~
A&BGARDE
693 Hilary Drive
Tiburon, CA 94920
'I 2005
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May 17,2005
Tiburon Design Review Board
Town Council Chambers
1505 Tiburon Blvd.
Tiburon, CA 94920
Subject: Application ofIgnatius Tsang seeking approval of construction
of additions to an existing single-family dwelling, with
variance for reduced side yard set back
(project location - 689 Hilary Dr. -
Assessor's Parcel No. 039-211-07 [DW]).
Meeting of April 21, 2005
Dear Members of the Board,
On April 19 , 2005, I hand-delivered a letter (copy attached) in opposition to the proposed
application.
.
A hearing on the application was held on April 21, 2005. At the hearing Mr, Tsang was
advised to scale down the proposed additions to the property. A revised plan for the
proposed addition was filed with the Town of Tiburon on May 9,2005.
Also, revised story poles have been put up for the proposed construction.
Looking at the revised story poles, we still believe that, even with the modified plan, the
concerns raised in our letter of April 19, 2005 still remain to be addressed. The new
addition will still block our views of the hills, and the south-facing windows on the
second floor will look directly into our backyard and one of our bedrooms.
Further, we believe that the lot size of Mr. Tsang's property is large enough to
accommodate the proposed expansion without building a second story.
Based on the above, we request that the Board deny Mr. Tsang the authority to add a
second story to his house.
Very truly yours,
Jt L.......... ~... ~.
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Anand and Birgitta Garde \...1
EXHIBIT NO.
\B
.
To: Tiburon Town Council
. 1505 Tiburon Blvd., Tiburon, Ca., 94920
From: Mr. & Mrs. D. L. Di Mare
692 Hilary Dr., Tiburon, Ca., 94920
Re: 698 Hilary Dr. - Tsang addition
Dear Council Members,
As a resident of 692 Hilary Drive since 1961 we have seen
almost every family on this street make improvements of
one kind or another to their homes. Always the
improvements have been in keeping with the character of
the neighborhood. Requested second story additions
were rigorously and successfully fought against. We hope
you will support our neighbors and us by agreeing with our
challenge to the design board approval of May 19, 2005.
.
.
RECEIVED
JUN 2 2 2005
TOWN MANAGERS OFFICE
TOWN OF TlBURON
* Regarding 689 Hilary Drive, Mr. Tsang speculated
that a second story was needed because he felt that the
potential of a "view" would add to the value of his
proposed house. A view of Wolfback Ridge and the Bay
can already be seen from the existing house on the site.
* The houses across from 689 Hilary Drive already
perceive the one story house as a two story dwelling due
to the fact that its ground floor level is more than eight feet
above street level. To allow an additional floor to the
home would, in essence, force those of us across from
689 to face what will appear to us to be a towering, three
story structure totally out of character with our
neighborhood.
* We have deep concerns that our indoor and outdoor
EXHIBIT NO. iC(
Sf. Llf2--
privacy will be lost to us. Our master bedroom, which
faces 689, has cloistered windows which will be seen into .
by viewers from the proposed second story addition.
Outdoors, our front yard privacy fence will be useless in
the face of a second story addition. The privacy we have
enjoyed for the last 43 years will therefore be
compromised.
* Mr. Tsang proposes that a "family room" is essential
to the potential of a sale. Why has he not been
challenged to extend the proposed structure in the back of
the site?
Second story additions have been an issue this
neighborhood has fought against for many years. We find
it sad that a real estate speculator has arrived j with no
intention of living here, to change all of this. This
neighborhood should be allowed to keep its nearly 50 year .
continuity of character intact. This is not a "run down"
neighborhood in need of oversized houses that feel like
they belong elsewhere. We respectfully ask that Mr.
Tsang not be allowed to build his speculative house with a
. second story. .
Sincerely yours,
f)w;~ &Pl.ML-
I1t CUfl a..u.* ktt Wt ~
OomiHic & Margaret Oi Mare
EXHIBIT NO. l'1
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TOWN OF TIBURON
STAFF REpORT
ITEM NO. -.11
MEETING DATE: JUNE 29, 2005
To: TOWN COUNCIL ~
From: SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT~
Subject: ZONING ORDINANCE TEXT AMENDMENT TO ADD PRO IONS
REGARDING ECONOMIC EXCEPTIONS; FILE #Z2005- INANCE--
INTRODUCTION AND FIRST READING
Date:
June 21, 2005
Reviewed By:
BACKGROUND
At its meeting of June 15,2005, the Town Council considered a zoning text amendment creating an
application process for "Economic Exceptions" in order to address potential takings claims prior to
final action by theTown. The Town Council held a public hearing but took no formal action on the
item. Members of the Council expressed concern about the following:
1) The content and scope of the list of information and materials required to be submitted for
the Economic Exception application (Section 16-7.4(a).
2) The amount of time (originally ten days) allowed for the applicant to gather said information
and materials (Section 16-7.4(b).
3) The length oftime potentially needed to conduct the Economic Exception application review
process, including retention of economic specialists/consultants by the Town.
4) The wisdom of adopting an essentially untested application process.
Councilmembers also expressed a desire to hear the opinions of Vice-Mayor Smith on this matter
before taking any specific action, due to his expertise in real estate law.
ANALYSIS
'\
Staff offers the flowing brief comments on the concerns listed above, in order of appearance.
1) The list of materials required for submittal of an Economic Exception application is based
closely on the model ordinance created by the Institute for Local Government (ILG), which
draws upon existing case law by requesting the types of economic data that the courts have
used in deciding takings lawsuits. Information regarding current fair market value of the
property was purposely excluded from the ILG (and Town) list. The list attempts to elicit
valid and useful economic information regarding a property without being onerous.
Tiburon Town Council Staff Report June 29. 2005 1
..
2) To address the concerns about limited time to submit the requested information, Staff has .
added Section 16-7 .2(b) that would allow additional time to submit the materials. This
provision also protects the Town by requiring extensions from statutory deadlines where
needed. The prior ten (10) day provision has been left "blank" in Sections 16-7.3(d) and 16-
7 .4(b) so that the Council may specify a number of days if ten is not acceptable.
3) Staff acknowledges that the Economic Exception application process is new and untested,
and that it is unknown how long and/or how smoothly such a process would unfold. The
draft ordinance attempts to reasonably accommodate both the applicant and Town through
provisions for additional time for the applicant and time extensions for statutory deadlines
for the Town when needed. Town Staff should take reasonable steps to anticipate
foreseeable needs, such as preparing a list of economic consultants who could be retained on
short notice for the Town's review purposes, and who would already be familiar with the
Town's ordinance.
4) The Town Attorney strongly believes that while the Economic Exception process is unlikely
to be frequently used, if such a situation arises, its existence could save the Town from
protracted litigation and its accompanying high costs in dollars and staff resources.
CEQA COMPLIANCE
This amendment has no potential to result in an adverse environmental impact and is exempt from
CEQApursuant to Section 15308 and Section 15061(b)(3) of the CEQA Guidelines.
.
RECOMMENDATION
The Town Council should conduct a public hearing on the proposed zoning ordinance text
amendment and address any issues raised. If the Council wishes to proceed with adoption ofthe text
amendment, it should move to read by title only, pass the motion, and hold introduction and first
reading ofthe ordinance by roll call vote. The public hearing should then be continued to the meting
of July 20,2005 for consideration of a second reading and adoption.
EXHIBITS
1. Draft Ordinance.
2. Redlined version showing substantive changes since the hearing on June 15,2005.
3. Staff Report from June 15,2005 meeting.
Tiburon Town Council
Staff Report
June 29, 2005
2
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ORDINANCE NO. N.S.
AN ORDINANCE OF THE TOWN COUNCIL OF
THE TOWN OF TIBURON ADDING A NEW
ARTICLE VII TOTITLE IV, CHAPTER 16
(ZONING) OF THE TIBURON MUNICIPAL CODE
REGARDING ECONOMIC EXCEPTIONS
The Town Council of the Town of Tiburon does ordain as follows:
SECTION 1. FINDINGS.
A. The Town Council has held duly noticed public hearings on ,2005
and , 2005, and has heard and considered public testimony on
the proposed amendments.
B. The Town Council finds that all notices and procedures required by law attendant
to the adoption of this Ordinance have been followed.
C. The Town Council finds that the amendment actions made by this Ordinance are
necessary for the protection of the public health, safety, and welfare.
D. The Town Council has found that the amendments made by this Ordinance are
consistent with the goals and policies of the Tiburon General Plan and other
adopted ordinances and regulations of the Town of Tiburon.
E. The Town Council finds that this project is categorically exempt from the
requirements of the California Environmental Quality Act per Section 15308 of
the CEQA Guidelines and under the "general rule", pursuant to Section
l5061(b)(3) ofthe CEQA Guidelines.
SECTION 2. AMENDMENT TO MUNICIPAL CODE.
A new Article VII to Chapter 16 (Zoning), Title IV, of the Tiburon Municipal
Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to
read as follows:
Article VII.. Economic Exceptions
\
16-7.1.
Purpose.
The purpose of this article is to ensure that the Town applies its General Plan, ordinances,
resolutions and other measures that regulate land use for the protection and promotion of
the public health, safety, general welfare and the environment (collectively, "Land Use
EXHIBIT NO. 1
Town ofTiburon
Ordinance No. NS
--/--/2005
1
1 Regulations") in a manner that treats property owners fairly and in a manner consistent
2 with state and federal law. This article authorizes the Town to grant an Economic
3 Exception relaxing the application of the Town's Land Use Regulations to the extent
4 necessary to avoid an unconstitutional taking under the United States or California
5 Constitutions.
.
6
7 16-7.2.
Application for Economic Exception.
8 (a) If any applicant believes that strict application of the Town's Land Use
9 Regulations would not permit an economically viable use of his or her property, or would
10 otherwise effect an unconstitutional taking of property, the applicant may apply for an
11 Economic Exception. The application for an Economic Exception shall include the
12 entirety of all parcels that are geographically contiguous in which the applicant holds an
13 interest at the time of the application. Any applicant that does not submit a request for an
14 Economic Exception as set forth in Section 16-7.3 shall be deemed to have waived any
15 objections based on the Takings clauses of the United States and California Constitutions
16 to the strict application of the Town's Land Use Regulations, including, without
17 limitation, any condition of approval, mitigation measure or other measure imposed to
18 implement said regulations. The applicant shall be required to fund a:I1 costs associated
19 with independent peer review studies and reports commissioned by the Town of any
20 information submitted by the applicant, or the independent preparation of such
21 information by the Town or its consultants, and may be required to submit an advance
22 deposit upon application to cover such costs.
23 (b) The Director may, in his sole discretion to ensure the fairness of the process,
24 grant extensions of any deadlines in this Article in order to allow the applicant a
25 reasonable amount of time to prepare the materials required under Section 16-7.4 for the
26 application and/or to allow the Town enough time to analyze the application. However,
27 if any such extension, would imperil the Town's ability to comply with other deadlines
28 established by law (including, without limitation, the deadlines contained in the
29 California Permit Streamlining Act and the California Environmental Quality Act), the
30 Director may require the applicant to grant an extension to such other deadlines.
.
31
32 16-7.3.
Time for Filin!! Application.
33 (a) The applicant shall apply for the Economic Exception as early as possible in
34 the process of obtaining land use approvals for the subject property, i.e., before or in
35 conjunction with the first land development application submitted for the property.
36 (b) Notwithstanding subsection 16-7.3( a), if the Planning Commission is the
37 decision-making body for the land development application and the applicant's Economic
38 Exception request is based on a condition of approval, mitigation measure or other
39 measure imposed by the Planning Commission, the applicant shall submit the application
40 for an Economic Exception within ten (10) days of the Planning Commission's action on
41 the land development application. The request for an Economic Exception shall be
.
Town ofTiburon
Ordinance No. NS.
--/--/2005
2
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submitted using the Town's regular appeal process for contesting zoning permit decisions
by the Planning Commission.
(c) If the Planning Commission acts on the land development application as an
advisory body and the applicant's Economic Exception request is based on a condition of
approval, mitigation measure or other measure recommended by the Planning
Commission, the applicant shall submit the request for an Economic Exception within ten
(10) days of the Planning Commission's making its recommendation on the merits of the
land development application. The Town Council shall consider the request for an
Economic Exception prior to taking action on the merits of the land development
application.
(d) If the request for Economic Exception is based on a condition of approval,
mitigation measure or other measure first proposed at a meeting of the Town Council, the
applicant may submit the application for an Economic Exception within _ U days
of receiving constructive notice of said proposal.
16-7.4.
Required Information.
(a) The applicant shall provide all of the following information:
1. The date the applicant purchased or otherwise acquired the property, and from
whom.
2. The purchase price paid by the applicant for the property and a descriptio1.1 of
any consideration that the applicant received for that purchase price in addition to the
property.
3. The fair market value of the property at the time the applicant acquired it,
describing the basis upon which the fair market value is derived, including any appraisals
done at the time.
4. The general plan, zoning or similar land use designations applicable to the
property at the time the applicant acquired it, as well as any changes to these designations
that occurred after acquisition.
5. Any development restrictions or other restrictions on use, other than
government regulatory restrictions described in (4) above, that applied to the property at
the time the applicant acquired it, or which have been imposed after acquisition.
6. Any change in the size of the property since the time the applicant acquired it,
including a discussion of the nature of the change, the circumstances and the relevant
dates.
7. A discussion of whether the applicant has sold or leased a portion of, or interest
in, the property since the time of purchase, indicating the relevant dates, sales prices,
rents, and nature of the portion or interests in the property that were sold or leased.
Town ofTiburon
Ordinance No. N.S
--/--/2005
3
1 8. A title report for the property, and any litigation guarantees or similar
2 documents that affect or limit the use of all or a portion of the property, including copies
3 of relevant underlying documents referenced therein.
4 9. Any offers to buy all or a portion ofthe property which the applicant solicited
5 or received, including the approximate date of the offer and offered price.
6 10. The applicant's costs associated with the ownership of the property,
7 annualized for each of the last five (5) calendar years, including property taxes, property
8 assessments, debt service costs (such as mortgage and interest costs), and maintenance,
9 operation and management costs.
10 11. Apart from any rent received from the leasing of all or a portion of the
11 property, any income generated by the use of all or a portion of the property over the last
12 five (5) calendar years. Ifthere is any such income to report it should be listed on an
13 annualized basis along with a description of the uses that generate or have generated such
14 Income.
.
15 12. A written explanation as to why the application is necessary to avoid an
16 unconstitutional taking.
17 13. Any other information that the Director determines is required to analyze the
18 application.
19 (b) The foregoing information must be submitted within _ U days of submission
-20 of the application for an Economic Exception.
21
22 16-7.5.
.
Economic Viahility Determination~ Economic Exception.
23 (a) The Town Council will hold a public hearing on any application for an
24 Economic Exception. The Council shall grant an Economic Exception from strict
25 application of the Town'sLand Use Regulations if the Council makes the following
26 findings:
27 (1) Based on the economic information provided by the applicant, as well as any
28 other relevant evidence, strict application of the Town's Land Use Regulations would not
29 provide an economically viable use of the applicant's property or would otherwise
30 constitute an unconstitutional taking of the applicant's property.
31 (2) The Economic Exception granted will result in a project which, to the
32 maximum extent possible while avoiding an unconstitutional taking, (a) complies with
33 the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental
34 damage as required by the California Environmental Quality Act.
35 (b) The Council's findings shall identify the evidence supporting the findings.
36
37
38
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Town ofTiburon
Ordinance No. NS
--/--/2005
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SECTION 3. SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this chapter is for any
reason held by a court of competent jurisdiction to be invalid, such decision shall not
affect the validity of the remaining portions of this chapter. The Town Council declares
that it would have passed this chapter and each section, subsection, sentence, clause and
phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or
phrases be declared invalid.
SECTION 4. EFFECTIVE DATE.
This Ordinance shall take effect and be in force thirty days after the date of
passage, and before the expiration of fifteen (15) days after passage by the Town Council,
a copy of the ordinance shall be published with the names of the members voting for and
against it at least once in a newspaper of general circulation in the Town of Tiburon.
This ordinance was introduced at a regular meeting of the Town Council of the
Town of Tiburon on ,2005, and was adopted at meeting ofthe
Town Council of the Town of Tiburon on ,2005, which was noticed
pursuant to Government Code Section 65090, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
MILES BERGER, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Town ofTiburon
Ordinance No. N.s.
--/--/2005
5
ORDINANCE NO.
N.S.
AN ORDINANCE OF THE TOWN COUNCIL OF
THE TOWN OF TIBURON ADDING A NEW
ARTICLE VII TO TITLE IV, CHAPTER 16 OF THE
TIBURON MUNICIPAL CODE, REGARDING
ECONOMIC EXCEPTIONS
The Town Council of the Town of Tiburon does ordain as follows:
SECTION L A new Article VII to Chapter 16, Title IV, of the Tiburon
Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon
Municipal Code to read as follows:
Article VII. Economic Exceptions
16-7.1. Purpose.
The purpose of this article is to ensure that the Town applies its General Plan, ordinances,
resolutions and other measures that regulate land use for the protection and promotion of
the public health, safety; general welfare and the environment (collectively, "Land Use
Regulations") in a manner that treats property owners fairly and in a manner consistent
with state and federal law. This article authorizes the Town to grant an Economic
Exception relaxing the application of the Town's Land Use Regulations to the extent
necessary to avoid an unconstitutional taking under the United States or California
Constitutions.
16-7.2.
Application for Economicallv Exception.
lliLIfany applicant believes that strict application of the Town's Land Use
Regulations would not pennit an economically viable use of his or her property, or would
otherwise effect an unconstitutional taking of property, the applicant may apply for an
Economic Exception. The application for an Economic Exception shall include the
entirety of all parcels that are geographically contiguous in which the applicant holds an
interest at the time of the application. Any applicant that does not submit a request for an
Economic Exception as set forth in Section 16-7.3 shall be deemed to have waived any
objections based on the Takings clauses of the United States and California Constitutions
to the strict application of the Town's Land Use Regulations, including, without
limitation, any condition of approval, mitigation measure or other measure imposed to
implement said regulations.
(b) The Director may. in his sole discretion to ensure the fairness of the process,
grant extensions of any deadlines in this Article in order to allow the applicant a
reasonable amount of time to prepare the materials required under Section 16-7.4 for the
ill2l2lication an~!or to allow the Town enough tirpe to analyze theJlill!.lLeation._HoweY-~J~
ifany such extension, would imperil the T()\vn's ability to comply with other deiH.ilin<;li
.
.------_._-~ .-----..-..-.-.-..-------- -...
- .L!'ont1~~~~lldent:~~~~~ill~~_~._5"._,i
EXHIBITNO. d-
.
.
.
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~fi.ffiQlishecl by la'Yiincluding, with()llt limitation, the deadlines co!)tained in the
California Permit Streamlining Act and the California EnvirorrmentalQ!!alitv A..Q.1Jl1f.
Director may reqllirethe applicant to grant an extension to such other deadlines.
16-7.3.
Time for Filine: Application.
(a) The applicant shall apply for the Economic Exception as early as possible in
the process of obtaining land use approvals for the subject property, i.e., before or in
conjunction with the first land development application submitted for the property.
(b) Notwithstanding subsection 16-7.3(a), if the Planning Commission is the
decision-making body for the land development application and the applicant's Economic
Exception request is based on a condition of approval, mitigation measure or other
measure imposed by the Planning Commission, the applicant shall submit the application
for an Economic Exception within ten (10) days of the Planning Commission's action on
the land development application. The request for an Economic Exception shall be
submitted using the Town's regular appeal process for contesting zoning permit decisions
by the Planning Commission.
(c) If the Planning Commission acts on the land development application as an
advisory body and the applicant's Economic Exception request is based on a condition of
approval, mitigation measure or other measure recommended by the Planning
Commission, the applicant shall submit the request for an Economic Exception within ten
(10) days of the Planning Commission's making its recommendation on the merits of the
land development application. The Town Council shall consider the request for an
Economic Exception prior to taking action on the merits of the land development
application. .
(d) If the request for Economic Exception is based on a condition of approval,
mitigation measure or other measure first proposed at a meeting of the Town Council, the
applicant may submit the application for an Economic Exception within........Udays of
receiving constructive notice of said proposal.
16-7.4.
Required Information.
(a) The applicant shall provide all of the following information:
L The date the applicant purchased or otherwise acquired the property, and from
whom.
2. The purchase price paid by the applicant for the property, and a description of
any consideration that the applicant received for that purchase price in addition to the
property.
3. The fair market value of the property at the time the applicant acquired it,
describing the basis upon which the fair market value is derived, including any appraisals
done at the time.
4. The general plan, zoning or similar land use designations applicable to the
property at the time the applicant acquired it, as well as any changes to these designations
that occurred after acquisition.
.rD;i~t~;"C~;;;;;;~-i;;"D~~~i~~;;;;;;;; ..... .1
10
2
5. Any development restrictions or other restrictions on use, other than
government regulatory restrictions described in (4) above, that applied to the property at
. the time the applicant acquired it, or which have been imposed after acquisition.
6. Any change in the size of the property since the time the applicant acquired it,
including a discussion of the nature of the change, the circumstances and the relevant
dates.
7. A discussion of whether the applicant has sold or leased a portion of, or interest
in, the property since the time of purchase, indicating the relevant dates, sales prices,
rents, and nature of the portion or interests in the property that were sold or leased.
8. A title report for the property, and any litigation guarantees or similar
documents that affect or limit the use of all or a portion of the property.
9. Any offers to buy all or a portion of the property which the applicant solicited
or received, including the approximate date of the offer and offered price.
10. The applicant's costs associated with the ownership of the property,
annualized for each of the last five (5) calendar years, including property taxes, property
assessments, debt service costs (such as mortgage and interest costs), and maintenance,
operation and management costs. .
11. Apart from any rent received from the leasing of all or a portion of the
property, any income generated by the use of all or a portion of the property over the last
five (5) calendar years. If there is any such income to report it should be listed on an
~nnualized basis along with a description of the uses that generate or have generated such
mcome.
12. A brief written explanation why the application is necessary to avoid an
unconstitutional taking.
13. Any other information that the Director determines is required to analyze the
application.
(b) The foregoing information must be submitted within._~~_)Aays()r~ll~rrlissioIl
of the application for an Economic Exception.
16-7.5.
Economic Viability Determination; Economic Exception.
(a) The Town Council will hold a public hearing on any application for an
Economic Exception. The Council shall grant an Economic Exception from strict
application of the Town's Land Use Regulations if the Council makes the following
findings:
(1) Based on the economic information provided by the applicant, as well as any
other relevant evidence, strict application of the Town's Land Use Regulations would not
provide an economically viable use of the applicant's property or would otherwise
constitute an unconstitutional taking of the applicant's property.
(2) The Economic Exception granted will result in a project which, to the
maximum extent possible while avoiding an unconstitutional taking, (a) complies with
.
.
Deleted: ten
Deleted: 10
3
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the Town's General Plan and Zoning Ordinance and (b) minimizes environmental
damage as required bv the Califomia Environmental Quality Act.
(b) The Council's findings shall identify the evidence supporting the findings.
SECTION 2 SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this chapter is for any
reason held by a court of competent jurisdiction to be invalid, such decision shall not
affect the validity of the remaining portions of this chapter. The Town Council declares
that it would have passed this chapter and each section, subsection, sentence, clause and
phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or
phrases be declared invalid.
SECTION 3 EFFECTIVE DATE.
This Ordinance shall take effect and be in force thirty days after the date of
passage, and before the expiration of fifteen (15) days after passage by the Town Council,
a copy of the ordinance shall be published with the names of the members voting for and
against it at least once in a newspaper of general circulation published in the Town of
Tiburon.
This ordinance was introduced at a regular meeting of the Town Council of the
Town ofTiburon on June _,2005, and was adopted at a regular meeting of the Town
Council of the Town of Tiburon on June, _,2005, which was noticed pursuant to
Government Code Section 65090" byth~fo~I()\\ling\,ote:
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon, held on the _ day of
, _, by the following vote:
AYES:
NOES:
ABSENT:
MAYOR, TOWN OF TIBURON
ATTEST
- r Deleted: 50022.3
4
TOWN OF TIBURON
STAFF REpORT
.
ITEM NO. S
MEETING DATE: JUNE 15,2005
Date:
TOWN COUNCIL
ANN R. DANFORTH, TOWN ATTORNEY
SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT ~
ZONING ORDINANCE TEXT AMENDMENT TO ADD PROVISIONS
REGARDING ECONOMIC EXCEPTIONS; FILE #Z2005-01; ORDINANCE-
INTRODUCTION AND FIRST READING
June 10, 2005
To:
From:
Subject:
BACKGROUND
One of the most contentious and unpredictable areas of land use law involves takings claims.
Applicants who find their projects denied or subjected to stringent conditions of approval often claim
that the permitting agency has violated the constitutional prohibitions against taking property without
compensation. Courts tend to review such claims on a case by case basis, utilizing a number of .
factors to determine the constitutionality of the challenged actions. As a result, litigation of these
cases can be protracted, costly and of uncertain outcome.
At the February 7,2005 Town Council/Staff retreat, the Council stated that it would like to consider
adoption of an ordinance that would allow applicants to apply for an Economic Exception! from
strict application ofthe Town's land use regulations. The Institute of Local Self Governrnent (ILG)
has developed a model ordinance that creates an economic variance procedure. This procedure is
designed to both reduce the number ofta,kings claims against the adopting public agency and ensure
that before taking action on a project; the agency has before it all the facts relevant to a potential
takings claim. Staff has used this ILG model ordinance as a starting point, expanding its scope to
include conditions of approval, mitigation measures and similar factors that may arise during the
approval process.
The Planning Commission held a public hearing on the proposed zoning text amendment on June 8,
2005 and recommended favorably by adopting Resolution No. 2005-07 (Exhibit 1). The
I The proposed ordinance uses the term "exception" instead of "variance." The existing Zoning Ordinance already
has a variance procedure that uses the statutory meaning of the term (a pennit granted for a structure that is not
otherwise pennitted by the zoning regulations pursuant to Gov. Code S 6509). The Council determination
authorized by the proposed ordinance more closely resembles an exception than a variance in this context. .
Tiburon Town Council Staff Report June 15, 2005 1
EXHIBIT NO. :J
.
.
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Commission made some additions to the application submittal materials list and raised some
additional concerns discussed below.
ANALYSIS
Takings litigation generally falls into two broad categories. The first category, known as "facial"
claims, are claims that a regulation, by its mere existence, effectively takes an owner's property
without compensation. For example, if a city passed an ordinance that banned all potential use of
a parcel of property, the owner could file a facial takings challenge to that regulation. However,
such claims are valid only if there is no administrative procedure to obtain a variance or
exception allowing the land to be used in an economically remunerative way. The proposed
ordinance would create such a procedure, effectively insulating the Town's General Plan, Zoning
Ordinance and other land use regulations from facial attack.
The second broad category of takings claim is the "as-applied" challenge. In these cases, a
. property owner claims that a governmental agency's application of land use regulations to his or
her property effectively takes that property without compensation. The alleged taking generally
assumes one of three forms: (1) physical invasion (the property owner is required to surrender an
interest in the property and the requirement is not adequately related to a project impact); (2)
destruction of value (the property owner is deprived of all economically viable use of his or her
property); or (3) undue interference with reasonable, investment-back expectation.2
Physical invasion claims are relatively straightforward, hence relatively rare in recent years.
However, the second and third types of claims, commonly called "regulatory takings," are more
complex and rely on numerous facts relating to the property in question. In the absence of a
physical invasion of property, the courts have been unable to develop any set formula for
determining whether an illegal taking has occurred. However, the U.S. Supreme Court has
enumerated several factors that are critical to the inquiry and directed courts to make a case by case
inquiry. Most recently, the Court said the following:
The Court in Penn Central acknowledged that it had hitherto been "unable to develop
any 'set formula'" for evaluating regulatory takings claims, but identified "several
factors that have particular significance." . . . Primary among those factors are "the
economic impact of the regulation on the claimant and, particularly, the extent to
which the regulation has interfered with distinct investment-backed expectations." ..
In addition, the "character of the governmental action" -- for instance whether it
amounts to a physical invasion or instead merely affects property interests through
"some public program adjusting the benefits and burdens of economic life to promote
the common good" -- may be relevant in discerning whether a taking has occurred.
The Penn Central factors -- though each has given rise to vexing subsidiary questions
2 Until very recently, the Supreme Court recognized an additional takings test: whether the regulation substantially
advanced a legitimate state interest. This test was derived from Agins v. City of Tiburon (1980). On May 23,2005,
the Supreme Court eliminated this test from takings jurisprudence in Lingle v. Chevron U.S.A..
Tiburon Town Council Staff Report June 15, 2005 2
-- have served as the principal guidelines for resolving regulatory takings claims that
do not fall within the physical takings or Lucas rules)
.
The courts have identified a number of factual circumstances relevant to determining whether a
regulation causes a regulatory taking. These types of facts may be absent from the record in the
normal land use application process. If the facts are not in the record, a takings challenge is
likely to turn on external evidence, which means a protracted and costly discovery process,
followed by an evidentiary hearing.
The proposed Ordinance would require property owners to request an Economic Exception
before making a takings claim and, through the Economic Exception process, the Town would
have the opportunity to review all the facts and reasoning relevant to the potential claim. This
would enable the Town to fairly balance the rights ofthe property owner with the Town's interest
in enforcing its land use regulations. The Town would be able to tailor its regulatory programs to
avoid an unjust result. Moreover, if the Town finds that normal application of its regulations will
not constitute a taking, the Ordinance would assure that the administrative record will contain
enough facts to enable the agency to prevail at an earlier stage of litigation. This is potentially a
very significant savings in litigation costs.
The Council should note that these types of ordinances are relatively untested. However, based
on 'existing takings jurisprudence, we believe that the Ordinance is likely to reduce the incidence
of takings claims in Tiburon, and enhance the likelihood of a successful outcome in those cases
that are not resolved through the Economic Exception process. The Cities ofMalibu, Lafayette .
and Napa have somewhat similar procedures, which have not been tested in court as far as staff
has been able to ascertain. The City of Livermore has a related process that allows the City
Attorney to decide whether a regulatory application constitutes a taking. This process resulted in
the City's successful defense of a refusal to grant an exception to its scenic route protection
policies.
The operation of the Economic Exception process is fairly simple. Project applicants must request
an Economic Exception as early as possible in the approval process. Staff has expanded the
procedure to include challenges to conditions of approval, mitigation measures, and similar
impositions on project applications, because we believe them to be the most likely source oftakings
claims in Tiburon. The applicant must provide all factual information relevant to their claim and
explain why, under the stated facts, the strict application of Town regulations would constitute an
unlawful taking. The Town Council would hold a hearing on the request and could issue an
Economic Exception ifit made the following findings:
(1) Based on the economic information provided by the applicant, as well as any other
relevant evidence, strict application of the Town's Land Use Regulations would
not provide an economically viable use of the applicant's property or would
otherwise constitute an unconstitutional taking of the applicant's property.
3 Lingle v. Chevron U.S.A. 2005 U.S. Lexis 4342 (U.S. May 23, 2005) (citations omitted).
Tiburon Town Council Staff Report June 15, 2005
3
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(2)
The Economic Exception granted will result in a project which, to the maximum
extent possible while avoiding an unconstitutional taking, (a) complies with the
Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental
damage.
ISSUES RAISED BY THE. PLANNING COMMISSION
The Planning Commission raised certain concerns and asked Staff to address these issues in the
report to the Town Council. These issues are as follows:
(1) The Planning Commission expressed concern that Section 16-7.3 ofthe Ordinance might
encourage excessive filing of applications for Economic Exception, and gave the appearance
of encouraging such filings at the outset of a project application. Section 16-7.3( a) reads as
follows:
(a) The applicant shall apply for the Economic Exception as early as possible in the
process of obtaining land use approvals for the subject property, i.e., before or in
conjunction with the first land development application submitted for the property.
Staffbelieves that this provision will not encourage excessive filing of Economic Exception
applications with the original application submittal, since there would be no basis for such a
filing unless a "facial" taking was being alleged. Such claims are very rare, and Staff
believes that the purpose of this "early as possible" provision is to cover the remote
possibility of such facial claims, with the understanding that they will almost never occur,
since it is the "application" ofthe Town's land use regulations that would trigger virtually all
takings claims that might be filed.
(2)
The Planning Commission questioned whether information regarding the fair market value of
the property, and/or the value ofthe property assuming project approval, should be required
with submittal ofthe Economic Exception application. Staff believes that the ILG model
ordinance purposefully excluded such information from the submittal requirements. Such
information may be generated independently by the Town or its consultants as needed during
the Economic Exception Analysis; requiring such information from the applicant may not
secure the interests of objectivity.
(3)
The Planning Commission received a request from a member of the public (Jerry Riessen) to
modify Section 16-7.5 (a)(2) to read as follows (new text italicized):
(2) The Economic Exception granted will result in a project which, to the
maximum extent'possible while avoiding an unconstitutional taking, (a) complies
with the Town's General Plan and Zoning Ordinance; and, (b) minimizes
environmental damage, and to the maximum extent feasible, protect prominent
ridges.
Tiburon Town Council
Staff Report
June 15, 2005
4
Some Commissioners believed that ridges would already receive preferential protection .
under the Town's General Plan policies, and that the additional text was unnecessary. One
Commissioner favored inclusion of the additional text. While the Commission did not
include this text revision in its adopted resolution, it did request that the Town Council
consider inclusion before adoption, after hearing the opinion of the Town Attorney on the
matter.
CEQA COMPLIANCE
This amendment has no potential to result in an adverse environmental impact and is exempt from
CEQA pursuant to Section 15061(b)(3) ofthe CEQA Guidelines.
RECOMMENDATION
The Town Council should conduct a public hearing on the proposed zoning ordinance text
amendment and address any issues raised. Ifthe Council wishes to proceed with adoption of the text
amendment, it should move to read by title only, pass the motion, and hold introduction and first
reading of the ordinance by roll call vote.
EXHIBITS
l.
2.
3.
4.
Resolution recommending adoption to Town Council.
Draft Ordinance.
Excerpt from Institute for Local Government (ILG) website
Draft minutes of 6/812005 Planning Commission meeting (to be provided at the meeting).
.
Tiburon Town Council
Staff Report
June 15. 2005
5
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RESOLUTION 2005-07
A RESOLUTION OF THE PLANNING COMMISSION
OF THE TOWN OF TIBURON RECOMMENDING TO THE TOWN COUNCIL
ADOPTION OF AMENDMENTS TO CHAPTER 16 (ZONING) OF THE TIBURON
MUNICIPAL CODE
WHEREAS, the Town of Tiburon has initiated text amendments to the Town's Zoning
Ordinance, codified as Chapter 16 of the Tiburon Municipal Code; and
WHEREAS, the Planning Commission has determined that the project has no potential to
result in adverse impacts on the environment and is exempt from the requirements of CEQA; and
WHEREAS, notice of the public hearing on the amendments was published in a
newspaper of general circulation in Tiburon on May 29,2005 and other noticing was provided as
required by law; and
WHEREAS, the Planning Commission did hold a duly noticed and advertised public
hearing on June 8, 2005, at which testimony was received from the public, and
WHEREAS, the Planning Commission finds that the proposed amendments are
consistent with the goals and objectives of the Tiburon General Plan.
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission hereby
recommends that the Town Council adopt the amendments to Chapter 16 (Zoning) as set forth in
the attached Exhibit "A", with consideration given to suggested changes as set forth in the
minutes.
PASSED AND ADOPTED at a regular meeting of the Planning Commission of the
Town of Tiburon held on June 8, 2005, by the following vote:
AYES:
NOES:
ABSENT:
COMMISSIONERS: Aguirre, Collins, Fraser & Snow
COMMISSIONERS: None
COMMISSIONERS: Kunzweiler
A TJ'EST:
\~ "
(~, \
// !
/./ 1
l;(>vv;!~/i-LJ/:;?1/
/ sl Richard Collins
RICHARD COLLINS, CHAIRMAN
Tiburon Planning Commission
SCOTT ANDERSON, SECRETARY
Tiburon Planning Commission Resolution No. 2005-07
6/8/2005
1
EXHIBIT NO. ,
EXHIBIT "A"
.
A new Article VII to Chapter 16 (Zoning), Title N, of the Tiburon Municipal Code,
entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as
follows:
Article VII. Economic Exceptions
16-7.1. Purpose.
The purpose ofthis article is to ensure that the Town applies its General Plan, ordinances,
resolutions and other measures that regulate land use for the protection and promotion of the
public health, safety, general welfare and the environment (collectively, "Land Use Regulations")
in a manner that treats property owners fairly and in a manner consistent with state and federal
law. This article authorizes the Town to grant an Economic Exception relaxing the application of
theTown's Land Use Regulations to the extent necessary to avoid an unconstitutional taking
under the United States or California Constitutions.
16-7.2.
Application for Economic Exception.
If any applicant believes that strict application ofthe Town's Land Use Regulations would not
permit an economically viable use of his or her property, or would otherwise effect an
unconstitutional taking of property, the applicant may apply for an Economic Exception. The .
application for an Economic Exception shall include the entirety of all parcels that are
geographically contiguous in which the applicant holds an interest at the time of the application.
Any applicant that does not submit a request for an Economic Exception as set forth in Section
16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the United
States and California Constitutions to the strict application of the Town's Land Use Regulations,
including, without limitation, any condition of approval, mitigation measure or other measure
imposed to implement said regulations. The applicant shall be required to fund all costs
associated with independent peer review studies and reports commissioned by the Town of any
information submitted by the applicant, or the independent preparation of such information by
the Town or its consultants, and may be required to submit an advance deposit upon application
to cover such costs.
16-7.3.
Time for Filim.! Application.
(a) The applicant shall apply for the Economic Exception as early as possible in the
process of obtaining land use approvals for the subject property, i.e., before or in conjunction
with the first land development applicq.tion submitted for the property.
(b) Notwithstanding subsection 16-7 .3( a), ~f the Planning Commission is the decision-
making body for the land development application and the applicant's Economic Exception
request is based on a condition of approval, mitigation measure or other measure imposed by the
Tiburon Planning Commission Resolution No. 2005-07
6/8/2005
2
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.
.
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Planning Commission, the applicant shall submit the application fOf an Economic Exception
within ten (10) days ofthe PleJrning Commission's action on the land development application.
The request for an Economic Exception shall be submitted using the Town's regular appeal
process for contesting zoning permit decisions by the Planning Commission.
(c) If the Planning Commission acts on the land development application as an advisory
body and the applicant's Economic Exception request is based on a condition of approval,
mitigation measure or other measure fecommended by the Planning Commission, the applicant
shall submit the request for an Economic Exception within ten (10) days of the Planning
Commission's making its recommendation on the merits of the land development application.
The Town Council shall consider the request for an Economic Exception prior to taking action
on the merits of the land development application.
(d) If the request for Economic Exception is based on a condition of approval, mitigation
measure or other measure first proposed at a meeting ofthe Town Council, the applicant may
submit the application for an Economic Exception within ten (10) days of receiving constructive
notice of said proposal.
16-7.4.
Required Information.
(a) The applicant shall provide all of the following information:
1. The date the applicant purchased or otherwise acquired the property, and from whom.
2. The purchase price paid by the applicant for the property and a description of any
consideration that the applicant received for that purchase price in addition to the property.
3. The fair market value of the property at the time the applicant acquired it, describing
the basis upon which the fair market value is derived, including any appraisals done at the time.
4. The general plan, zoning or similar land use designations applicable to the property at
the time the applicant acquired it, as well as any changes to these designations that occurred after
acquisition.
S. Any development restrictions or other restrictions on use, other than government
regulatory restrictions described in (4) above, that applied to the property at the time the
applicant acquired it, or which have been imposed after acquisition.
6. Any change in the size ofthe property since the time the applicant acquired it,
including a discussion ofthe nature ofthe change, the circumstances and the relevant dates.
7. A discussion of whether the applicant has sold or leased a portion of, or interest in, the
property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature
of the portion Of interests in the property that were sold or leased.
8. A title report for the property, including copies of relevant underlying documents
referenced therein, and any litigation guarantees or similar documents that affect or limit the use
of all or a portion of the property.
Tiburon Planning Commission Resolution No. 2005-07
6/8/2005
3
9. Any offers to buy all or a portion ofthe property which the applicant solicited or
received, including the approximate date of the offer and offered price.. 0
10. The applicant's costs associated with the ownership of the property, annualized for
. each of the last five (5) calendar years, including property taxes, property assessments, debt
service costs (such as mortgage and interest costs), and maintenance, operation and management
costs.
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11. Apart from any rent received from the leasing of all or a portion of the property, any
income generated by the use of all.or a portion of the property over the last five (5) calendar
years. Ifthere is any such income to report it should be listed on an annualized basis along with a
description of the uses that generate or have generated such income.
12. A written explanation as to why the application is necessary to avoid an
unconstitutional taking.
13. Any other information that the Director determines is required to analyze the
application.
(b) The foregoing information must be submitted within ten (10) days of submission of the
application for an Economic Exception.
16-7.5.
(a) The Town Council will hold a public hearing on any application for an Economic
Exception. The Council shall grant an Economic Exception from strict application of the Town's
Land Use Regulations ifthe Council makes the following findings:
(1) Based on the economic information provided by the applicant, as well as any other
relevant evidence, strict application of the Town's Land Use Regulations would not provide an
economically viable use of the applicant's property or would otherwise constitute an
unconstitutional taking ofthe applicant's property.
(2) The Economic Exception granted will result in a project which, to the maximum
extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General
Plan and Zoning Ordinance; and, (b) minimizes environmental damage.
(b) The Council's findings shall identify the evidence supporting the findings.
Economic Viability Determination~ Economic Exception.
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Tiburon Planning Commission Resolution No. 2005-07
6/8/2005
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ORDINANCE NO.
N.S.
AN ORDINANCE OF THE TOWN COUNCIL OF
THE TOWN OF TIBURON ADDING A NEW
ARTICLE VII TO TITLE IV, CHAPTER 16
(ZONING) OF THE TIBURON MUNICIPAL CODE
REGARDING ECONOMIC EXCEPTIONS
The Town Council ofthe Town of Tiburon does ordain as follows:
SECTION 1. ADDITION TO MUNICIPAL CODE.
A new Article VII to Chapter 16 (Zoning), Title IV, of the Tiburon Municipal
Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to
read as follows:
Article VII. Economic Exceptions
16-7.1. Purpose.
The purpose of this article is to ensure that the Town applies its General Plan, ordinances,
resolutions and other measures that regulate land use for the protection and promotion of
the public health, safety, general welfare and the environment (collectively, "Land Use
Regulations") in a manner that treats property owners fairly and in a manner consistent
with state and federal law. This article authorizes the Town to grant an Economic
Exception relaxing the application of the Town's Land Use Regulations to the extent
necessary to avoid an unconstitutional taking under the United States or California
Constitutions.
16-7.2.
Application for Economic Exception.
If any applicant believes that strict application ofthe Town's Land Use Regulations
would not permit an economically viable use of his or her property, or would otherwise
effect an unconstitutional taking of property, the applicant may apply for an Economic
Exception. The application for an Economic Exception shall include the entirety of all .
parcels that are geographically contiguous in which the applicant holds an interest at the
time of the application. Any applicant that does not submit a request for an Economic
Exception as set forth in Section 16-7.3 shall be deemed to have waived any obj ections
based on the Takings clauses of the United States and California Constitutions to the
strict application of the Town's Land Use Regulations, including, without limitation, any
condition of approval, mitigation measure or other measure imposed to implement said
regulations. The applicant shall be required to fund all costs associated with independent
peer review studies and reports commissioned by the Town of any information submitted
by the applicant, or the independent preparation of such information by the Town or its
consultants, and may be required to submit an advance deposit upon application to cover
such costs.
EXHIBIT NO. J.
1
16-7.3.
Time for Filinl! Application.
(a) The applicant shall apply for the Economic Exception as early as possible in
the process of obtaining land use approvals for the subject property, i.e., before or in
conjunction with the first land development application submitted for the property.
(b) Notwithstanding subsection 16-7.3(a), ifthe Planning Commission is the
decision-making body for the land development application and the applicant's Economic
Exception request is based on a condition of approval, mitigation measure or other
measure imposed by the Planning Commission, the applicant shall submit the application
for an Economic Exception within ten (10) days of the Planning Commission's action on
the land development application. The request for an Economic Exception shall be
submitted using the Town's regular appeal process for contesting zoning permit decisions
by the Planning Commission.
(c) If the Planning Commission acts on the land development application as an
advisory body and the applicant's Economic Exception request is based on a condition of
approval, mitigation measure or other measure recommended by the Planning
Commission, the applicant shall submit the request for an Economic Exception within ten
(10) days of the Planning Commission's making its recommendation on the merits of the
land development application. The Town Council shall consider the request for an
Economic Exception prior to taking action on the merits of the land development
application. . .
(d) If the request for Economic. Exception is based on a condition of approval,
mitigation measure or other measure first proposed at a meeting of the Town Council, the
applicant may submit the application for an Economic Exception within ten (10) days of
receiving constructive notice of said proposal.
16-7.4.
.Reauired Information.
(a) The applicant shall provide all of the following information:
1. The date the applicant purchased or otherwise acquired the property, and from
whom.
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6. Any change in the size of the property since the time the applicant acquired it,
including a discussion of the nature of the change, the circumstances and the relevant
dates.
7. A discussion of whether the applicant has sold or leased a portion of, or interest
in, the property since the time of purchase, indicating the relevant dates, sales prices,
rents, and nature ofthe portion or interests in the property that were sold or leased.
8. A title report for the property, and any litigation guarantees or similar
documents that affect or limit the use of all or a portion of the property, including copies
of relevant underlying documents referenced therein.
9. Any offers to buy all or a portion ofthe property which the applicant solicited
or received, including the approximat~ date of the offer and offered price.
10. The applicant's costs associated with the ownership of the property,
annualized for each ofthe last five (5) calendar years, including property taxes, property
assessments, debt service costs (such as mortgage and interest costs), and maintenance,
operation and management costs.
11. Apart from any rent received from the leasing of all or a portion of the
property, any income generated by the use of all or a portion of the property over the last
five (5) calendar years. If there is any such income to report it should be listed on an
annualized basis along with a description of the uses that generate or have generated such
mcome.
. 12. A written explanation as to why the application is necessary to avoid an
unconstitutional taking.
13. Any other information that the Director determines is required to analyze the
application.
(b) The foregoing information must be submitted within ten (10) days of submission
of the application for an Economic Exception.
16-7.5.
Economic Viability Determination~ Economic Exception.
(a) The Town Council will hold a public hearing on any application for an
Economic Exception. The Council shall grant an Economic Exception from strict
application ofthe Town's Land Use Regulations ifthe Council makes the following
findings:
(1) Based on the economic information provided by the applicant, as well as any
otherrelevant evidence, strict application ofthe Town's Land Use Regulations would not
provide an economically viable use of the applicant's property or would otherwise
constitute an unconstitutional taking of the applicant's property.
(2) The Economic Exception granted will result in a project which, to the
maximum extent possible while avoiding an unconstitutional taking, (a) complies with
the Town's General Plan and Zoning Ordinance; and, (ll) minimizes environmental
. damage.
3
(b) The Council's findings shall identify the evidence supporting the findings.
SECTION 2. SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this chapter is for any
reason held by a court of competent jurisdiction to be invalid, such decision shall not
affect the validity of the remaining portions of this chapter. The Town Council declares
that it would have passed this chapter and each section, subsection, sentence, clause and
phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or
phrases be declared invalid.
SECTION 3. EFFECTNE DATE.
This Ordinance shall take effect and be in force thirty days after the date of
passage, and before the expiration of fifteen (15) days after passage by the Town Council,
a copy of the ordinance shall be published with the names of the members voting for and
against it at least once in a newspaper of general circulation in the Town of Tiburon.
This ordinance was introduced at a regular meeting ofthe Town Council ofthe
Town of Tiburon on ,2005, and was adopted at meeting of the
Town Council ofthe Town of Tiburon on ,2005, which was noticed
pursuant to Government Code Section 65090, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
MILES BERGER, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK.
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Sample Economic Variance Ordinance <PRINTER-FRIE:i'-iQI..Y PA
Takings litigation can be expensive. One way in which public
agencies can limit the cost of litigation is to develop administrative procedures designed to re
appropriate resolutions to takings problems. An economic variance procedure provides publi,
agencies with a dispute resolution mechanism that limits their exposure to takings liability.
Variances allow public agencies to tailor a regulatory program to avoid an unjust result. A
variance will also protect against a "facial" takings claim, which occurs when a party argues tt
the terms of a regulation require an agency to perform an action that will amount to a taking 0
property. One of the basic tenets of takings law is that a regulation cannot be challenged if a
court does not know how far the regulation actually goes. Therefore the presence of a varian
which affords the agency the discretion to consider special circumstances, will automatically
defeat a facial challenge in most cases.
An economic variance procedure is specifically tailored to protect against claims that a regula
scheme denies all economically viable use of property. Since the law of takings is complex a
fact intensive, this procedure is designed to assure that all the facts of the case are presentee
the administrative level. This provides the opportunity for the agency to fully analyze the clair
before a suit is filed. Thus, if after reviewing the full record, the agency determines that the
regulation does indeed constitute a taking, it can either grant a variance or make arrangemen
to purchase the property. On the other hand, if the regulation does not constitute a taking, thl
ordinance assures that the administrative record will contain enough facts to enable the agen
to prevail at an earlier stage of litigation.
Sample Ordinance
1-1-100. Purpose.
The purpose ofthis variance procedure is assure that application of any ordinances or meaSL
that provide for the protection, maintenance, restoration and enhancement of wetlands and
environmentally sensitive habitat areas are adopted in a manner that treats property owners
fairly.
1-1-110. Application for economically viable use determination.
Any applicant that proposes a use other than one permitted that is based on the contention th
permitted uses do not provide an economically viable use of his or her property shall apply fOI
economic viability determination. The application for an economic viability determination shall
include the entirety of all parcels that are geographically contiguous and held by the applicant
common ownership at the time of the application.
1-1-120. Elements.
Before any application for a coastal development permit and economic viability determinatior
accepted for processing, the applicant shall provide all of the following information:
1. The date the applicant purchased or otherwise acquired the property, and from whom.
2. The purchase price paid by the applicant for the property.
EXmBITNO.3
. ../index.jsp?displaytype=ll &zone=ilsg§ion=land&sub _ se.
II
Institute for Local Self Government - Land Use & Housing
PageL Of3
;j. I he tair market value ot the property at the time the applicant acquired It, describing the ba
upon which the fair market value is derived, including any appraisals done at the time.
4. The general plan, zoning or similar land use designations applicable to the property at the 1
the applicant acquired it, as well as any changes to these designations that occurred after
acquisition.
5. Any development restrictions or other restrictions on use, other than government regulator
restrictions described in (d) above, that applied to the property at the time the applicant acquil
it, or which have been imposed after acquisition.
6. Any change in the size of the property since the time the applicant acquired it, including a
discussion of the nature of the change, the if circumstances and the relevant dates.
. 7. A discussion of whether the applicant has sold or leased a portion of, or interest in, the
property since the time of purchase, indicating the relevant dates, sales prices, rents, and nat
of the portion or interests in the property that were sold or leased.
8. Any title reports, litigation guarantees or similar documents in connection with all or a porti
of the property of which the applicant is aware.
9. Any offers to buy all or a portion of the property which the applicant solicited or received,
including the approximate date of the offer and offered price.
10. The applicant's costs associated with the ownership of the property, annualized for each c
the last five calendar years, including property taxes, property assessments, debt service cos
(such as mortgage and interest costs), and operation and management costs.
11. Apart from any rent received from the leasing of all or a portion of the property, any incom
generated by the use of all or a portion of the property over the last five calendar years. If thel
any such income to report it should be listed on an annualized basis along with a description I
the uses that generate or has generated such income.
1-1-130. Economically viable use determination.
The decision-making authority will hold a public he(lring on any application for an economicall
viable use determination. Such application for a development permit for a use other than the I
provided for under the agency's code will be approved if the decision-making authority makes
following findings:
1. Based on the economic information provided by the applicant, as well as any other relevar
evidence, each use provided for the affect parcel or parcels under the agency's general plan;
code would not provide an economically viable use of the applicant's property.
2. Restricting the use of the applicant's property to the uses provided for in the coastal
. conservation district would .interfere with the applicant's reasonable investment-backed
expectations. The findings adopted by the decision-making authority shall also identify the
evidence supporting the findings.
1-1-140. Economically Feasible, Less Damaging Alternatives.
Where the decision-making authority finds that the permitted uses would not provide an
economically viable use, and that restricting the use of the applicant's propertyJo these uses
would interfere with their reasonable investment backed expectations, the uses provided for il
the [reference a district or zone or alternatively, list accepted conditional uses] maybe allowe
a conditional use. A specific development proposal that accords with one of the accepted
conditional uses may be denied, however, if a feasible, less environmentally damaging
alternative also would provide the applicant with an economically viable use. Access through
wetlands or environmentally sensitive habitat areas to an area proposed for the conditional u~
shall only be allowed if necessary to provide an economically viable use of the overall
development plan area.
last updated. 12/9/
.. .Iindex.jsp?displaytype= 11 &zone=ilsg§ion=land&sub .-:.sec=land '-property&tert=land yr 5/25/2005
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LATE MAIL #.6...
1.
ZONING ORDINANCE TEXT AMENDMENT; FILE #Z2005-01; ADD
SECTION REGARDING ECONOMIC EXCEPTIONS TO ADDRESS
INSTANCES WHERE A "TAKING" OF PROPERTY IS ALLEGED BY
APPLICANT
Community Development Director Anderson reviewed the Staff report. He discussed
changes made to the resolution by the Town Attorney in the late mail received by the
Commission.
Chair Collins asked about Section 16-7 .3( a), which requires that Economic Exception
applications be filed "as early as possible." He questioned the impact of this clause.
Community Development Director Anderson responded he speculates this clause was
intended to apply to facial takings claims, in which case the Economic Exception
application would be submitted with the initial application.
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Chair Collins asked whether contiguous parcels under the same ownership would be
incl~de~ in the Economic Exception analysis, even if not part of the develop.ment tr.. .c;....
apphcatlon. tf: .
Community Development Director Anderson responded that he believed that they would'~"
ifthey had any material bearing on the property or the project.
Chair Collins stated that the list of materials to be submitted for the Economic Exception
does not include any information regarding the value of the proposed project. He asked if
development costs and sales information should also be included in the list.
Chair Collins also requested that copies of underlying documents be included with the
title report.
Commissioner Aguirre asked what sort of burden is put on applicant from the beginning,
as a result of the "as early as possible" clause. He asked ifthe study must be prepared
before there is any type of negative decision and if that means everyone must file [for an
Economic Exception] at day one.
Community Development Director Anderson responded this is not the intent, and unless
an applicant was making a facial takings claim; there would be no basis for filing until
the Town actually applied its land use regulations.
Commissioner Aguirre noted that proposed use helps determine fair market value and
value depends upon what the property is approved or denied for. It would be relevant to
get a handle on quantitative values such as the highest and best use, the project as
approved, and any increment of takings value. He concluded that a review of the list of
submittal items for application of an Economic Exception permit was warranted.
Tiburon Planning Commission
Minutes of June 8, 2005 (DRAFT)
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Chair Collins stated that Section 16-7.4(12), while seemingly asking applicant for a brief
explanation, appears to him to be asking for a legal opinion. This section should be
reviewed again by the Town Attorney.
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The public comment period was opened.
Jerry Riessen, Ridge Road, stated it is great this is being put forth and it is important that
it be done. It is the fair way for the applicant and the Town to get information in up front,
so all involved are dealing with good information rather than screaming and yelling about
a taking. This process establishes a basis for the takings issue. When information comes
in is not as important as whether there is enough time to process the information before a
decision is made. Information should be required with enough time to allow the Town
time to analyze it. He interviewed people who do economic exception analyses, although
he does not know the time frame typically necessary to complete an analysis. There
should be time for a public hearing to listen to experts and to respond, and an applicant
should expect to pay for the consultant's work on the economic exceptions analysis.
Riessen added that the Planning Commission should consider that "minimizing
environmental damage" is broad and suggested adding language to read "minimize
environmental damage and maximize to the extent feasible to protect ridges" to Section
16-7 .5( a)(2).
Commissioner Aguirre noted the General Plan takes a holistic view, and asked if one
element should be separately highlighted. If one complies with the General Plan, ridges
are taken into account.
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Mr. Riessen responded that if the economic analysis indicates there. must be more lots,
the phrase "minimizing environmental damage" allows them to be put anywhere.
Ridgeline locations for houses tend to be the most valuable, and he would recommend
guidance be given that any additional lots necessary to avoid a taking not be located on a
prominent ridge.
There being no further comments, the public comment period was closed.
Commissioner Aguirre asked if the General Plan states that protection of ridges is
priority.
Community Development Director Anderson responded that ridgelines are given highest
priority in the current General Plan, and that the Draft General Plan carries that protection
forward as well.
Commissioner Aguirre asked if Section 16-7.5(a)(2), as currently proposed, would not
achieve Mr. Riessen's goal, given that ridgelines are already given highest priority.
Comri:mnity Development Director Anderson responded that, given an option, the Town's
first choice would be to not allow additional lots on prominent ridgelines.
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Tiburon Planning Commission
Minutes of June 8, 2005 (DRAFT)
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Commissioner Aguirre asked what happens if there is no other way and a parcel would
have to put it on a ridge or there would be a taking.
Commissioner Fraser stated the General Plan provides guidelines. If a project is not
otherwise economically viable and has to be adjusted, and if this [Economic Exception] is
granted, then it trumps the General Plan and somebody must decide where additional lots
will go. .
Community Development Director Anderson noted that under the proposed ordinance,
the Town Council makes this decision, complying with the General Plan's policies to the
"maximum extent possible."
Commissioner Snow expressed support for adding the text regarding prominent ridges as
suggested by Mr. Riessen.
Community Development Director Anderson suggested that the Planning Commission
motion recommend "considering" this text addition, but that the resolution itself not be
modified until the Town Attorney is able to weigh in on the issue.
Commissioner Snow stated that this process should encourage applicants to take into
consideration different scenarios up front.
Commissioner Aguirre asked if this type of ordinance has increased the takings claims of
applicants in other jurisdictions where it has been adopted.
Community Development Director Anderson responded that the Economic Exception
process has not been legally tested. There is simply no case law to draw conclusions
from.
Chair Collins stated that ten days for the applicant to prepare the Economic Exception
information, and for the Town to prepare a response, is not enough time. He was
concerned about the tight time-frames established in the ordinance.
Commissioner Aguirre asked how applicant can respond to Section 16-7.5(a)(l2) up front
ifhe does not yet know the response of the Town.
Community Development Director Anderson stated applicant would be able to respond if
a facial takings claim was being made, but the application for Economic Exception would
not otherwise be submitted up front. Chair Collins asked if this distinction could
somehow be clarified in the ordinance.
There was a brief discussion regarding the procedural aspects of filing the Economic
Exception application.
It was the consensus of the Commission to include revisions regarding the list of
application materials, Town costs being borne by the applicant, and the late mail text
Tiburon Planning Commission
Minutes of June 8, 2005 (DRAFT)
3
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changes. Items for the Town Attorney and Town Council to consider during the Town
Council deliberations included clarification regarding the timing of the Economic
Exception application, whether additional information regarding value of the property
should be required from the applicant, and whether the additional text regarding
protection of prominent ridges should be added.
M/S Snow/Aguirre (passed 4-0) to adopt the resolution as revised and to forward the
additional comments from this hearing to the Town Council for consideration
during its deliberations.
Tiburon Planning Commission
Minutes of June 8, 2005 (DRAFT)
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