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Home My WebLink AboutTC Agd Pkt 2005-08-17 ~'..,3.~ "~v v TOWN OF TIBURON Town Council Chambers 1505 Tiburon Boulevard Tiburon, CA 94920 August 17, 2005 7:00 P.M.- Closed Session 7:30 P.M. - Regular 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.cUiburon.ca.us. 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 reql!est, 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 coLirt, 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. ~~.... Agenda - Town Council Meeting August17,2005 Page 2 of 4 AGENDA CLOSED SESSION CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Negotiator: MAPE Town Manager and Director of Administrative Services CONFERENCE WITH LEGAL COUNSEL - THREATENED LITIGATION (Section 54956.9(b)) Threatened litigation by County of Marin CALL TO ORDER AND ROLL CALL 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 beapproved 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 onthe Consent Calendar below, please do so now. 1. Approval of Town Council Minutes - August 3, 2005 2. Recommendation by Director of Administrative Services - Accept Town Monthly Investment Summary - July 2005 3. Report by Director of Public Works/Town Engineer - Lyford Cove Undergrounding of Utilities Assessment District Construction Bids 4, Recommendation by Associate Planner - Approve Application for Irrigation Well Permit Property Owner: Address: AssessorParcel No, Sharam Tajback 3 Francisco Vista 039-111-11 r v.. rJ1 ' Agenda - Town Council Meeting August 17, 2005 Page 3 of 4 5. Recommendation by Town Manager - Response to Marin County Grand Jury Report 6. Recommendation by Town Manager - Resolution in Support of Community United a) A Resolution of the Town Council of the Town of Tiburon Opposing the 2005-06 State Education Budget and Calling Upon Governor Schwarzenegger to Honor his Promise to Uphold Proposition 98 Funding for Schools 7. Recommendation by Director of Community Development - Parcel Map and Notification Agreement for 41 Main Street a) A Resolution of the Town Council of the Town of Tiburon . Approving a Parcel Map for the Condominiumization of a Mixed Use Commercial/Resident' Project Lo~ated at 41 Main Street And authorizing the Town Manager to Execute an Agreement With Respect to the Parking Leases Associated with the Property (Assessor Parcel No, 059-151-04) REGULAR AGENDA 8. Recommendation by Director of Public WorkslTown Engineer - Request by Landmark's Society to Relocate Gallows Frame Wheels to Shoreline Park Near the Donahue Building 9. Recommendation by Director of Community Development - Review of Martha Company Property Development Applications ' a) A Resolution of the Town Council of the Town of Tiburon Asserting its Right of First Review for Development Applications Associated with the Martha Company Property (Assessor Parcel No. 059-251-05) b) Appoint Town Council Ad Hoc Subcommittee to Review Applications PUBLIC HEARING 10. Recommendation by Planning Manager - Application to Amend Building Envelope; Round Hill Oaks Precise Development Plan Property Owners: Applicant: Address: Assessor Parcel No. ,Stephanie Cyr and Richard Donick Weir/Andrewson Associates, Inc. 10 Round Hill Terrace 058-301-42 a) A Resolution of the Town Council of the Town of Tiburon Approving an Amendment to the Round Hill Oaks Precise Development Plan (PD#36) for Property Located at 10 Round Hill Terrace (Assessor Parcel No. 058-301-42) r Agenda - Town Council Meeting August17,2005 Page 4 of 4 ~-r /'.. ~ '\ ' "\ 11, Report by Director of Public WorkslTown Engineer - Appeal of Encroachment Permit Conditions for Installation of Fence and Gate at 696 Hilary Drive Owner/Appellant: Address: Assessor Parcel No. Mark Gineris 696 Hilary Drive 055-212-04 . COUNCIL AND COMMITTEE REPORTS WRITTEN COMMUNICATIONS Town Council Weekly Digest - August 5, 2005 Town Council Weekly Digest ~ August 12, 2005 ADJOURNMENT FUTURE AGENDA ITEMS - Note: These items are tentative until thev aDDear on the final agenda . Adoption of Tiburon General Plan - (September 7) . Economic Exception Ordinance - (September 7) . Marin Commission on Aging Annual Report - (September 21) . Results of Community Telephone Customer Service Survey - (September 21) . Accept Street Rehabilitation Project as Complete . Award of Contract to Televise Storm Drains . Appeal of Planning Commission Denial of Conditional Use Permit Application for 2nd Story Banquet Facility Expansion Plan for Caprice Restaurant - (continued to October 5) . . . Lie tt~. ;()(), I TOWN COUNCIL MINUTES CALL TO ORDER Vice Mayor Smitli'calle(nli~:-tery"-'" ar meeting ofthe Tiburon Town Council to order at 7:30 p.m. on wedn,eicfay, August 3, 200,5, i Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California~~_ . ' -~"------,_..-.-"," ROLL CALL PRESENT: COUNCILMEMBERS: Fredericks, Gram, Slavitz, Smith ABSENT: COUNCILMEMBERS: Berger PRESENT: EX OFFICIO: Town Manager McIntyre, Town Attorney Danforth, Director of Community Development Anderson, Planning Manager Watrous, Director of Public Works/Town Engineer Echols, Chief of Police Odetto, Director of Administrative Services Bigall, Town Clerk Crane Iacopi Prior to the regular meeting, beginning at 6:30 p.m., the Council met in closed session to discuss the following matters: CLOSED SESSION CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Negotiator: MAPE Town Manager and Director of Administrative Services CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION (Section 54956.9(b)) Threatened litigation by Reed Union School District CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Section 54956.9(a)) Claim No. E200405A0326-00-se\3 7 AA404490 Town Council Minutes #18-2005 August 3, 2005 Page 1 ,,\ -;''';; Litigation Update: Fenster v. Town ofTiburon Bonander et al. v. Town ofTiburon Siciliano v. Town ofTiburon Town ofTiburon v. Sylvia Zimmerman v. Town ofTiburon . CONFERENCE WITH LEGAL COUNSEL - PENDING LITIGATION (Section 54956.9(b)) Case name withheld because disclosure would jeopardize existing settlement negotiations ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY Vice Mayor Smith said that no action was taken on the matters discussed in closed session. ORAL COMMUNICATIONS Mogens Bach, representing Pt. Tiburon Plaza, Inc., asked the Council for a continuance of Item No.4 onthe agenda (Appeal of Planning Commission denial of Application for Caprice Restaurant Expansion Plan). Vice Mayor Smith asked if the applicant would be willing to waive any time constraints [on their project] based on the Town's policy for scheduling appeals. . Mr. Bach answered affirmatively. Vice Mayor Smith asked for Council's comments. Counci1member Slavitz noted the number of people in the audience who were present to hear the appeal. Vice Mayor Smith commented that because the location was such a prominent site and the matter itself was controversial, it would be preferable to continue the item in order to have a full Council present. A member of the audience remarked that a lot of people had rearranged their schedules to be present this evening. He asked, if the Council would take testimony on the matter. Vice Mayor Smith said that it would not be appropriate to hear any public comment before Council heard the appeal. He apologized for the inconvenience to anyone in the audience if the item was continued. Town Council Minutes #18-2005 August 3, 2005 Page 2 . . . . ) Town Attorney Danforth recommended that a specific date be chosen for the continuance, particularly since the next two agendas seemed to be full already. Council discussed several dates and moved to continue the item until the regular meeting of Wednesday, October 5, 2005. Michael Heckmann, Joanne Norman, Bill Teiser and Michelle Scott, representing the two Rotary Clubs of the Tiburon Peninsula, presented a special DVD to the Council and Town officials. The DVD, a history of the town based on lectures by Town Historian Branwell Fanning, was produced by the clubs to mark Rotary's Centennial celebration. Mr. Heckmann also stated that the DVD was being made available to the local schools. Council thanked the Rotarians for their gift. PRESENT A TION . Heritage & Arts Commission Annual Report Chair Gotz gave the annual report. He also showed excerpts from a historical DVD he is producing on behalf ofthe commission regarding the history ofthe Lyford House. He remarked that his interest in the project had started when he realized that school~age children in the Tiburon peninsula are taught about the early settlers and the Mikwok Indians, but nothing past that time. , Council thanked Chair Gotz and the Commission for their continuing good work and many projebs in support of heritage preservation in the town. CONSENT CALENDAR 1. Approval of Town Council Minutes - July 13,2005 2. Approval of Town Council Minutes - July 20, 2005 3. Recommendation by Town Manager - City of Belvedere Special Event Permit Application for Labor Day Parade a) Authorize Street Closure b) Authorize Monetary Donation MOTION: Moved: Vote: . To approve Consent Calendar Item Nos. 1 through 3, above. Fredericks, seconded by Gram AYES: Fredericks, Gram, Smith Town Council Minutes #18-2005 August 3, 2005 Page 3 ABSTAIN: ABSENT: Slavitz, July 13 and July 20 minutes Berger . PUBLIC HEARING 4. Report by Planning Manager - Appeal of Planning Commission Denial of Conditional Use Permit Application for 2nd Story Banquet Facility Expansion Plan for Caprice Restaurant Applicant/Appellant: Pt. Tiburon Plaza, Inc. Address: 2000 Paradise Drive Assessor Parcel No. 059-172-46 Continued without hearing until October 5, 2005. COUNCIL AND COMMITTEE REPORTS Councilmember Fredericks asked whether links to homeowner's associations could be placed on the Town's website. Town Attorney Danforth commented that if the Town allowed links to some private organizations, it might be required to allow all requests for non-governmental links. Staff agreed to research subject further. . WRITTEN COMMUNICATIONS Town Council Weekly Digest - July 22,2005 Town Council Weekly Digest - July 29,2005 Town Manager McIntyre noted that a letter had been sent to the City of Belvedere requested their participation in funding (in the amount of $20,000) for the downtown art project. Council asked to be notified when the matter would be on the Belvedere City Council agenda. ADJOURNMENT . There being no further business before the Town Council of the Town ofTiburon, Vice Mayor Smith adjourned the meeting at 8:15 p.m., to the next regular meeting scheduled for August 17, 2005. PAUL SMITH, VICE MAYOR Town Council Minutes #18-2005 August 3, 2005 Page 4 . . . . ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town Council Minutes #18-2005 August 3, 2005 Page 5 . Town of Tiburoll STAFF REPORT AGENDA ITEM :2 TO: Mayor and Members of the Town Council FROM: Heidi Bigal!, Director of Administrative Services SUBJECT: Monthly Investment Summary - July 2005 ~. , MEETING DATE: August 17, 2005 REVIEWED BY: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -. . .. .. . TOWN OF TIBURON Institution/Agency Investment Amount Interest Rate Maturity State of California Local Agency $15,373,259.80 3.083% Liquid Investment Fund (LAIF) Bank of America Other Total Invested: $15,373,259.80 . TIBURON REDEVELOPMENT AGENCY I nstitution/ Agency Investment Amount Interest Rate Maturity \ State of California Local Agency $931,333.14 3.083% Liquid Investment Fund (LAIF) - Bank of America Other Total Invested: $931,333.14 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 .next month's estimated expenditures. 0.- ;J . Town of Tiburon STAFF REPORT AGENDA ITEM ~ TO: Mayor and Members of the Town Council FROM: Pat Echols, Director of Public Works! Town Engineer Lyford Cove Rule 20B Utility Undergrounding ~nt District Project Bid Results . MEETING DATE: August 17, 2005 REVIEWED BY: SUBJECT: DISCUSSION On Tuesday, July 2th, construction contract b ids were 0 pened for t he Lyford Cove Utility Undergrounding District project; two bids were received, The low bid was submitted by Maggiora & Ghilotti, Inc. in the base amount of $3,957,176 and the second bid was submitted by Golden State Utility Co, in the base amount of $4,460,927, The District Engineer's estimate included in the bid package was $2,525,000. Based on the magnitude of the low bid, both bids will be rejected, The District Engineer and Town staff solicited feedback from planholders and bidders in an . effort to determine the factors contributing to the low number of bidders and the two high bids submitted. While there are a number of factors, the primary factor appears to be that engineering contractors are extremely busy at the present time due to the great number of active construction projects in the Bay Area, Also, given the large scale and complexity of the Lyford Cove project, many planholders could not identify or commit the necessary resources to carry out the work in accordance with the project timeline specifications and therefore elected not to bid. Those that submitted bids adjusted their bid prices upward to reflect uncertainties associated with schedule, off-pavement manual labor and landscape restoration. Staff met with the District Engineer (Harris & Associates) representatives and the District proponents to discuss potential bid modifications that could significantly reduce bid prices. Based on contractor feedback, it appears that re-bidding the project later this year (October or November) will likely attract more bidders and more competitive bid prices since contractors are typically not nearly as busy over the winter months. Other possible modifications are included in the attached memorandum from Harris & Associates. RECOMMENDATION It is recommended that the Town Council authorize rejection of all bi9s received for the Lyford Cove Rule 20B Utility Undergrounding Assessment District and authorize staff to restructure the bid package as noted above. EXHIBITS 1. Memorandum from Harris & Associates . August 12, 2005 1 of 1 r;'^ 't,!J . . . EXHIBIT NO. I II I Harris & Associates Melllorandum to: Pat Echols, Town ofTiburon from: Mike Cooper re: Lyford Cove Utility Undergrounding District date: August 2, 2005 cc: Rocco Colicchia, Garry Lee, Russ Moore, Joan Cox This memo is to summarize information gathered from contractors regarding their bids received for the Lyford project and recommendations for action henceforth. We have spoken to representatives of the contractors that bid the project as well as to contractors that did not bid the job, but took out plans and expressed interest in bidding, At this point, we recommend rejecting all bids and rebidding the project. The following are comments received that seem relevant to the high bids, Additionally, we have made suggestions to answer some of these concerns in ways that should reduce the cost of the project: · Length of construction is too short and raises concerns about the potential for liquidated damage charges. \Contractor included costs to allow for liquidated damages in his bid. Change the time of construction to 250 working days. Reduce liquidated damages charge to S1000/day. · The start of construction in the fall is a problem with other work in progress, Rebid in mid September and allow a 60 day bid period with bids due after the construction season has slowed in mid November. This will allow construction to begin in January, weather permitting. · The Town limit on length of trench allowed to remain plated overnight limits production, Extend length of trench allowed to be plated overnight to 150 feet continuous in anyone location. · Availability during bidding of electronic files for the bid schedules would have made bidding easier, Provide electronic files of Bid Schedule. '. Some contractors are more interested in constructing mainline work within the streets rather than service conversions. The same subcontractor was shown for constructing the service conversions for both of the general contractors that bid the project. The contractor said the number of bid items was cumbersome to the bid process, Separate the bid into two packages, one for assessment district work and one for private service conversions. · Uncertainty over allowed traffic detours and/or street closures, This does seem legitimate in predicting the contractor's production, which impacts his bid prices. Specify a performance based Traffic Control Plan. Hold a mandatory pre-bid conference with prospective bidders to clarify expectations regarding detours and road closures. 120 Mason Circle Concord, California 94520 (925) 827-4900 FAX (925) 827-4982 concord@harris-assoc.com Admin _Templates _ MemoLogo&Address. dot · Staging and material disposal. Look carefully at any potential disposal sites that contractor could place and compact the excess trench spoils. Also, determine possible locations for staging and material storage sites closer to the project. · Construction hours. Consider extending construction hours to improve contractors efficiency, subject to City Coun.cil approval. Include as an alternate bid item a cost reduction for extended working hours. · Concern for service locations requiring extra costs to restore surfaces, where a slight adjustment in location could save costs. Include in the bid documents the fact that service locations may be adjusted, with the approval of PG&E. · The bid prices for landscape restoration as a part of the service conversion work are extremely high, likely because of the uncertainty of the scope of work required to please the property owners. Delete landscape restoration from the contract and have property owners hire their own landscape contractors. Additionally, other items discussed with Town staff have included several factors that may have no potential solutions; higher cost of materials in Marin, concerns for the tightness of the work area and neighbor involvement. The only suggestions here are to make it very clear that Town staff will be serving as the Project Coordinator with the property owners and will try to address property owner concerns that may arise during construction, 120 Mason Circle Concord, California 94520 (925) 827-4900 FAX (925) 827-4982 concord@harris-assoc.com Admin _Templates _ MemoLogo&Address. dot '\ -, . . . /~ . . . Town ofTiburon STAFF REPORT AGENDA ITEM 4 . . . . . . . . . . . . . . . . . . . . ., . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL FROM: KRISTIN KRASNOVE, ASSOCIATE PLANNER 3 FRANCISCO VISTA; FILE #W05-03 REVIEW OF A WELL PERMIT APPLICATION FOR THE DRILLING OF A WELL FOR THE PURPOSES OF IRRIGATION. SUBJECT: MEETING DATE: AUGUST 17, 2005 REVIEWED BY: AM . . . . . . . . .. ........................................ PROJECT DATA: OWNER! APPLICANT: WELL DRILLER: ADDRESS: ASSESSOR PARCEL NUMBER: FILE NUMBER: ZONING: GENERAL PLAN: FLOOD ZONE: DATE COMPLETE: SHARAM T AJBACK FORSTER PUMP AND ENGINEERING 3 FRANCISCO VISTA 039-111-11 W05-03 RO-2 (SINGLE-FAMILY RESIDENTIAL OPEN) M (MEDIUM DENSITY RESIDENTIAL) C JULY 28, 2005 PROPOSAL: The applicant has submitted a request to drill a well on the property at 3 Francisco Vista for the purposes of landscape irrigation. The well would be located on the north side of the driveway to the left of the side yard stairs. 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. ANAL YSIS: In reviewing well permit applications, the Town must ensure that the proposal is incompliance 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 Staff Report 10f 2 8/17/05 Town of Tiburon STAFF REPORT . Based on the submitted materials, it appears that the granting of the permit will not be detrime.ntal to the public health; safety or welfare, nor injurious to other properties in the vicinity.' ' Based onthe 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 DETERMINA TION: 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. Itis 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 8/17/05 2of2 (.? . . . I,", 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 3 FRANCISCO VISTA ASSESSOR PARCEL NUMBER 039-111-11 WHEREAS, the Town Council of the Town of Tiburon does resolve as follows: Section 1. Findinos. -' A. An application for drilling of an irrigation water well has been submitted by the property owner of 3 Francisco Vista. 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 3 'Francisco Vista 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 of the 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 Town Council Resolution-DRAFT - Well Permit at 3 Francisco Vista 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. 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 T own of Tiburon. 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 August 17, 2005, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE L. CRANE, TOWN CLERK S:\Planning\Staff Folders\kkrasnove\Resolutions\3 Francisco Vista WelI.RES.doc Town Council Resolution-DRAFT - Well Permit at 3 Francisco Vista f'~ 4-... \ . . . [1;t . i . /: '. '.;,:' 1/'" I 1 I / /. / / / J I, I' \ ~I Mo\ ~ ~i;J [N o ~ ~ .J <r ~~ Sd) ~~ 1l.? .\,\2"'\)..; u.: "''''';-l' ",,,,,,,,,'~ ., <tl ". " ""'''I '" 0 ~,,,,~, l / l.O o ,=, ~ <::;i"' or- Zz 00 ~.~.. OJ:: <9u.. ZO zZ 33 "'0 cr\- . .~ I ~=' =::'J -J .. .f) I :' ,<I / 'JZ ~-":'J"'~ :.. 1~ .. /~ Zz.,- . / < . '< . "/' <"~'i ./ .,r( ,~,/ .:/ ; '( <~? " / .. ~ f . 1:// . ~~/ 'J'2;1 I !, I j. ~( /~i "~ ,I ,S d,; , ~i, ~i ;gi ." -'<"':' ';',':' ~. . ~\ l' '11 ..) .~. ~. ,',. ~"'" . . - . '5,,~ "'"\.)~.::i~ ~. ,J~ '1' d:~ . ;S.~ "l:' ... \j 4:1 ~ :: ;i: ~ r: '>- ~ i'. ~. { .L ,c ~ '.- ~> ~~. ~. '0<( :ii~ ~~ ~ / I;' I. j '" // ~ / / i1 o I~ ;i ;; ,V r> q if ,/ .J ,I / ,,!,I .<> "/: , .. , \ ! I i / ~ :.../" ....' '-c' 'I ; ~ 4 ,:./ ,'I r J .J 1/ 1 // , I /- ~/ c'/ j ;f .' I j-.. '-:" . ......~... C\. c:z ':J. 2\ U' ~, \- ~- \ : 1. \ }. '..' ,j ! o ' :! ...1.~~ .:J J ",. 3 c. --~"""'--'-- '$' .....; .~, ,"'- ,.t't --, ,. i \ 2:' , , -' ~ ,. '" .. \ -. '" n" .:{-_. ?o~'_-:-~'~-':': ~ , -- -- -~ -~- \ -- \ " \ j ; i i ',,- i I i I I I I i .[ I I \ \ t,.... - ".-- :.;.~::~. . -' \ \ 1\ ,/ " Page 10f 3 , '7 'JfH)5 " . LUU LATE MAIL # 'I Scott Anderson P' Al\ji'.]'f't(;, 11i\l:C:;inN =rovvN (oF T!B~UFio!~ From: Chester Judah, Jr. [hottubistani@sbcglobal.net) Sent: Wednesday, August 17, 20052:16 PM To: Mayor, Miles Berger; Vice Mayor, Paul Smith; Council member Tom Gram; Councilmember Jeff Slavitz; Alice Fredericks Cc: Kristin Krasnove; Scott Anderson; Kathy Rose Subject: Agenda ItemA, Tiburon Town Council Public Meeting, August 17, 2005, application for the construction of an irrigation well permit at 3 Francisco Vista Town of Tiburon Council Members, Before you this evening will be the aforementioned subject. I received notice of same yesterday in which I was advised to file written comments with the Community Development Department on or before last Friday which is impossible. I am neither a parliamentarian, a geologist, nor a hydrologist. I am only the neighbor most proximate to the site of this proposed well. I was never advised by the applicant, my neighbor, of this application. I am not sure what my rights are before you this evening and am appalled at how late and deficient the notification process has been. However, in order to create a record and protect what legal rights and recourse I may have, I am sending this email to you now. As I read the relevant sections of the Town of Tiburon Municipal Code, the following findings must be made in order to approve the application. IIILEIYLAN])lMPRQYEMENTAND.:US.E Chapter 13F WATER WELL CONSTRUCTION AND USE 13F-5 Findings for approval. (a) In order to approve an application for well permit, the council shall make the following findings: (1) The owner is currently prevented from connecting to the water district's system due to a moratorium. (Note: This finding applies to potable water wells only); (2) The owner has provided a written opinion from a geologist, hydrologist or other qualified person that the water supply of the well will remain reasonably intact during drought periods. (Note: This finding applies to potable water wells only); (3) The granting of the permit will not be detrimental to the public health, safety or welfare, nor injurious to other properties in the vicinity. (Ord. No. 392 N.S., 9 2 (part)) In submitting her recommendation that the Council approve the application, Kristin Krasnove, Associate Planner, states'the following in the Town of Tiburon Staff Report submitted to you; "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." 8/17/2005 Page 2 of3 .' As best as I can determine, the "submitted materials", consists ofa letter from Stephen R. Korbay, Consulting Engineering Geologist, dated June 20, 2005. In that letter, Mr. Korbay states that; "The purpose of this evaluation is satisfy the concerns of the Town of Tiburon regarding possible effects, if any, that the new well may have on other wells in the vicinity, as stated under Item B in the Town's Submittal Requirements for Wells." In fact, Item B in the Town's Submittal Requirements for Wells does not restrict itself to "other wells in the vicinity." What it says is; "Report prepared by geologist, hydrologist or other qualified person regarding possible effects, if any, on adjoining properties." In . other words, the "submitted materials" restricts itself to the effect this proposed well will have on other wells in the vicinity. However, Mr. Korbay goes on to say that; "My review of water well records on file at the County Environmental Health Services Department did not show water wells in the neighborhood or within a lOOO-foot radius from the Tajback residence." In other words, the "submitted materials" say that the proposed well will have no effect on other wells in the vicinity of which there are none. On the basis of this submission, Kristin Krasnove states 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. To me, this is grossly insufficient information to make such a statement. In the State of California Department of Real Estate, Disclosures in Real Property Transactions (bttP.:I/:w~w.gIe,Ga~gQYldi$GJQ~mre$,htm) no mention is made about a seller notifying a buyer that a adjacent well may have some effect on a well on the property for sale. However, the seller must disclose the following; 7. .Any settling from any cause, or slippage, sliding, or other soil problems ...............,.........,...................,...............:.......... _Yes No Slippage is and has been a significant factor in the properties surrounding 3 Francisco Vista and the effects of a well on the same has not been addressed. Let me take you on a very short tour up A venida Miraflores, the street above Francisco Vista, and recite a little history. i, 150 A venida M'iraflores: The builder of 3 Francisco Vista, as part of the construction of same, built a retaining wall along the downhill side of this residence in response to concerns expressed by its inhabits about slippage of their hillside. ii. 166 Avenida Miraflores: Over the years, and particularly during the construction of3 Francisco Vista and the working ofthe soil that it entailed, cracks have appeared in walls, and during the annual change of the moisture in the underlying soil doors swing freely or not. And when tress are felled on this property, stumps and roots can not be extricated for doing so may contribute to land slippage. iii. 168 Avenida Miraflores: About thirty years ago, slippage of the soil under this house necessitated the drilling down to bedrock and construction of piles in a significant project that took about a year to complete. iv.. 170 Avenida Miraflores: This house too has had cracks appear over the years and as the underlying soil changes from wet to dry the doors too swing freely or not. I assure you that the files ofthe Planning Division and the Building Division ofthe Town of Tiburon are stuffed with documentation of the above.and the staff of the Planning Division, especially at the supervisorial level, should be aware of this. And I would also add that the Engineering Geologist did not address this matter in the letter upon which Ms. Krasnove makes her recommendation for he stated therein that; "No subsurface exploration was performed for this evaluation." 8/1712005 Page 30f3 ,( As I said at the beginning, I am not a geologist nor a hydrologist, but I do live in a house that moves as the moisture of the underlying soil changes. And, the land on either side of me has been documented to have shifted. Other than that I have no knowledge one way or the other if the extrication of water by a well, at what appears to be on an industrial scale, and its deposit in another area for the purpose of irrigation would or would not be injurious to other properties in the vicinity. The burden of proof lies on the applicant to show that it doesn't and create a record for legal recourse if it does, and the Town Council should expect no less before deciding to approve or deny this application. That this proposed well will have no effect on wells in the vicinity, of which there are none, is insufficient grounds to consider this application much less grant its approval. Chester Judah,Jr. 166 A venida Miraflores Tiburon, Ca 94920 8/17/2005 I ! ~ ..... ...... ..-.. ." ....y Marin County Civil Grand Jury June 9, 2005 Tiburon Town Council Attention: Miles Berger 1505 Tiburon Blvd. Tiburon, CA 94920 , Re: Grand Jury Report: The Bloated Retirement Plans of Marin County, Its Cities and Towns Honorable City Council Members: ....". EXHIBIT NO. I ,- . RECEIVED JUN 1 0 2005 TOWN MANAGERS OFFICE TOWN OF TIBURON Enclosed is the report of the 2004-2005 Marin County Civil Grand Jury: "The Bloated Retirement Plans of Marin County, Its Cities and Towns (Revised)". This report supersedes and replaces the similarly titled report issued earlier. Please destroy all copies of the earlier report. Because of the receipt of ambiguous information regarding the retirement benefits of the San Rafael Firefighters, inaccurate information was included in Figure 1 (and the description of Figure 1), Table 2B, and Table 3. The corrections have been made and result in a simple modification to Finding 1. The conclusions of the report and the requirements for response are unchanged. Sincerely, -#~ J. Patrick Burke Foreman, Marin County Civil Grand Jury . 3501 Civic Center Drive, Room 303, San Rafael, CA 94903 Tel 415--499--6132 . ~~.. ..' -," -, . . . Town of Tiburon .-/ !J STAFF REPORT AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . TO: Mayor and Members of the Town con . Alex D. Mclntyre,o Town Manager ~ Response to Marin County Civil Grand Jury Report FROM: SUBJECT: MEETING DATE: August 17, 2005 . I . . I . . . . .1 . . . . . I . . I . .1 . . . . . . .. . . . . . . . . . . . .. . . BACKGROUND Annually, the Marin County Civil Grand Jury publishes its report and requires affected parties to respond to any findings and recommendations made by the Civil Grand Jury that affect them. Typically, gc;>vernment agencies find themselves a topic for the Civil Grand Jury investigations. This year, all public agencies in the County have been investigated as it relates to our pension .programs. Attached, you will find the Civil Grand Jury Report (Exhibit 1) focusing on public agency pension plans. Tiburon is required to respond. We have drafted our response as Exhibit 2. It is important to note that in the Civil Grand Jury's investigation, Tiburon finds itself only marginally impacted by the probe. As you know, we have been quite careful in managing our pension and retiree health programs. RECOMMENA TION It is recommended that the Town Council approve the draft Civil Grand Jury response. EXHIBITS Exhibit 1 - Marin County Civil Grand Jury Report Exhibit 2 - Draft Civil Grand Jury Response . . . 2004-2005 MARIN COUNTY CIVIL GRAND JURY The Bloated Retirement Plans of Marin County, Its Cities and Towns (Revised) Date of Report: May 9,2005 . Reports issued by the Civil Grand Jury do not identify individuals interviewed.. Penal Code Section 929 requires that reports of the Grand Jury not contain the name of any person, or facts leading to the identity of any person who provides information to the Civil Grand Jury. The California State Legislature has stated that it intends the provisions of Penal Code Section 929 prohibiting disclosure of witness identities to encourage full candor in testimony in Civil Grand Jury investigations by rotectin the privac and confidentiali of those who artici ate in an Civil Grand J investi ation. The Bloated Retirement Plans of Marin County, Its Cities and Towns SUMMARY The 2004-2005 Marin County Civil Grand Jury (Grand Jury) became concerned about retirement benefits (i.e., pensions plus retiree healthcare) after the Board of Supervisors received substantial criticism in newspapers for increasing pension benefits. The Grand Jury found that Marin County (the County) and its cities and towns (Municipalities) provide pension plans to their employees that are many times more generous than similar plans found in the private sector. The volatility of the cost ofthese pensions has caused extreme stress on the budgets of many of these entities. Despite this, there is an inexorable push from unions, through the state legislature, to continue increasing pension levels. Such large benefit levels do not seem justified by the argument that they are needed for hiring and retention of employees. Irrespective of whether the level of total compensation (salary plus benefits) is right or wrong, the mix (between salary and benefits) seems wrong in that far too much emphasis is placed on retirement benefits. In the matter of retiree healthcare, the Grand Jury has found that the County and the Municipalities are facing an imminent requirement to include retiree health care obligations on their balance sheets. However, the Grand Jury found no evidence that these local governments understand the extent ofthese obligations, nor have they begun the,process ofilllderstanding their retiree health care promises, of valuing their retiree health care obligations, and of dealing with them. This is especially troubling in the case of the County and some of the Municipalities where the obligations will apparently be very large, even as much as hundreds of millions of dollars in the case of the County. The 2004-2005 Grand Jury recommends that the County and the Municipalities take the following actions: . Sponsor pension reforms, including rolling back pension levels to historical, lower levels for new hires. . Provide lower level pensions in favor of forms of compensation whose employer costs are less volatile. . Work with plan administrators to establish more stable funding methods for pensions. . Stop spending temporary found (i.e., unanticipated) money on recurring obligations. . Lobby the unions to act responsibly and lobby the legislature to stop legislating plans that undermine public employers' abilities to control the structure of compensation. . Rethink compensation strategy with a goal of sponsoring systemic (i.e., statewide) changes. . Sponsor programs to help employees understand their retirement, so they can take an active role in their retirement planning. . Request that the California Public Employees' Retirement System (CaIPERS) actuaries (and, in the case ofthe County and the City of San Rafael, the MCERA actuary) do a May 9, 2005 , Marin County Civil Grand Jury Page 1 of 31 . . . , ;' . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns better job of explaining pension and retiree healthcare changes and issues to policymakers. . Perform retiree healthcare valuations in the very near future. . Make knowledgeable decisions, sooner rather than later, about retiree healthcare promises. BACKGROUND In mid-2004, the Marin County Board of Superviso~ (Board of Supervisors) approved, through union negotiations, a series of pension changes for County employees. The pension changes generated so much questioning from the public that members of the Board of Supervisors responded, as reported in several articles in the Marin Independent Journal (IJ) in the ensuing months. Later in 2004, the Grand Jury read reports in the IJ that one ofthe towns of Marin was having substantial difficulty in fmalizing its FY 2004-2005 budget. Escalating pension cost was cited as one of the primary reasons that the budget could not be completed on a timely basis. Subsequently, a reviewofthe fmancial statements ofth,e Marin County Employees' Retirement Association (MCERA) indicated that MCERA expended nearly $7 million for retiree healthcare and life insurance benefits, an amount approximating 13% of the total amount spent on pensions. Since healthcare costs have been escalating materially in recent years, the Grand Jury wondered to what extent retiree healthcare costs. could be exerting pressure on the County's and its Municipalities' budgets. . Thus, a number of questions had raised the interest ofthe Grand Jury to explore the County's retirement benefits as well as those of the Municipalities. INVESllGA liVE PROCESS The Grand Jury interviewed representatives of the County, including representatives of M CERA, members of the Board of Supervisors, representatives from several of Mann's Municipalities, several consulting actuaries, and requested information from representatives of CalPERS. The Grand Jury reviewed information from MCERA, each of Marin's Municipalities, CalPERS, nrunerous newspaperartic1es on pensions and health care for retirees, the 2004 Annual Report of the Board of Trustees of the Federal Old-Age and Survivors Insurance and Disability Insurance Trust Funds (i.e., The 2004 Annual Social Security Report), the County Employees' Retirement Law of 1937 (1937 Act), and material from the Employee Benefits Research Institute (EBRl). . The Grand Jury conducted Internet searches on CalPERS for pension cost requirements of Marin's Municipalities, Government Accounting Standards Board (GASB) for healthcare of retirees, and Social Security for on-line benefit calculators. For more detail on the information considered by the Grand Jury, refer to the Bibliography at the end of this report. May 9. 2005 Marin County Civil Grand Jury Page 2 of 31 The Bloated Retirement Plans of Marin County. Its Cities and Towns For definitions ofterms used in this report, please see the Glossary following this report. DISCUSSION . In the public sector, pensions provide substantially greater retirement benefits than do comparable plans found in the private sector. When times are bad, these greater benefits in the public sector generate tremendous pressure on budgets, as often pension costs go up when revenues go down. Despite the pressure, there are unrelenting on-going demands to expand public sector pensions. Furthermore, the pressure is exacerbated by an additional hidden pension- like benefit - retiree healthcare. Retireehealthcare benefits representtrue costs, often substantial, that have been largely ignored. This should change in the next few years when impending accounting standards bring retiree healthcare obligations to light. Comparison of Pension Levels in the Private Sector and Public Sector In the public sector, employers usually provide pensions using a standard type of formula expressed as a percent of pay (i.e., the benefit factor) for each year of service, multiplied by the employee's final average pay, payable at a stipulated retirement age. For example, commencing at age 55, under a common public sector plan, a retiree might be provided with 2% of his fmal average pay for each year of service. Under such a plan aretiree with 30 years of service could retire at 55 with a benefit of 60% of final pay. The Grand Jury would like to have compared the level of pensions provided in the public sector directly with the corresponding levels in the private sector but there are a number of reasons why it is difficult to make this comparison. The most important reason is that private sector employees are covered by Social Security, so Social Security benefits must be included in any comparison of pension levels to make the comparison valid. Nearly all public sector employees considered in this report (i.e., County employees and employees of the Municipalities) are not covered by Social Security (at least not for employment with their Marin public sector employer). Additionally, it is common for pension plans in the private sector to take a partial credit for Social Security benefits. This reduces the level of private sector pensions. . The Grand Jury asked a number of consulting actuaries to give their estimates of the level of benefits provided by pension plans in the private sector in order to provide an assessment of the effect of the factors indicated above. These consulting actuaries were asked to carry out their assessments only with respect to major employers, because such employers were considered to be more comparable to public sector employers than smaller employers. Their results suggest that the average benefit factor in the private sector (including Social Security) could be 2.1 % per year. This pertains to age 63 retirements for a 5-year final-average pay plan with no cost-of- living adjustment (COLA), except for the Social Security portion. Although this "average" plan pertains to only about ha1fthe employers, it still provides a basis of comparison, and, ifanything, probably overstates the value of private sector retirement benefits. Details of these estimates are shown in Appendix A. It is this "average" plan (i.e., 2.1 % of 5-year final-average pay, retirement at age 63 and partial COLA) that will be used as the basis of comparison with the plans offered by the County and its Municipalities. This "average" plan is used only by an estimated half ofthe major employers; the May 9. 2005 Marin County Civil Grand Jury Page 3 of 31 . ';, .. . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns other half provide different types of pensions, e.g.; the cash balance pension, or even no pension, all of which have lower benefitS than the "average" plan (see Appendix A for details). The value of public sector pensions can be viewed, on an over-simplified basis, with respect to the benefit factor, the retirement age at which full benefits are payable, the number of years over which final pay is averaged, and the COLA. In nearly all cases, public sector plans are more valuable than private sector plans because (i) the benefit factor is. higher, (ii) the retirement age for full benefits is lower, (iii) the number of years over which final pay is averaged is shorter and (iv) a COLA is provided. Several consulting actuaries were asked to give relative values of these provisions of public sector pensions compared to the "average" plan. The results indicate that the values ofthe public sector pensions ranges from 2 times to over 4 times the value of the "average" private sector pension (including Social Security), a staggering difference. Figure 1 shows the contrast of the . "average" pension in the private sector to miscellaneous plans (i.e., plans provided to public sector employees other than law enforcement arid fire protection personnel) provided by the County and its Municipalities. Figure 1 - Miscellaneous Plan Values Relative to "Average" Private ~ Plan c 350% III a: 300% "CD OJ I! 250% Gl > ~ 200% Gl oS 150% - 0 100% CD OJ J! 50% c CD u .. 0% CD lL 1-.'1>~ ~~ ~ &'1> ",0 .' \>'. .~ 0 '1> '1>'" bt/f b0" ~ ~0 ~'1> <Q0 ~0 cP ..L ~ ;;\ 0 <;, 0 _~ 0 ~ k'1>' ,:> ~0 if n9<;' ~ !!:/r ~ .~o ~' ~<;,~ ~'li 0'" ,- ~<;,0 ~'1i J?u -<.~v << ,,~.# ~ ~"?' c:>'1>~ c:>'1i c:>'1i As indicated in Figure I, the miscellaneous plans provided by the County and its Municipalities range from being about 2 times to 3 ~ times richer than the "average" plan. The safety plans provided by the County and the Municipalities (Le., plans provided to law enforcement and fire protection personnel in the public sector) range from 2 11 times to 4 times . richer than the average plan, as shown in Figure 2. May 9, 2005 Marin County Civil Grand Jury page 4 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns Figure 2- Safety Plan Values Relative to the "Average" Private Plan . ~rj-S' ?f'\0 ~lb> .tF ~<:J..s. ..::.~04, ~# ~o4' ~~O r>~~ ~<(~0 r>2tV0 <(~0 ,$-O~ ~ ~ ~ ~,~ ~ ~ ~ .# ~ ~ ~ 0' 0 ,,'Ii ~ ~"?' ~~0 ~tiY' ;# ~'Ii <Q Cpl::l C;;'Ii ~'lf '/}~ '/}-S> C;;'lf C;;~ C;; C;; Public sector pensions require employee contributions, ranging from 7% to 10% of pay for miscellaneous plans and from 9% to over 13% for safety plans. On the surface, this would seem to compare to the private sector wherein employees have to contribute about 6% of their pay for Social Security benefits, plus additional amounts to employer sponsored savings plans. In the public sector, however, employers are permitted to pick up some or all of the required employee contributions to their pension plans, meaning that the employer, not the employee, actually pays the contribution. It also means that the amount the employee pays toward retirement is reduced. . The County and its Municipalities have different bargaining agreements for the amounts employees contribute. For the most part, however, the employers pick up half or more ofthe . employee contributions. . The Volatile Costs of Public Sector Plans Representatives from several of Marin's Municipalities indicated that the entities they represent are under financial stress. They pointed to shortfalls in funding from the State as a primary cause, adding that pressure induced by increased benefit costs was also a major contributor. For those Municipalities in which benefit costs caused great stress on budgets, increased pension costs were cited as a major component of the problem. The levels of pension plan costs as a percentage of payroll over the last three fiscal years (FY 2002-2003 through FY 2004-2005) and the forthcoming fiscal year (FY 2005-2006) have increased dramatically. Figure 3 illustrates the dramatic increases in the costs of miscellaneous pension plans of the COUlity and its Municipalities. These increases, which went from an average of about 2% of miscellaneous payroll in FY 02-03 to 15% of miscellaneous payroll just 3 years later, came at the worst possible time, i.e., a time when revenues were falling. More details on these costs can be found in Appendix B. . May 9, 2005 Marin County Civil Grand Jury Page 5 of 31 . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns Figure 3 .. Pension Costs (Mise Employees) . ... O>rte Madera Larkspur IlJclVata Sausalita San Anselmo -.- FYE 02-03 _ FYE 03-04 _ FYE 04-05 -+- FYE 05-0sl Figure 4 illustrates corresponding increases in pension costs for safety plans. Figure 4.. Pension Costs (Safety Employees) 45% 40% 35% e 30% i;' 25% Q. .... 20% 0 -.t. 15% 10% 5% 0% Marin . O>rte Madera San Anselmo Sausalita Larkspur Novata -.- FYE02-03 - FYE03-04 _ FYE04-05 -+- FYE05-0SI May 9, 2005 Marin County Civil Grand Jury Page 6 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns For these plans, the increases went from an average of 5% of safety payroll in FY 02-03 to 30% just three years later. . . In addition to stressing the budgets of the County and its Municipalities, the escalation of pension costs has put pressure on the California Employees' Retirement System (CaIPERS) to deal with the extreme cost fluctuations. CalPERS has attempted to stabilize pension costs, but the events of the past few years have shown that their methods have not worked. Ironically, pension costs have actually risen dramatically at the precise time that employers could least afford them, namely at a time when they were under stress from diminished sources of revenue. CaIPERS, in a September 2004 seminar entitled "Addressing Employer Rate Fluctuation," acknowledged the problem and indicated that it did not have a solution. While the seminar dealt with a number of possible ways to stabilize pension costs, it also produced anumber of exhibits that looked at forecasts of cost levels for several plans over the next 20 years. These forecasts raise issues of concern: . For state miscellaneous employees, the forecasts indicated that cost levels could be about 3% of payroll provided favorable long-term investment results were achieved. Conversely, the cost levels for the same plan could ultimately become 40% of payroll if the long-term investment results were unfavorable. . The results are even more sobering for safety plans. For the California Highway Patrol plan (a safety plan), the forecasts showed that the cost levels could quickly become 0% of payroll if long-term investment results were favorable. On the other hand, the costs could ultimately become about 65% of payroll if the long-term investment results were unfavorable. CalPERS chose to illustrate those possible outcomes as extreme~; however, the County and its Municipalities have multiple plans in place that could reflect the extremes in pension costs described at the CalPERS seminar. . Clearly, if the County and its Municipalities provided pension plans that were not so generous, their exposure to this type of cost uncertainty would be reduced. Not all Municipalities indicated that they were under the same level of financial stress. In fact, our interviews indicated that the Municipalities fell into two groups. The first group had been able to balance their budgets with relative ease because: . They had established long-term budget forecasts that reflected pension costs under favorable as well as unfavorable times (i.e., sensitivity analyses). Therefore, these Municipalities ensured that they had sufficient revenue sources to enable them to continue to pay for their pensions even if their financial situation deteriorated. . They continued to pay the employee contribution to the pension plan even though pension law would have allowed them to forego paying these contributions. Thus, such Municipalities retained the discipline of making pension contributions even though they could have foregone them. May 9, 2005 Marin County Civil Grand Jury Page 7 of 31 . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns. . They took a long-term view (i.e., forecasts) of the costs of potential pension increases, rather than taking a short-term look. Thus, they were able to see the long-term cost impact of pension increases on their budgets. . They viewed reduced pension costs ofthe type that occurred in the early years ofthe 20th century as being temporary not permanent. Thus, they viewed the benefit of the reduced pension costs as found money that could and should be spent only on one-time projects or be committed to building of reserves rather than being used to increase entitlements. The second group of Municipalities had substantial difficulty in balancing their budgets. Among the pension-related reasons for their problems were: . They viewed reduced pension costs as an opportunity to improve pension benefits, ignoring both the long-term implications of the increased pensions and the possibility that unfavorable financial times could arise. . They relied on cost estimates from their actuaries who failed to provide adequate forecasting of results and failed to show the sensitivity of pension plan costs to both favorable and unfavorable results of investments. . They viewed reduced pension costs, often reduced to zero, not as temporary but as permanent recurring budget windfalls. They then committed the money for long-term expenditures such as substantial capital improvements that would require an on-going source of revenue. . They committed no money to reserves and retained no discipline in regard to the making of pension contributions. Municipalities that fall into this second group have had to reduce services, layoff staff, continue to operate on a short-hand~d basis, and defer making capital improvements. The County resembles the first group of Municipalities, with additional factors at play. For instance, the County is more reliant. on property taxes, whereas the Municipalities tend to rely more on sales taxes. From this standpoint, the County's revenue soUrces have been more reliable. This does not, however, explain the anomaly of how the County's pension costs were relatively flat while pension costs from the Municipalities have increased substantially (see Figures 3 and 4). This was caused, at least in part, by the execution of a Pension Obligation Bond (POB). The County's pension plan had an unfunded obligation. At the end of FY2002-2003, when the County executed its POB, this unfunded obligation was nearly $1 10 million. The issuer of the POB gave the County an amount equal to this unfunded obligation which was deposited in the pension plan trust. Because the plan assets were increased by the amount ofthe unfunded obligation, the unfunded obligation became zero, as did the part of the pension plan cost attributable to the unfunded obligation. The County's actuary estimated the amount needed to service the original unfunded obligation was approximately 3% of miscellaneous payroll plus 7% of safety payroll. Thus, the County's contribution to the pension plan was significantly reduced because of the POB, even though the County still had to service the debt onthe POR The structured payments of the POB debt service, however, are designed to be less than the amounts May 9, 2005 Marin County Civil Grand Jury Page 8 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns , ) the County otherwise would have had to contribute over time to the pension plan to payoff the unfunded liability. . Because the County was able to issue the POB at an interest rate (4.9%) that is lower than the actuarially assumed rate used to pay off the unfunded liability (8.25%), the amount the County has to pay annually for debt service for the POB is less than the amount that it ordinarily would . have had to pay for the plan's unfunded liability. In effect, the County has refinanced its unfunded pension liability, paying it off at 4.9% instead of 8.25%. What is left out in the examination of pension plan costs for the County is the cost of debt service for the POB. That amount, approximately 3% of pay, should be added to the County pension plan costs for FY2004~2005 and beyond~ Pressure to Increase Pension Levels Even though public sector pensions have been seen to be materially richer than pensions provided in the private sector, there is continuing pressure to provide even mot:e pension increases. A number ofinterviewees, after saying how happy they wereto have a public sector pension, described the process as operating in these steps: . Unions representing public sector employees lobby the legislature. . The legislature enacts legislation enabling CalPERS (the entity that provides plans to all Municipalities other than San Rafael) and MCERA (the entity which, under the 1937 Act, provides pensions to the County and San Rafael) to provide more generous benefits. . Some government entity or entities (e.g., the State, a county, or a city) will adopt the more generous pension benefits. . . Public sector entities proximate to the entity with the more generous benefits now fmd themselves at a competitive disadvantage to attract and retain employees and will then feel the need to pass along the more generous benefits to its employees, as well Thus, the more generous benefits spread throughout the state. The pressure to increase pensions appears to be constant. However, the ability to increase pensions is augmented in good times, such as those that existed in the late 1990s. At that time, following a decade long run-up of assets, pension plans were substantially funded in contrast to more recent years. This drove pension costs down, reducing stress on budgets. Many public sector entities then felt secure in offering increases in pensions. In fact, in the late 1990s, legislation enabled "superfunded" plans to transfer employer assets to cover employee contributions. Moreover, Ca1PERS plans were labeled as being "superfunded," and according to several of our interviewees, the long-term contribution rates for,the "superfunded" plans were represented to be iero for several years. Many public sector entities took advantage ofthis "found" money (which turned out to be temporary) to make pension improvements that had added long-term costs. To be fair to CalPERS, many interviewees indicated that CalPERS did not sell the "superfunded" status ofthe plans as proof that the zero cost would last in perpetuity. In some situations, public sector entities require that their employees actually pay for the pension improvement. The employees do so, in theory, by foregoing a portion of their prospective pay increases. This trade-off is determined when Ca1PERS actuaries (for the entities that CalPERS May 9, 2005 Marin County Civil Grand Jury Page 9 of 31 r . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns represents) and the actuaries of the non-CalPERS plans (e.g., MCERA for the County and for San Rafael) determine how much the richer benefits would cost. When employees, through their unions, are able to barterricher pension benefits for a portion of their pay increases, interesting things happen. . First, the added pension benefit cost lasts for years, while the foregone pay increase may or may not be reversed in subsequent negotiations. . Second, there is a transfer in compensation values to employees near retirement from younger (or fu~re) employees. Some interviewees portrayed the windfall inherent in this transfer of compensation. This can be illustrated by a hypothetical example of an employee who will have 20 years of service at age 50 and will earn $50,000 in the last year of employment. The example also assumes that the employee will live to age 80 and ignores any benefits that might be payable to dependents. The employee, who is 48 and could retire with full benefits at 50, benefits from a pension increase wherein the benefit factor is increased from 2.5% per year of service to 3% per year of service. The plan actuary indicated that this pension increase would cost 5% of pay. The public sector entity and the unions then agree to barter a seemingly equivalent 5% pay increase for the pension mcrease. Under the original pen~;ion formula, the employee would get a benefit equal to $25,000 per year (2.5~ per year, multiplied by 20 years, multiplied by $50,000). Under the increased pension formula, the employee would now get a benefit equal to $30,000 per year (3% per year, multiplied by 20 years, multiplied by $50,000). Thus, by foregoing a total of $5,000 in salary (two years multiplied by 5% of $50,000), the employee would receive an annual increase from the pension in the amount of $5,000 per year. This increased amount is payable fOT the 30 years that the employee lives after retirement, $150,000 in total, which amounts to a 30 to I return. Meanwhile, someone has to pay for the $150,000 in added benefits that the employee will receive. This amount is paid out of future budgets, and will largely be included in the costs of compensation of younger or future employees. (Note: this illustration was simplified to make a point. If the employee were to receive a pay increase instead of a pension increase, then the original pension would be higher than illustrated. On the other hand, COLAs were not illustrated. The effect of COLAs would favor the employee with the increased pension.) In addition to this type of windfall situation, several interviewees pointed to another situation that they characterized as scandalous or outrageous. This is the disability pension for safety employees which was given as another example oflegis1ation that was generated from pressure by the unions. The legislation stipulated certain health conditions as being disabilities, whether or not they would truly make the individual disabled. Thus a safety employee who would not ordinarily be thought of as being disabled could be entitled to the favorable disability pension, even when such an employee could be physically able to take a second job. In the public sector, the ethic to promote pension increases, as well as to promote favorable, pension interpretations regarding disability pensions, stands in vivid contrast to that found in the private sector. Many interviewees indicated that a public sector pension is "vested for life," meaning that once an employee is hired for a public sector job, unless the benefit level is May 9, 2005 . Marin County Civil Grand Jury Page 10 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns bartered away in later negotiations, the employee gets a lifetime guarantee of the level of pension . benefits in place at time of hire. The employer does not have the ability to reduce the benefit level in the future. On the other hand, in the private sector, the employer can unilaterally reduce or eliminate future pension increases, so long as the benefits earned to the date of the reduction are preserved. In the past 10-15 years, largely owing to changes in pension law and a desire to better control benefits costs, many private sector employers have reduced pensions, often by changing the type of plan to a cash balance plan or by reducing or eliminating the existing pension plan. In fact, because the costs of defined contribution plans are much easier for employers to control, the incidence of defined contribution plans, primarily 401(k) plans, has escalated substantially. Earlier, we indicated that Social Security was a central part ofthe pension promise in the private sector. In the general population, often exclusive of the public sector, it is common to see reductions in the Social Security promise. Examples include: increase of the Social Security retirement age, change in the Social Security benefit formula with the effect of reducing its level in the future, and taxation of Social Security benefits. Additionally, the employee contribution schedule for Social Security has been raised periodically over the years. These types of pension changes do not happen in public sector plans. Public Sector Pensions and Compensation Policy The argument is often made that retirement benefits in the public sector are large, and the quid pro quo is that salary levels are small. It is not the intent of this report to examine that statement. , In the course ofthe investigation, however, the Grand Jury did come upon three items that are on point: . . An informal study of a dozen public sector positions compared to similar private sector positions showed that the public sector paid more about half the time. . A top level County employee indicated that, except for top executive positions, public sector salary levels were competitive with private sector salary levels. . Information from EBRI indicates that public sector salary levels are materially higher than private sector salary levels when small employers are used in the comparison. Public sector salary levels, however, are approximately equal to those in the private sector when only larger employers are considered. The intent ofthis report is to examine policies that provide exceptionally large pensions, regardless of salary levels. To this end, a number of questions were posed regarding compensation (i.e., salary plus benefits) in the public sector: The following discussion provides a synopsis of the answers received. Pension levels, particularly using 3% formulae, ' can generate pensions that equal 90% of pay. Such full pensions can become payable at the earliest possible retirement ages. When asked about these benefit levels, the consulting actuaries each said that lower benefit levels would be sufficient to maintain pre-retirement income: an 80% level would be sufficient for employees earning in the range of $30,000 to $40,000, and a 50% level for employees earning over $100,000. May 9.2005 Marin County Civil Grand Jury Page 11 of 31 . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns One of the consulting actuaries interviewed noted that the 3% formulae and retirement at age 50 were pension elements that had evolved over time. Historically, the typical pension formulae were 2% at age 60 for miscellaneous employees and 2% at age 50 for safety employees. The interviewee went on to say that although the retirement age of 50 for safety employees was appropriate at the time the pension formula was developed, a later age (e.g., 55) might be more appropriate now. The Grand Jury found a divergence of opinion in regard to the existing compensation miX, which provides high pension levels ostensibly with low salary levels. Some members of the Grand Jury had theorized that younger employees, who need the money for the front-end expenses of living (e.g., to buy a house, to raise a family, and to pay the expense of schooling), are poorly served by the mix. Some interviewees indicated that the compensation mix was appropriate because it provided an adequate retirement income. However, they agreed that the compensation mix obviated the need for personal savings and personal involvement in structuring retirement. The interviewees went on to say that there were doubts as to whether employees would do a particularly good job in managing their own retirements. Other interviewees stated that the compensation mix would make it difficult to attract young employees. In Marin, in particular, the price of housing and overall cost ofliving suggest that, especially for younger employees, the balance should shift more to salary, and less to benefits. However, these interviewees went on to state, that changing the compensation mix would not be workable because changing the mix would have a deleterious effect on hiring and retaining employees. The interviewees referred to the process described above in which the legislature enacts laws enabling pension increases. Subsequently, the increases are adopted by some entities thus putting pressure on other entities to adopt similar increases to keep their benefits competitive. With reciprocity prevalent in public sector pensions, it is relatively easy for employees to switch their public sector employment to other public sector entities that have superior benefits. The interviewees said that it would be impractical for them to change their compensation mix to favor salary instead of benefits unless there was a systemic (i.e., statewide) change. The reason is that, absent a systemic change, they would lose good employees to other public sector entities with superior benefits. Several interviewees acknowledged that having pensions that permit retirement with full benefits as early as age 50 could cause good employees to leave. However, these sameinterviewees noted that many employees in these positions actually didn't want to leave but wanted to continue their employment. At the same time, the interviewees acknowledged that employees who leave . employment at this early age are not "washed up," and often obtain other jobs while simultaneously receiving their pensions. Pension Reform In California There has been considerable interest in reforming public sector pensions in California. This ranges from changes that had been advocated by the Governor to those suggested by various interest groups. Among the options being suggested are: . Maintain pension plans as the centerpiece of public sector retirement. Such plans should permit career-employees to maintain living standards after retirement. May 9. 2005 Marin County Civil Grand Jury Page 12 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns . Establish formula caps for public safety and miscellaneous employees. The suggestions noted are 2% at 50 for safety and 2% at 60 for miscellaneous. . Require that the final salary used in the pension calculation be the average of the last three year's salary, as a minimum. . No longer allow pension improvements (ofthe type illustrated on page 10 of this report) to increase the pension attributed to past service. The improvement would pertain to future service only. . Rollback/repeal public sector retirement plans that provide benefits in excess ofthose required to maintain living standards after retirement. Excess benefits would be determined using existing income replacement benefit studies. . Develop and implement new actuarial methods to stabilize pension cost levels over time. Establish reserve funding to smooth out fluctuations. . , Change the provisions of disability pensions to restrict benefits if an employee continues to work (or is able to do so) at a similar job after taking disability retirement. . 'Require that surplus pension earnings (i.e., temporary found money) be used to payoff unfunded liabilities, POB debt, and pay for benefits already in place. Such earnings would not be allowed as the basis for pension improvements. . Do not allow retirement boards and arbiters to have the authority to grant pension increases. . For the most part, suggested reforms that pertain to pension levels would apply only to future hires. Thus, for current employees, many of the problems that have been created in the past would be allowed to continue. Nevertheless, some combination of the reforms would allow the problems to be dealt with prospectively. Moreover, frameworks couid be moved into place that would allow (and maybe require) the appropriate officials to make well-informed decisions that are fair for their employees and sensible for the entities that they represent. . Retiree Healthcare (the Other Pension) The County and each of its eleven Municipalities provide a second important retirement benefit for their retirees, healthcare. This benefit has striking parallels to pensions, effectively making it another pension: . The benefit is earned when the employee is actively at work. The payment ofthe benefit is contingent upon the employee actually retiring from the service ofthe employer. . The benefit is provided subsequent to the employee's retirement. . The benefit is typically provided for the lifetime of the retiree. . The benefit is typically provided also to the surviving spouse of the retiree. . As is the case with public sector pensions, which have annual cost-of-living increases, the cost of retiree healthcare benefits typically increases each year as the cost of health care rises. May 9. 2005 Marin County Civil Grand Jury Page 13 of 31 . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns On the other hand, there are a number of differences between pensions and retiree healthcare benefits: ' . The retiree will typically have to pay a portion of the cost of retiree healthcare, i.e., the . retiree contribution. . While the pension benefit is largely funded by the employer (and, to a certain extent, by the employee before retirement), retiree health care is essentially unfunded before the employee's retirement. This means that the cost of retiree healthcare is, for the most part, borne by the succeeding generation( s) of employees. . While pensions are largely regulated and ensconced in law, the extent oflegislation and regulation on retiree health care is much less. This has caused retiree health care benefits to be poorly understood by employers, especially in the public sector. ' . While pensions are subject to accounting standards, in the public sector this has been untrue for retiree health care benefits. In the private sector the advent of accounting standards for retiree healthcare is responsible for a substantial decrease of those benefits. The County and each of its eleven Municipalities provide some level of retiree healthcare benefits to its retired employees. The Grand Jury, through information requests and subsequent follow up telephone calls, requested information on the retiree hea1thcare plans. Unlike pensions where reliable consistent information is routinely available, the Grand Jury found information on retiree health care hard to obtain for a variety of reasons: . The County and its Municipalities provided several retiree healthcare plans. For the most part, differences in the plans are characterized by multiple levels of employer contributions. . The provisions of an entity's retiree healthcare plans are often provided in Memoranda of Understanding (MOUs). The provisions typically change from year to year and, unlike pensions, are enumerated in a variety of ways. . Information submitted on retiree health care, was varied and inconsistent from entity to entity. . Contacts designated to supply follow up information at several Municipalities often had a limited understanding of their retiree healthcare promises, In a retiree healthcare plan, the employer makes available a number of health care plans to the retired employee. The employee then can select among the plans and, if applicable, can elect to provide coverage for eligible dependents. The employer commitment, to which the GASB , - accounting standards apply, is typically expressed in one of two ways: . The employer promises to pay a certain dollar amount toward retiree healthcare coverage. , Often the dollar amount will increase annually, under the provisions ofthe relevant MOU. . The employer promises to pay an amount equal to the cost of a certain specified coverage (e.g., the cost of Kaiser for the retiree only, or the cost of Kaiser for the retiree and May 9, 2005 Marin County Civil Grand JUI)' Page 140f 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns spouse). Under this approach, the employer's commitment can automatically increase from year to year. . Employers can be separated (imprecisely) into three groups: those with substantial commitments, those with medium commitments, and those with modest commitments. Membership of the groups was determined by the way each employer expressed its financial commitment, as shown in Table 1. Table 1 - Retiree Healthcare Benefits Commitments Entity Retiree Healthcare Characteristic of Retiree Healthcare Benefit Benefit Commitment County, Corte Madera, Substantial Employer pays cost of benefit for retiree and Larkspur, Mill Valley, spouse, or dollar value of promise is $350/month San Rafael or more San Anselmo, Sausalito, Medium Employer pays cost of benefit for retiree only, or Tiburon dollar value of promise is $200-$350/month Belvedere, Fairfax, Novato, Modest Employer pays $48.50/month, scheduled to Ross increase to $97/month in 2008 (minimum for CalPERS Plans) Ca1PERS' retiree healthcare plans are provided to all Municipalities except Mill Valley which offers different retiree healthcare choices. The County provides retirees with the same choices that are provided to its active employees. In many cases, the value of the retiree healthcare promise (shown above) is decreased when length of service requirements are imposed on the employee before full benefits become payable. . In both the private and public sectors, the pension obligation is calculated annually by the actuary and is monitored closely because the employer contribution is subject to change (often substantially) when the pension obligation changes. In the private sector, an employer's healthcare obligation for retirees is also monitored closely because it impacts financial statements. This is markedly different in the public sector (including the County and each of its Municipalities) where the absence of accounting requirements has led to avoidance of valuation of retiree healthcare obligations. Knowledge of retiree hea1thcare obligations could have a large effect on an employer. In the early 1990s, when Financial Accounting Standards required that these obligations go onto the books of employers in the private sector, many things happened: . Before the effective date of the Financial Accounting Standards, major employers with retiree health care plans performed actuarial valuations of their plans and then modeled the impact of the plans on their financial statements. . Many employers were reportedly extremely surprised (occasionally astonished) by the magnitude of their retiree healthcare obligations, which were often in the hundreds of millions of dollars for large-sized employers or for medium-sized employers with rich plans. They were also extremely surprised by projections of increasing future benefit costs. May 9, 2005 Marin County Civil Grand Jury Page 15 of 31 . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns . Many employers with substantial retiree health care obligations then took steps to reduce those obligations. The steps included: increasing retiree contributions, changing the approach to Medicare coordination, increasing the requirements for benefit eligibility, eliminating some or all benefits for future hires, and eliminating some or all benefits for active employees. ' A parallel series of events is beginning to occur in the public sector. For entities with revenues of $100 million or more, Government Accounting Standards will come into effect for fiscal years beginning after December 15,2005 (later for smaller entities). For those fiscal years, the public sector entities' financial statements, and the financial statements oftheir plans, will need to include an obligation for retiree healthcare benefits. It would have been useful to have valuations already completed so the County and the Municipalities could assess the prospective impact of the imminent Government Accounting Standards, but valuations have not been completed. With this in mind, the Grand Jury, as part of the interviews with consulting actuaries, inquired about methodology to obtain broad estimates of the retiree healthcare obligations of the County. The methodology provided was used to obtain rough estimates that were corroborated in comparisons with retiree healthcare estimates found on the Internet and in presentations on Government Accounting Standards. This methodology is detailed inAppendix C. " The Grand Jury's estimate of the obligations for the County's retiree healthcare plans is necessarily broad. Nevertheless, it is reasonable to expect the obligations to be between $150 million to $300 million. This range relates to a current year pay-as-you-go cost to the County of approximately $7 million. Under the presumption that this is a realistic range, the County has a significant retiree healthcare obligation that will soon be~ome a part of its financial statements. This obligation, at the estimated level, represents 45% to 90% of the FY2004-2005 budget. Of greater significance is the fact that none of the County officials interviewed had any indication of the magnitude of the obligation. The best that could be said is that an unpublished report on this topic, dated 1998, was discovered by one of the interviewees. With respectto the Municipalities, the retiree healthcare obligations will depend upon the benefit level and the size of the workforce. The Grand Jury has not estimated the obligations for any Municipality, nor does it appear that the Municipalities are going to get any help in this regard from CalPERS which is the administrator of retiree healthcare benefits for all Municipalities other than Mill Valley. Furthermore, CalPERS has not performed valuations of retiree health care obligations and may not do so because of difficulties in data collection. What all this means is that; like the Gounty, Marin's Municipalities will be faced with the prospect of adding an obligation of unknown magnitude to their financial statements. May 9, 2005 Marin County Civil Grand Jury Page 16 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns FINDINGS F 1. Public sector pensions are substantially more valuable than private sector pensions. For Miscellaneous employees in Marin, pensions are 2 to 3 14 times as valuable as private sector pensions; for safety employees, they are 2 11 to 4 times as valuable. F2. Most public sector employees in Marin do not participate in Social Security and thus contribute less (no Social Security taxes) to their retirement than do employees in the private sector. F3. The employers' costs for public sector pensions in Marin are extremely volatile, causing financial stress to the County and its Municipalities. Average pension costs for miscellaneous plans for the County and its Municipalities increased from 2% of miscellaneous payroll in FY2002-2003 to 15% in FY2005-2006. For safety plans, the increase was from 5% of safety payroll in FY 2002-2003 to 30% in FY 2005-2006. F4. The County issued a Pension Obligation Bond (POB) to transfer the unfunded liability of its pension plan (about $110 million) offthe pension books at the end of FY2003-2004. For future years, this reduced the County's contribution to its pension plan; however, to make a fair evaluation of County pension costs, the cost of debt service of the POB (about 3% of payroll) should be counted. ' F5. Despite extremely high pension levels and the fmancial stress that increases in pension costs bring upon public sector budgets, there is continuous pressure to incieasepublic sector pensions. Unions apply this pressure on the legislature which then enacts legislation enabling pension increases to proliferate throughout the state. F6. Once pension increases are adopted by a public sector employer, they cannot be rescinded without a bargained compensatory improvement in some other element of compensation. This contrasts vividly to the private sector wherein reductions in the future promises, in either pensions or Social Security, are common. ' F7. 'Unless systemic (i.e., statewide) changes are made, the employers' abilities to attract and retain good employees would be undermined. Extremely large pensions, coupled with allegedly lower salary levels, impact hiring and retention. However, changing the mix, to increase salaries while decreasing pensions, would be harmful to public sector employers. F8. A number of reasonable pension reform proposals have been developed, and/or are being developed, to deal with the problems of public sector pensions. F9. . In addition to pensions, the County and its Municipalities maintain retiree healthcare plans for their employees. Although these plans share many characteristics with pensions, unlike the case with pensions, neither the County nor any of its Municipalities have been required to include retiree hea1thcare obligations on their financial statements. FIO. Imminent changes required by GASB will require that public sector entities include retiree healthcare obligations on their books. In the private sector, similar Financial Accounting Standards already have caused many employers to discover substantial unknown obligations and, in many cases, to reduce those obligations by cutting retiree , healthcare benefits. May 9, 2005 Marin County Civil Grand Jury Page 17 of31 . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns . F 11. Neither the County nor its Municipalities have any idea of the size of its retiree healthcare obligations. The Grand Jury has roughly estimated the County's obligations as ranging from $ I 50 million to $300 million. RECOMMENDATIONS , The 2004-2005 Grand Jury recommends that the County and its Municipalities take the following actions: Sponsor pension reforms, including rolling back pension levels to historical, lower levels for new hires. Provide lower level pensions in favor of forms of compensation whose employer costs are less volatile. Work with plan administrators, in most cases CaIPERS, to establish more stable funding models for pensions. Stop spending found money, which is temporary, on recurring obligations. Lobby the unions to act responsibly and lobby the legislature to stop legislating plans that undermine public employers' abilities to control the structure of compensation. Rethink compensation strategy with a goal of sponsoring systemic (i.e., statewide) changes (including changes in disability retirement). Sponsor programs to help employees understand their retirement, so they can take an active role in their retirement planning. Request that Ca1PERS' actuaries (and, in the case ofthe County and the City of San Rafael, the MCERA actuary) do a more thorough job of explaining pension and retiree healthcare changes and issues to policymakers. Make sure that the explanations of costs of any changes in either ofthese areas, include both sensitivity analysis (i.e., cost ranges that show what happens if either favorable or unfavorable experience is obtained prospectively) and forecasting (i.e., long-term, rather than single-year, cost estimates). R9. Perform retiree healthcare valuations in the near future to ascertain the financial impact of the impending GASB standards. ' RIO. Make knowledgeable decisions, sooner rather than later, about retiree healthcare promises. Rl. R2. R3. R4. RS. R6. R7. . R8. . REQUEST FOR RESPONSES Pursuant to Penal code section 933.05,the grand jury requests responses as follows: . From the Board of Supervisors - FI-FIl and RI-RIO. . From the City/Town Council and City/Town Manager of each of Marin's 11 Municipalities (from each) - FI-F3, F5-Fll and RI-RlO. . From MCERA Board of Directors - FI-F2, F4, F8-F9, Fll and RI-R2, R7-RlO. , May 9, 2005 Marin County Civil Grand Jury .. Page 18 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns . From each union that bargains benefits with the County and the Municipalities: FI-F3, F5-FIO and RS-R7. . GLOSSARY Casb balance plan - A cash balance plan is a pension that defines the pension promise in terms that are more characteristic of a defined contribution plan. The promise is defined in terms of a stated account balance. For example, an employee's account may be credited with a salary credit (such as 5% of salary each year) and an interest credit (at either a fixed or variable rate each year). In this way, unlike defmed coritributionplans, changes in the plan's assets, through good or poor investment experience, do not directly impact the benefit promise. Instead, good or poor investment experience impacts the employer's contribution, as it does for a pension. At retirement, the retired employee's benefit is based upon the employee's account. COLA - A cost ofliving.adjustment, COLA, is a provision of a pension whereby the annual pension increases by a specified amount each year. The amount is typically a fixed percentage , (e.g., 2%), although the amount maybe pegged to a consumer price index (CPI) increase. Compensation - Compensation means the total of the employee's salary and benefits. Benefits include deferred benefits such as pensions and retiree healthcare. Defined contribution plan - A defined contribution plan, in contrast to pensions (as defined below), does not promise a specific amount of benefits at retirement. In defmed contribution 'plans, the employer andlorthe employee contributes to the employee's individual account. The contribution rate is established by the plan and may be subject to some discretion by the employer, the employee, or both. The contributions are invested on behalf of the employee. The employee will eventually receive the value of the account, which is based upon the contributions and investment gains (or losses). The value of the employee's individual account will fluctuate based upon the plan's investment experience. Examples of defined contribution plans include 401(k) plans in the private sector and 457 plans in the public sector. . Pensions ~ A pension is a promise to provide a specified monthly benefit at retirement. For the . purpose of this investigation, the pension is calculated based upon factors tbat include the benefit factor, salary, and service. For example, the annual pension could be equal to two percent (the benefit factor) of final salary for each year of service. These types of pensions, which are common in the public sector, are also called defined benefit pensions. POB - Pension obligation bond (POB) is an arrangement whereby a public sector entity borrows an amount often equal to the unfunded liability ofthe pension. The employer then pays that amount into the pension plan, eliminating its unfunded obligation and the need to fund the unfunded obligation through pension costs. The employer does, however, have to repay the indebtedness of the amount borrowed. Typically, the interest rate on the amount borrowed is less than the interest rate charged on the unfunded liability. Thus, the repayment of indebtedness can be (and is) structured in a way to make payments on the indebtedness less than would be required to pay the cost of the unfunded obligation. In the long-term, the POB lowers the cost to the public sector employer only if the interest rate on the POB is less than the amounts earned by May 9; 2005 Marin County Civil Grand Jury Page 19 of 31 . . './ . .. The Bloated Retirement Plans of Marin County, Its Cities and Towns the pension plan on the amount borrowed (including a margin to pay the expenses of issuing the POB). Private sector - Non-government entities. For the purpose of this investigation, attention has been focused on large private sector employers because those employers tend to have retirement plans and issues that are more closely aligned with the public sector than do smaller private sector employers. Public sector - Government entities such as the Federal government, state government, and local govermrient. For the purpose of this investigation attention has been limited to plans of local government, i.e., the County, its Municipalities, but not special districts within the County. Reciprocity - Reciprocity is the policy, under state law, designed to encourage public sector employees to move freely from one public sector entity to another. Under reciprocity, if an employee makes such a move, the employee's pension benefits under the pension of the first entity will be based upon salaries earned at the second entity. Salaries earned at the second entity are typically higher than salaries earned at the first entity. Thus, the employee's pension at the first entity grows after the employee has left the service of the first entity. Retiree healthcare - The retiree healthcare benefit is a promise to provide health care benefits at retirement. The common retiree healthcare benefit provided is a promise by the employer to pay either a certain dollar amount toward the retiree's healthcare premium (e.g., the employer will pay $200 per month toward the retiree's healthcare premium) or the retiree healthcarepremium itself (e.g., the employer will pay an amount equal to the Kaiser single party rate ). Retirement benefits - Benefits provided to retired employees. Such benefits typically require that the employee has achieved a designated minimum age before commencement of benefits and that the employee has a designated number of years of service with the employer to be entitled to benefits. For the purpose of this investigation, only pensions and retiree healthcare are the retirement benefits considered. May 9, 2005 Marin County Civil Grand Jury Page 20 of 31 The Bloated Retirement Plans of Marin County, Its C"lties and Towns BIBLIOGRAPHY . From the Municipalities: . Plan booklets for pension benefits and retiree healthcare benefits, and MODs regarding pensions and/or retiree healthcare benefits . Most recent pension actuarial report and/or financial statement (note: these were subsequently requested and received from CalPERS as many Municipalities could not supply their plans' reports) . Most recent actuarial report and/or financial statement and/or monthly insuranceIHMO premium. statement (including employee and retiree contribution payment). From MCERA: . Annual report of Marin County Employees' Retirement Association, June 30, 2003 . Marin County Employees' Retirement Association, City of San Rafael Annual Actuarial Valuation, June 30, 2002 . Marin County Employees' Retirement Association, City of San Rafael AnnualActuarial Valuation, June 30, 2003 . Marin County Employees' Retirement Association, City of San Rafael Annual Actuarial Valuation, June 30, 2004 . Marin County Employees' Retirement Association, Novato Fire Protection District Annual Actuarial Valuation,. June 30,2003 . Marin County Employees' Retirement Association and Special Districts Annual Actuarial Valuation, June 30, 2002 . Marin County Employees' Retirement Association and Special Districts Annual Actuarial Valuation, June 30, 2003 . Marin County Employees' Retirement Association and Special Districts Annual . Actuarial Valuation, June 30, 2004 . Marin County Employees' Retirement Association Retiree Handbook . Marin County Employees' Retirement Association Retirement Plan (booklet). . From CalPERS . Actuarial Valuation as ofJune 30, 2003, The Miscellaneous Plan ofthe City of Belvedere (Employer# 1046) . Actuarial Valuation as of June 30, 2003, The Safety Plan ofthe City of Belvedere (Emp1oyer# 1046) . Actuarial Valuation as of June 30,2003, The Miscellaneous Plan ofthe Town of Corte Madera (Employer# 534) May 9, 2005 Marin County Civil Grand Jury Page 21 of 31 . The Bloated Retirement Plans of Marin County, Its Cities and Towns . . Actuarial Valuation as of June 30,2003, The Safety Plan ofth(! Town of Corte Madera (Employer# 534) . Actuarial Valuation as of June 30, 2003, The Miscellaneous Plan ofthe Town of Fairfax (Emp1oyer# 446) . Actuarial Valuation as of June 30, 2003, The Safety Plan ofthe Town ofFairfaJc (Emp10yer# 446) . Actuarial Valuation as of June 30,2003, The Miscellaneous Plan of the City of Larkspur (Employer# 553) . Actuarial Valuation as of June 30, 2003, The Safety Plan ofthe City of Larkspur (Emp1oyer# 553) . Actuarial Valuation as of June 30, 2003, The Miscellaneous Plan ofthe City of Mill Valley (Employer# 890) . . Actuarial Valuation as of June 30,2003, The Safety Plan ofthe City of Mill Valley (Employer# 890) . Actuarial Valuation as of June 30,2003, The Miscellaneous Plan ofth~ City of Nova to (Emp10yer# 615) . . Actuarial Valuation as of June 30,2003, The Safety Plan ofthe City of Nova to (Employer# 615) . Actuarial Valuation as of June 30,2003, The Miscellaneous Plan ofthe Town of Ross (Employer# 51 I) . Actuarial Valuation as of June 30, 2003, The Safety Plan ofthe Town of Ross (Emp10yer# 5 I I) . Actuarial Valuation as of June 30, 2003, The Miscellaneous Plan of the Town of San / Anselmo (Employer# 401) . Actuarial Valuation as ofJune30, 2003, The Safety Plan ofthe Town of San Anselmo (Emp10yer# 401) . Actuarial Valuation as ofJune 30,2003, The Miscellaneous Plan'ofthe City of Sa usa lito (Employer# 1426) . Actuarial Valuation as of June 30, 2003, The Safety Fire Plan ofthe City of Sausalito (Employer# 1426) . Actuarial Valuation as of June 30,2003, The Safety Police Plan of the City of Sa usa lito (Employer# 1426) . Actuarial Valuation as of June 30, 2003, The Miscellaneous Plan of the Town ofTiburon (Employer# 676) . Actuarial Valuation as of June 30,2003, The Safety Plan ofthe Town of Tiburon (Employer# 676). . . May 9, 2005 Marin County Civil Grand Jury Page 22 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns From websites: . CalPERS website (regarding pension contribution rates): http://www.calpers.ca.gov/indexj sp?bc=/employer/actuarial-gasb/ contrib- rates/mtes/home.xml . CalPERS website (regarding retiree healthcare plans): http://www.calpers.ca.gov/index.jsp?bc=/employer/program-services/health/home.xml . Ca1PERS actuarial presentation Addressing Employer Rate Fluctuation, September 2004: http://www.talpers.ca.gov/eip-docs/employer/video/co1or-er:-mte- fluctuation.pdf . Government Accounting Standards (on healthcare for retirees) website: http://www.gasb.org/ and http://hoguejr.com/gasb.htm . Actuarial Discussion of Government Accountings Standards (on healthcare for retirees): http://www .cca.ctuaries.org/resourcecenter/am-handouts/2004am/49 .ppt . Social Security Benefit Calculators: http://www.ssa.gov/OACT/quickcalc/index.htm1and http://www.socialsecurity.org/reformandyou/sscalc/sscalc.php. Unpublished actuarial report: Post-Retirement Medical Program Phase I, Marin County Employees Retirement System (March I, 1998) Pension Mathematics with Numerical TIlustrations, Second Edition May 9. 2005 Marin 'county Civil Grand Jury Page 23 of 31 . . . " . . . The Bloated RetlrementPlans of Marin County, Its Cities and Towns APPENDIX A Comparison of Private Sector Pension Plans to Retirement Plans of the County and the Municipalities Table 1- Benefit Factors for "Average" Plan* in the Private Sector (including Social Security) . Type of Plan Percent of Employers Factor Under Consideration Benefit Factor (or Impact on With Such a Plan Benefit Factor) I). Pension (Gross) 40-50% Benefit factor before Social 1.5% Security Coordination Effect of Social Security -0.2% Coordination la). Pension (Net) Benefit factor after Social Security 1.3% Coordination Ib), Social Security Value of Social Security -+0,8% Benefit Factor ("average" plan) 2.1% (Ia +Ib) II), Cash Balance 25-35% T olal Benefit Value Compared to 1.8% (approx 80% of la + Ib) Plan "average" plan III). Defined 15-35% N/A N/A Contribution Plan, with no other Pension *Basis: · The applicable retirement age for the plans illustrated is 63. · The number of years used to eslablishfinal-average pay is 5 years, · There is typically no cost-of-living increase (COLA) associated with these plans, except for the portion atlribulable to Social Security. May 9, 2005 Marin County Civil Grand Jury Page 24 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns Table 2A shows key benefit provisions for miscellaneous plans of the County and its Municipalities. Table 2B shows the key benefit provisions for the safety plans. . Table 2A - Miscellaneous Plans Public Entity Benefit Factor Retirement Age Final Salary COLA Years County1 2,0% 55 3 2% Belvedere 2,0% 55 1 2% Corte Madera 2,0% 55 1 2% \ Fairfax 2,5% 55 3 2% Larkspur 2.0% 55 1 2% Mill Valley 2.5% 55 1 2% Novato 2.0% 55 1 2% Ross 2.0% 55 3 2% San Anselmo 2.7% 55 1 2% San Rafael2 2.7% 55 1 3% Sausalito 2.5% 55 1 2% Tiburon 2.0% 55 1 2% Notes: 1The County provides a number of schedules of retirement benefits for its miscellaneous employees. The one illustrated above covers the majority of active employees. Other active miscellaneous employees are covered by other schedules. 2The schedule illustrated for San Rafael covers a majority of its active miscellaneous employees, Other active miscellaneous employees are covered by other schedules, Table 2B - Safety Plans . Public Entity Benefit Factor Retirement Age Final Salary COLA Years County1 3,0% 50 3 2% Belvedere 2,0% 50 3 2% Corte Madera 3.0% 50 1 2% Fairfax 3.0% 50 3 2% Larkspur 3.0% 55 1 2% Mill Valley 3,0% 55 3 2% Novato 3.0% 55 1 2% Ross 2,0% 50 1 2% San Anselmo 3.0% 50 1 2% San Rafael 3.0%/2.0% 55150 1/1 3%/3% (Police/Fire) Sausalito 3,0%/3.0% 55 /55 1/1 2%/2% (Police/Fire) Tiburon 3.0% 55 3 2% Notes: 1The County provides a number of schedules of retirement benefits for its miscellaneous employees, The one illustrated above covers the majority of active employees. Other active miscellaneous employees are covered by other schedules, May 9, 2005 Marin County Civil Grand Jury Page 25 of 31 . . . . The Bloated Retirement Plans of Marin County, Its Cities and Towns Table 3. Relative Values ofthe Miscellaneous Plans and Safety Plans ofthe County and Its Municipalities Compared to the "Average" Plan of the Private Sector Public Entity Miscellaneous Plan Value Relative Safety Plan Value Relative to to Private Sector "Average" Plan Private Sector "Average" Plan County 203% 382% Belvedere 213% 254% Corte Madera 213% 400% Fairfax 254% 382% Larkspur 213% 320% Mill Valley 266% 305% Novato 213% 320% Ross 203% 266% San Anselmo 288% 400% San Rafael (Safely = Police/Fire) 320% 355%/296% Sausalito (Safely =Police/Fire) 266% 320% /320% Tiburon 213% 305% The "average" plan is as defined on page 3 of this report as 2.1 % of 5-year final-average pay, retirement at age 63, and no COLA, except for the portion attributable to Social Security. In examining the values of Table 3, please note that they are approximations designed to give an order of magnitude differential between the private sector plans and the plans provided by the County and its Municipalities. They are not exact, being subject to differences in actuarial assumptions and plan experience. The relative values of the miscellaneous and safety plans compared to the "average" plan may seem quite high. They are the composite of factors designed to value the effect of the benefit factor, the retirement age, the final salary years and the COLA. The primary reason that these plans are much more generous than the "average"plan can be attributed to the ability of employees under these plans to retire with full benefits much earlier than would be possible under the "average" plan. Early retirement with full benefits is costly because benefits are paid longer to early retirees and the period of time over which the benefits are funded is shorter. ' To corroborate the credibility ofthese relative values, which were developed from relative value factors provided by several actuaries, the Grand Jury made a number of consistency checks. First, the Grand Jury investigated the arithmetic behind the benefits improvements adopted by the County's Board of Supervisors. Our analysis is based upon information taken from one of the first Marin 11 articles that caught our attention: . Under a new formula, an employee can retire earlier (50 versus 55), but has to reduce the benefit factor from 2.0% to 1.426%. The article indicated that, based upon an actuarial study done for the County, these improvements were essentially cost neutral, i.e., that this May 9, 2005 Marin County Civil Grand Jury Page 26 of 31 The Bloated Retirement Plans of Marin County, Its cities and Towns new formula (a 1.426% at 50 formula) has the same cost as the old formula (a 2.0% at 55 formula). . If the 1.426% factor were increased to 2.0%, then the benefit would be 40% greater (because 2.0% is 40% higher than 1.426%). Therefore, it follows that a 2.0% at 50 formula is 40% more valuable than a 1.426% at 50 formula. . But, the 1.426% at 50 formula is the same value as the 2.0% at 55 formula. . So, it follows that the 2.0% at 50 formula is 40% more valuable than the 2.0% at 55 formula. . This implies that there is about a 7% per year increase in value for each year the employee can retire earlier with full benefits . Comparing an age 50 retirement for a County employee with the age 63 retirement for the "average" private sector plan, the relative value for retirement age alone would be 241 %, a level consistent with those used to develop the results of Table 3. . Second, the Grand Jury went to a pension mathematics text, Pension Mathematics With Numerical Illustrations. Second Edition. Material in chapter 9 of the text showed the relative values used by the Grand Jury that pertained to retirement age are reasonable. Other material in the text showed that relative values used by the Grand Jury that pertained to both the COLA and the final-average pay period are also reasonable. Third, the Grand Jury constructed its own spreadsheet model. In the model, the Grand Jury looked at a hypothetical employee, hired at age 25 with a starting pay of $50,000. The hypothetical pension is given under a 2% of I-year average pay formula with a 2% annual COLA after retirement. The Grand Jury assumed 3% annual pay increases, an 8.25% interest discount (same as for the County plan), 3% annual decrements due to turnover before retirement, and life expectancy to age 85. The model then looked at the pension costs for retirements with full benefits at ages 50, 55, 60, and 63 (the "average" plan retirement age). Using the model developed by the spreadsheet, the relative value of the pension with full benefits at age sO versus 'age 63 is 238%, while the relative value of the pension with full benefits at age 55 versus age 63 is 175%. Again, the results are very consistent with those used in the development of Table 3. . May 9, 2005 Marin County Civil Grand Jury Page 27 of 31 . . . . The Bloated Retirement Plans of Marin County,lts Cities and Towns APPENDIX B Comparative Financials of the County Retirement Plans and the Retirement Plans of the Municipalities Tables 4A and 4B shows the annual funding requirements for the miscellaneous plans and safety plans, respectively, of the County and its Municipalities. The pension costs are shown as a percentage oftheir corresponding payrolls. The miscellaneous pension costs are shown as percentages of the corresponding miscellaneous payrolls, while the safety pension costs are shown as percentages of the corresponding safety payrolls. The County maintains several plans for miscellaneous and safety employees, The costs shown for the County are weighted averages over the County's plans. Table 4A. Annual Funding Requirements for Miscellaneous Plans of the County and Its Municipalities. Entity FY 2002-2003 FY 2003-2004 FY 2004-2005 FY 2005-2006 Costs Costs Costs Costs County1 .. 10,3% 1004% 1004% 13.9% Belvedere 1,9% 4.1% 10.1% 13.8% Corte Madera : 0.0% 3,1% 8.2% 15,6% Fairfax 0,0% 0.0% 8.7% 12,3% Larkspur 0.0% 3.4% 8.1% 13,6% Mill Valley 0,0% 8,5% 13.9% 16.9% Novato 0,5% 4.2% 9.7% 13,2% Ross 0.0% 2.3% 8.3% 12.2% San Anselmo 0.0% 3.0% 8.1% 17.8% San Rafael 7,4% 9,8% 20.4% 2504% Sausalito 0,0% 0.0% 9,5% 12.9% Tiburon . 0,0% 0,0% 4.6% 9.1% Notes: 1The County's costs do not include the cost of its Pension Obligation Bond. The County's then current actuary indicated that the FY2003-2004 costs for miscellaneous employees would reduce by 3,1 % on account of the POB. May 9. 2005 Marin County Civil Grand Jury Page 28 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns Table 4B. Annual Funding Requirements for Safety Plans of the County and Its Municipalities . Entity FY 2002-2003 FY 2003-2004 FY 2004.2005 FY 2005-2006 Costs , Costs Costs Costs County1 15,8% 14,4% 14.0% 20,9% Belvedere 0.0% 6.3% 16,5% 25,5% Corte Madera 4,6% 24.0% 33,6% 34,5~ Fairfax 9,9% 29:9% 42,2% 42.4% Larkspur 7.0% 10.4% 31.9% 34.2% Mill Valley 0.1% 2.4% 19,9% 17,3% Novato 11.7% 18.7% 30.6% 37.0% Ross 7.9%, 13,3% 19.7% 23.0% San Anselmo 8,9% 20.4% 31.6% 35.6% San Rafael - 7.7%/7.7% 13,2%/13,2% 35.2%/25,0% 42.9%/35.2% Police/Fire Sausalito - 0,0%/0,0% 7.6% /7.7% 24.4%/23.5% 31.5%/22.5% PoliceIFire Tiburon 0.0% 0.0% 10.9% 20.8% Notes: 1The County's costs do not include the cost of its Pension Obligation Bond. The County's then current actual)' indicated that the FY2003-2004 costs for safety employees would redu.ce by 7,0% on account of the POB For both miscellaneous and safety plans, in most cases, the cost increases were attributable to earnings on investments being less than the assumed return. Some entities, such as the County and a few Municipalities, d~d, however, have pension increases in the time period shown. . May 9,2005 Marin County Civil Grand Jury Page 29 of 31 . The Bloated Retirement Plans of Marin County, Its Cities and Towns . APPENDIX C .. GASS Calculation of Obligations of the County Retiree Healthcare Plans and the Retiree Healthcare Plans of. the Municipalities It is impractical for the Grand Jury to attempt to estimate retiree healthcare obligations fot the County and all of its Municipalities. Nevertheless, the Grand Jury believes that an estimate ofthe County's obligations is instructive. The Municipalities could use the Grand Jury's assessment of the level of their retiree healthcare commitment and the County's estimates to gauge the magnitude of their own retiree healthcare obligations. . The Grand Jury's estimate of the retiree healthcare obligation of the County was prepared in several steps: . Step I -The ratio ofthe County's pension plan's accrued liability to the pension plan's one year pay-as-you-:go cost was estimated. The ratio was approximately 21 to 1. . Step 2 - The ratio from Step I was multiplied by the one-year retiree health care pay-as- you-go cost, which for FYE 2004 was about $6.9 million (retiree life insurance included). The resulting amount is $144 million. . ,Step 3 - The County charges retirees an amount equal to the cost of health care insurance minus the amount the County allocates each retiree for retiree healthcare coverage. The Grand Jury understands that the County uses blended rates to determine the cost of coverage. The use of these rates means that the County assumes the cost of coverage is the same for retirees as for active employees. In fact, costs for retirees can be expected to be much higher than those for active employees. The rule of thumb is that older people have higher costs forhealthcare by about 3.5% for each year of age. On average, retirees will be on at least 20 years older than active employees, meaning tbat the cost of hea1thcare insurance should cost the County twice as much for the retiree as it does for the active employee. The County, however, subsidizes the retiree by charging as ifthe costs were the same. The Grand Jury estimates that tbe effect of the subsidy will add 50% to the obligation, bringing the amount to $2 I 6 million. . Step 4 - Until 1986, County retirees were not required to participate in Medicare, meaning that many current retirees are not covered by it. The cost for the County to provide retiree healthcare coverage forretirees not covered by Medicare is substantial. It is reasonable to expect the County's costs for future retirees, who are covered by Medicare, to be lower than they are for current retirees. The cost of coverage that is Medicare coordinated is as much as 75% lower than uncoordinated coverage. These lower costs, however, apply only when the retiree is Medicare eligible, i.e., at age 65 and later. The Grand Jury has rather arbitrarily estimated that the impact on obligations will halve the obligation to $ I 08 million. . Step 5 - The pension plan's accrued liability reflects an assumed inflation rate of4.25% . and a COLA increasing at a rate slightly below 4%. In effect, this means that benefit levels have an underlying cost increase of roughly 4% per year. Retiree healthcare costs have increased substantially more than these amounts for a variety of reasons: increased technology, transfers of cost from the gov~ment, price inflation, etc. Moreover, the County has a long-standing practice of increasing its retiree hea1thcare obligation iri lockstep with increases in retiree health care costs. This type of practice must be . May 9,2005 Marin County Civil Grand Jury Page 30 of 31 The Bloated Retirement Plans of Marin County, Its Cities and Towns . To corroborate its estimates, the Grand Jury was able to find material from the County's own actuary, who produced two sets of estimates applicable to a medium sized public sector entity. For each set of estimates, per capita obligations were established for miscellaneous employees, safety employees, and retirees. The first set of estimates, adjusted to reflect the numbers of the County's employees and retirees, led to an obligation of $160 million. The second set led to an obligation of $299 million. The only difference between the two sets of estimates was the interest rate assmnption. The first set assumed 8%, while the second set assumed 4%. In effect, the first set of estimates confirmed the Grand Jury's estimates arrived through Step 5, whereas the second set of estimates confirmed the Grand Jury's estimates through Step 6. As further corroboration, the Grand Jury reviewed the unpublished report, dated 1998, that was ostensibly prepared for the County. That report produced an estimated obligation of approximately $62 million. A number of adjustments need to be made to bring the estimate to the present: . The level of current. costs needs to be brought forward. The so-called Plan 3 cap, which was $2,930, in 1997, is now $6,873. The increase (135% in 7 years) would increase the obligation to $ I 45 million if all other retiree healthcare costs increased similarly. The estimated retiree healthcare annual inflation was assumed at 7.25% per year. This is 1.75% lower than the inflation assumed by the Grand Jury. If the 9% healthcare inflation assumed by the Grand Jury were substituted, the obligation would increase to $175 million. This amount corresponds closely to the amount estimated in Step 5 above, further corroborating the Grand Jury's estimate. May 9, 2005 Marin County Civil Grand Jury Page 31 of 31 . (' EXHIBIT N02<"~~"'.' 0/e~ ;fJo. ~) Town ofTiburon . 1505 Tiburon Boulevard. Tiburon, CA 94920 . P. 415.435,7373 F. 415,435,2438 . www.ci.tiburon.ca.us August 17,2005 The Honorable Terrence Boren Marin County Superior Court Post Office Box 4988 San Rafael, CA 94913-4988 Mr. J. Patrick Burke, Foreperson Marin County Grand Jury 3501 Marin Civic Center Dr., Room 303 San Rafael, CA 94903 Plans of Re: Response to Grand Ju Marin County, its Cities a " Dear Honorable Judge Bore Jury Report dated M respond to Findi These findings than the Town uron. to evaluate the Reo, ' Accordin . ...mi..!?,Jett@t recommendations\.tR,so .sponse to the Grand sthe Town of Tiburon to nd Recommendations Nos. 1-10. volve a number of agencies other s not have sufficient information espect to these other jurisdictions. tended 0 to apply to the Report's findings and they pertain to the Town of Tiburon. FINDINGS '>~ . The v0wn agr~~~ with the findings numbered 5, 6, 7, 8, 9 and 10. . The Towngisagrees wholly or partially with the findings numbered 1, 2, 3 and 11. FindinQ No.1: While we concur that Town pensions are more valuable than private sector pensions in many ways, we do not believe that the averages used in the Grand Jury Report reflect all the elements of compensation that are available in the private sector. The private sector can offer employees Response to Grand Jury August 17, 2005 Page 2 of 5 stock purchase programs, profit sharing, bonuses, employer contributions to 401 plans, and many other benefits that the public sector cannot. The Town believes that pension programs would be more usefully evaluated in context with other elements of compensation. Findiha No.2 We agree that private sector employees do particip In Social Security, while Town employees do not. However, other i:I:~:;.; nts of Town employees' total compensation package, jncl~.~.i;~~sal ries and other benefits, are correspondingly lower than is u7:ra in th 'vate sector. Findina No.. 3 remely vola ile in the ct the Town's ability's to '~ments to the pension iijinvestment portfolio. of the increased ContI" ury's mding, the Town is very well aware of the extent 0 retiree he care obligations. The Town of Tiburon has perhaps on the'}1..;.. restrictive retirement health care plans. Currently, only one for :';~0yee is qualified to take advantage of this benefit. The annual cos IS benefit is $2400. The Town has five other employees that could qualify for the benefit upon retirement, at varying levels. The total annual potential liability for these employees is presently $14,028. The Town does not intend to enhance this benefit, to avoid additional future Town liability. \ {; Response to Grand Jury August 17,2005 Page 3 of 5 RECCOMMENDATIONS · The Town has implemented Recommendation nos. 2,4 and 7. · The Town has not yet implemented Recommendation nos. 1, 2, 3, 5, 6, 8, 9 and 10, but will implement them in the future to the extent practicable. Recommendation No.1 Recommendation No.2 p for both miscellaneous to all its employees for their upports efforts to lower pension titive salaries. <--;>, WeL\,.port the eff6~8f th~.~ague of California Cities in their pension reform\'~.f)forts with theJ@overnor and the Legislature - specifically with their recOmmeJ'\l~9tion for r~~~ stabilization which would set both a minimum and a maximum~~.ploYx~.,'<Fontribution and establish a reserve at PERS to deal with difficult imtes '.tit years. Recommendation No.4 The Town's fiscal management is a!ld has been very conservative. In" .' developing the Town budget, the Town is careful to avoid funding recurring obligations with "one'time only" revenue sources. , '.~- " Response to Grand Jury August '17, 2005 Page 4 of 5 Recommendation No.5 The Town supports the League of California Cities' initiatives to work with the major employee unions, the Governor's office and the Legislature, to set statewide pension reductions. However, the Town does not have the resources to sponsor independent lobbying efforts. Recommendation No.6 The Town supports the League of California Legislature to obtain specific legislation aim retirement under control. However, the to independently sponsor statewide c with the disability the resources Recommendation No~ 7 The Town encourages all em workshops on retirement plan e has recommended not only that ooking into the future, but that a he PERS board take place, nger VOIC or employers in the retirement s this recommendation. e Town will evaluate retiree hE;!alth care within the Recommendation No. 10 As indicated above, the Town narrowly restricts the number of people who are able to qualify for retiree healthc:are benefits. We Will continue to keep those restrictions in place and, when the actuarials are done, we will take actions to continue funding the retiree obligations. * * * * * " , " Response to Grand Jury August 17, 2005 Page 5 of 5 The Tiburon Town Council reviewed and approved this response on August 17, 2005. If you have further questions on this matter, please do not hesitate to call me at (415) 435-7373. ,Sincerely, ALEX D. MciNTYRE Town Manager cc: Town Council T own Attorney Director of Administrative '- '\ . . . -r-; J~~ /et--L jUo, roo RESOLUTION NO. XX-2005 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON OPPOSING THE 2005-06 STATE EDUCATION BUDGET AND CALLING ON GOVERNOR SCHW ARZENEGGER TO HONOR HIS PROMISE TO UPHOLD PROPOSITION 98 FUNDING FOR SCHOOLS WHEREAS, the vitality of a cOtnmunity depends on many factors including quality schools, health and public safety services, parks and recreation; and WHEREAS, property values are closely tied with the quality of local public schools; and WHEREAS, for most individuals, home ownership is the single largest investment they will make; and WHEREAS, it is in the interest oflocal governments to take steps to uphold the values of property within their jurisdiction to support individual homeowners and businesses; and WHEREAS, restoration of appropriate funding to public schools would make a step toward protecting the well-being of public schools; and ' WHEREAS, California's 6 million students deserve high quality schools with well-trained educators, small class sizes, quality instructional materials, up-to-date textbooks and dynamic parental support; and WHEREAS, Governor Schwarzenegger made a promise to California's students and schools to ensure adequate school funding and to support voter-approved Proposition 98; and \ WHEREAS, the Governor's 2005-06 education budget breaks his promise to California's students and undermines the education funding protections California voters supported; and WHEREAS, California schools have suffered $9.8 billion in cuts in the last several years resulting in school closures, increases in class size, layoffs of teachers and support staff, and a shortage oflibrarians, counselors, nurses, custodians and groundskeepers throughout the state; and WHEREAS, the Reed Union School District has suffered more than $450,000 in cuts over the last three years hurting local efforts to increase parental involvement, ensure up-to-date materials, ensure ongoing teacher training, counseling services, music, art and library services and guarantee small class sizes; and WHEREAS, the Governor's education budget breaks his commitment to students and schools despite the fact that state revenues are actually higher than was projected when the agreement was approved; and WHEREAS, a recent study by the RAND Corporation found that California's K- 12 school system has fallen from its position as a national leader 30 years ago to its current ranking near the bottom in every objective category; and WHEREAS, California voters approved -- and continue to strongly support -- Proposition 98 to protect schools and students from harmful blldget cuts and to establish a minimum level of education funding; and WHEREAS, the Governor's education budget goes against the will of California voters; now therefore, . BE IT RESOLVED that the Town of Tiburon opposes the Governor's 2005-06 education budget and urges the Governor to uphold the education funding protections the voters say they want; and BE IT FURTHER RESOLVED that the Town of Tiburon calls on the Governor to fully fund education according to the requirements of Proposition 98. PASSED AND ADOPTED at a special meeting of the Tiburon Town Council held on August 17, 2005, by the following vote: . AYES: NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN 'CLERK . . ;' (' . . . " TOWN OF TIBURON STAFF REpORT ITEM NO. -q MEETING DATE: 8/17/2005 To: From: Subject: MAYOR AND MEMBERS OF THE TOWN COUNCIL <_~ SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMEN~ 41 MAIN STREET: PARCEL MAP AND NOTIFICA nON AGREEMENT FOR CONDOMINIUMIZA nON OF COMMERCIAL/RESIDENTIAL BUILDING; Doris J. Caceres Revocable Living Trust, owner and applicant; Assessor Parcel Number 59-151-04 AUGUST 10, 2005 ALEX D. MCINTYRE, TOWN MANAGER Date: Rev. By: BACKGROUND In 2001, the Town approved construction ofa new mixed use commerciaVresidential building at 41 Main Street, the site of the former Tiburon Tommie's restaurant. Construction of the building is nearly complete and it is almost ready for occupancy. A tentative subdivision map for the condominiumization of the three residential units and the ground-floor commercial unit was approved in January 2005. The owner had now filed for the Parcel Map to complete the condominiumization of the property. A separate agreement regarding notification of any proposed changes to parking leases associated with the residential portion of the project is also before the Town Council for approval. This agreement is necessary to satisfy a condition of approval on the conditional use permit for the project, and provides that certain modifications to the parking leases, as well as any proposed termination prior to the expiration date, must be approved in writing by the Town. ANALYSIS The Town Engineer and Planning Department Staff have reviewed the Parcel Map and found it in conformance with the approved conditional use permit and tentative map as well as and state and local subdivision regulations. The Town Attorney has reviewed the Agreement and found it acceptable. Tiburon Town Council Staff Report 8/17/2005 1 " In conjunction with the Parcel Map (Exhibit 2), Staff will record a lengthy Declaration of Restrictions (CC&Rs) for the property, which has been reviewed by Town Staff and found acceptable. The Notification Agreement Regarding Parking Leases is attached as Exhibit 3. CEQA COMPLIANCE Approval of a parcel map is a ministerial action and is exempt from CEQA. Approval of the agreement is not a project under CEQA. RECOMMENDATION Staff recommends that the Town Council adopt the Resolution (Exhibit 1) approving the Parcel Map and authorizing the Town Manager to execute the Agreement. EXHIBITS 1. Draft Resolution. 2. Parcel Map (3 sheets). 3. Notification Agreement Regarding Parking Leases (available at meeting). 41 main parcel map tc report.doc Tiburon Town Council Staff Report 8/17/2005 ", . . 2 . -." ~/ , . RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING A PARCEL MAP FOR THE CONDOMINIUMIZATION OF A MIXED USE COMMECIAL/RESIDENTIAL PROJECT LOCATED AT 41 MAIN STREET AND ALSO AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH RESPECT TO , PARKING LEASES ASSOCIATED WITH THE PROPERTY ASSESSOR PARCEL NUMBER 59-151-04 RECITALS A Parcel Map proposing the creation of four condominium units, three residential and one commercial, at 41 Main Street in the Town of Tiburon has been submitted by the property owner, the Doris J. Caceres Revocable Living Trust. ' The submitted map has been examined by the Deputy Town Engineer and returned to the Town Clerk as required in Section 14-6.8 of the Tiburon Municipal Code. . The Deputy Town Engineer and Planning Division Staff have determined thatthe map is in substantial conformance with the approved tentative subdivision map (Resolution No. 2005-01) adopted on January 12, 2005, and that all required conditions of approval have been met. A Notification Agreement regarding certain parking leases associated with the property has been prepared and submitted to the Town Council in order to comply with an earlier conditional use permit requirement imposed by the Town of Tiburon. Said agreement would be recorded by separate instrument. APPROV AL NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon does approve the map entitled "Parcel Map, 41 Main Street" (5 sheets), prepared by KCA Engineers, Inc., dated August 2005, and does direct that said map be duly recorded with the County of Marin Recorder's Office, together with an associated Declaration of Restrictions urider separate instrument. . Tiburon Town Council Resolution No. _-2005 8/1712005 1 EXHIBIT NO..L ::> BE IT FURTHER RESOLVED that the Town Council ofthe Town ofTiburon hereby approves the Notification Agreement Regarding Parking, dated August 2005, and authorizes the Town Manager to execute the Agreement on behalf of the Town of Tiburon. 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: ATTEST: MILES BERGER, MAYOR TOWN OF TIBURON DIANE CRANE IACOPI, TOWN CLERK 41 main parcel map reso,doc Tiburon Town Council Resolution No. _-2005 8/17/2005 .~ ;' \, .~~ . . 2 . ,. ~:r:g~zz~ o~Z~P~:r: ~~~~~~gj ;iQ"-IIIlO"-lSJ :i!;fUi:r:~~-< z!az~:i!:r:~ ;z"'z- >' :i!"-I~C)Z>iTl "'-l~>:i!~ gO>~"'IIl:i! 1Il--t::O 0> ::1:r:-<;;o~~"-I z"'-t"'aJ o oOo;;o~ ~~~~~~.~ aJ~~::f~' '" ~~>~~~~ ~oezO' 0 ~~~gt~~1 !'1~::f~~Z~ ~~z~~Sil c:")-t IIlIll 00~i:"-I~ ""'Ill "'>zO 1Il;!:1Il;9 -I ~OC ~:r: 0;;0 gJ:i! 0'" ~~~:!iO~ " "'~ b >;E0r'i'l:i!~ ZO">"'en 0,,::0::0;;0 ~~!il"'",Sil aJ~~:i!~ g.. ~"'" ~ ~~~~~~ ~"-Ig-<~~ >~~ ~ III .~- o Z ~ ~ ~ ~ ~ ~ ~ ~ en '" ~ ~ ~ oSil .... ~~ jh 0 :r: ~ 1l~ ~ ~ C ~ ~ ~ ; ~ ~ en _" ~ I>) ;;0 I ~~ ~ : ~ ~ c ~ ~ 8 ~ :i! en _ -i en ooen zgj;! 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(/) o ...J <( n """ ....: ..- .Ll'L ~ST . 10 ..- b> """ en go ....... ....", 0::::: o o -.-J l..L- o 0:::: ::I: I-- >- I- 2 ::> o u 2 a:: < ~ <( z a::: o I.L. :::i <( u - (f) I- W W _ I LO (j') II . l() ..- lL. W 0 ...J . <( U u I.{) Z (/) (f) a::: I- -W W W W (/) Z V5 a:::~ wW fW...J Z> _u C)<.? Z2 W5 ::> (j') <(2 U8 ~ I.{) o o N >- ...J ::J ...., ~ LATE MAll # '1 RECORDING REQUESTED WHEN RECORDED, RETURN TO: TOWN OF TIBURON DIRECTOR OF COMMUNITY DEVELOPMENT 1505 TIBURON BOULEVARD TIBURON, CA 94920 AGREEMENT REGARDING APPROVAL OF AMENDMENT, ALTERATION, OR TERMINATION OF PARKING LEASES AT 41 MAIN STREET, TIBURON, CA This agreement is by and between the Doris J. Caceres Trustee of THE DORIS J. CACERES REVOCABLE LIVING TRUST ("Owner") and the Town of Tiburon, a municipal corporation ("Town") regarding certain parking leases for 41 Main Street, Tiburon, California (APN 059-151-04), more particularly described on Exhibit A (the "Property"). These parking leases specifically include the parking leases by and between Owner and Main Street Properties dated June 10, 2002, attached as Exhibit B and between Owner and Point Tiburon Plaza, Inc. dated May 26, 2002 attached as Exhibit C, and are hereinafter referred to herein collectively as the "Parking Leases". The Property has been approved as a mixed-use commercial/residential project (the "Project") by the Town pursuant to a conditional use permit approved by the Town, which conditional use permit was filed in the Official Records of Marin County, California on December 28, 2001 as Instrument No. 2001- 0091020 (the "CUP"). Said CUP was subsequently amended with respect to required parking provisions by a conditional use permit amendment approved by the Town and filed in the Official Records of Marin County, California on July 1, 2002 as Instrument No. 2002-0056987 (the "amended CUP") . As a condition of the amended CUP, the Owner is required to furnish six (6) parking spaces for the residential component of the Project. The Owner has satisfied this requirement by having made and entered into the Parking Leases. The condition of the amended CUP also / requires that the Parking Leases contain a provision that "...any amendment, alteration, or termination of the lease (s) must be approved in writing by the Town of Tiburon." The Parking Leases were executed without such a provision, and the purpose of this Agreement is to cure this defect in the Parking Leases. Nothing in this Agreement shall be construed as a waiver bf any conditions of the amended CUP or the Town's right to enforce those conditions. C:\Documents and Settings\sanderson\Local Set1tingS\Temporary Internet EFixmleS\OLBK1IO\T41Nmaoin.3 agreement2.doc l.~ Owner hereby agrees not to execute or otherwise consent to any amendment, alteration or termination of the Parking Leases without the Town's prior written approval, except for any Adjustment pursuant to Section 3(b) of the Parking Leases. Upon termination of any of the Parking Leases, Owner shall comply with the requirements of the amended CUP and the Tiburon Zoning Ordinance with respect to maintaining parking for the project. Non-Compliance. Failure to comply with the terms of this Agreement shall be grounds for revocation of the CUP. Attorneys Fees. In the event any party hereto institutes legal action or arbitration to enforce ()r interpret its rights under this Declaration, then the prevailing party or parties shall be entitled to reasonable attorneys' fees in addition to other costs of suit as awarded by the court or arbitrator. Governing Law. This Declaration shall be governed under the of California. The Town shall have the right to enforce provisions of this Agreement in any manner allowed by law. laws the Equitable Servitudesi Covenants Running With the Land. All of the covenants herein contained shall be deemed to be equitable servitudes enforceable by any of the Owner and the successors and assigns of the Owner and holders of title to the Property or any portion thereof and shall be covenants running with the land and shall be binding upon and inure to the benefit of all parties having or acquiring any right, title or interest in any of the property herein described. Termination of Agreement. This Agreement may be unilaterally terminated by the Town at any time by adoption and recordation of a resolution of the Town Council to that effect. Made and executed on , 2005 Owner: By: Doris J. Caceres, Trustee of The Doris J, Caceres Revocable Living Trust C:\Documents and Settings\sanderson\Local Settings\Temporary Internet Files\OLK10\41 main agreement2.doc 2 Town of Tiburon: By: Alex D. McIntyre, Town Manager APPROVED AS TO FORM: Ann R. Danforth, Town Attorney Attachments: Exhibit A The "Property" Exhibit B Parking lease by and between Owner and Main Street Properties dated June 10, 2002 Exhibit C Parking Lease between Owner and Point Tiburon Plaza, Inc. dated May 26, 2002 C:\Documents and Settings\sanderson\Local Settings\Temporary Internet Files\OLK10\41 main agreement2.doc 3 EXHIBIT A LEGAL DESCRIPTION 41 MAIN STREET (ASSESSOR PARCEL 059-151-04) ALL THAT CERTAIN real property situate in the City of Tiburon, County of Marin, State of California, described below as follows: PARCEL ONE: BEGINNING at a point which is by transverse from Tide Land Post 469 and Iron Bolt set in a cement post on the South side of the Isthmus connecting the main land with Peninsula Island, FIRST: South 64054' West 203.48 feet to a concrete monument and SECOND: South 59045' West 66.38 feet to the said point of beginning; running thence South 59045' West 56.25 feet; thence North 41044' West to the South line of the County Road; thence along said line North 69024' East 59 feet; thence leaving said line along the Westerly line of the property conveyed by W. A. Power et uxto H. O. Adams by deed recorded January 24th, 1928 in Book 137 of Official Records at Page 482, to the point of beginning. PARCEL TWO: A NON-EXCLUSIVE RIGHT OF WAY over the following described property: BEGINNING at a point which is by trarisverse from Tide Land Post 469 above referred to. FIRST: South 64054' West 203.48 feet and SECOND: South 59045' West 122.63 feet; running thence from said point of beginning, North 41044' West to the Southerly side of the County Road; thence South 69024' West 10 feet, thence South 41044' East 58.18 feet; thence North 59045' East 10 feet, more or less, to the point of beginning. I ,APR-28-2003 09:51 NEWMARK REALTY CAPITRL '::jlb::>b~~'::j';:j'::j t"'.lad/14 EXHIBIT B PARKING LEASE THIS PARKING LEASE (this "Lease"), dated as of June 10,2002, by and between Edward G. Zelinsky, Laleh S. Zelinsky, husband and wife, and BarbaraZ. Abrams, individually and as Trustee of the Alan L. Abrams Trust, d.h.a. Main Street Properties, (the "Lessor"), the owner of the Tiburon Boulevard PB!:king Lot (the "Property"); located at 1 525Tiburon Boulevard, Tiburon, California, and the DORIS J. CACERES TRUST (the "Lessee"). 'In consideration of the mutual covenants and conditions herein contained llnd for other. valuabl~ consideration, it is hereby agreed: 1. Use of Premises. , Lessor, in consideration of the sum of One Hundred Eighty Dollars ($180,00), which sum is for three (3) parking spaces at Sixty Dollars ($60.00) per space, paid to Lessor by Lessee in payment of the fIrst month's rent, the receipt of which is hereby acknowledged, hereby and upon the following terms and conditions, leases to the Lessee, and the Lessee hereby hires and takes from the Lessor, those certain parking spaces set forth herein, namely Three (3) parking spaces in the Tiburon Boulevard Parking Lot (the "Premises"), Les.see has leased the Premises to provide off-site parking spaces for residents, guests, pennittees and invitees of Lessee and/or residents (together, the "Pennitted Parties") of Lessee's contemplated condominium project (the "Condominiums") seven (7) days a week (the "Hours of Operation"), subject only to nonnalmunicipal street cleaning operations. The Premises shall remain open and available for parking by the Permitted Parties at all times during the Hours of Operation. Lessee at;know'1.edgesuthat there are no teservectparking ~paces. Each car must have a valid parking pass displayed on the dashboard of the car, or pay the daily fee. ' 2. Tenn. The primary term of this Lease shall commence on January 1, 2003 (the "Commencement Date") and expire on that date which is Ten (10) years from the Commencement Date (the "Expiration Date"). Ji ~ ~." ,tl'-~ 3. Rent: (a) Base Rent. Lessee agrees to pay to Lessor as the monthly rent (the uBase,Rent") for the Premises, without deduction or offset, prior notice or demand, the sum of Sixty Dollars ($60.00) per month per space due and payable in advance on the first day of each calendar month and continuing throughout'the balance of the term of this Lease. (b) (\4justment. The Base Rent shall be adjusted, not greater than annually on each anniversary date, at the same percentage as the adjustment to the rates of other long-tenn parking space users. IN NO EVENT SHALL THE BASE RENT ADJUSTMENT BE GREATER THAN 6% ABOVE THE PREVIOUS YEARS RENT. 4, AssilffiI1lent. Lessee may freely assign this Lease and/or the leasehold estate created hereby and/or sublet any of the parking privileges granted hereby, with the consent of Lessor, including, but not limited to, one or more assignments to any purchaser, lessee, homeowners association or other transferee of all or a portion of Lessee's right, title and interest in or to the Condominiums and this Lease shall at all times be appurtenant to the Condominiums. To issue penn it, Main Street Properties must know who is using the permit including a description of the car and license number. Permit is not transferable. 5. Taxes and Assessments. Lessor shall payor cause to be paid before delinquency all taxes, both personal and real property, assessments, license fees and other charges that are levied and assessed against the Premises and that become payable during the term. 6. . Loss. Theft. Damage. Main Street Properties shall not be responsible for Loss, Theft or damage while parked in any lot owned operated or controlled by Main Street Properties. Crealed On 617/02 APR-28-2003 09:51 NEWMARK REALTY CAPITAL 9165652999 P.03/14 7. DamaiZe or Destruction. In the event of material damage or destruction to the Premises from fire or other casualty ("Casualty"), this Lease shall not terminate but shall remain in full force and effect and Lessor shall proceed to obtain any neceSsary governmental approvals and pennits to repair andlor restore the Premises to a similar configuration as existed prior to the Casualty to the extent permitted by the then applicable law, provided that it is reasonable. Notwithstanding the foregoing) in the event that the Premises are rendered temporarily unusable, Lessor and Lessee shall have the right, but not the obligation, to meet and confer (a "Meeting") regarding a more efficient use of the remaining parking spaces. 8. Events of Default. The occurrence of any of the following shall constitute an .'Event of Default" hereunder: Lessor or Lessee. fail to perform or cause to be pcrfonned any other provision under this Lease and such failure is not cured within thirty (30) days after notice to such party or, if such failure cannot be cured within such thirty (30)-day period, such party fails witbinsuch thirty (30)-day period to commence, and thereafter diligently proceed with to completion, all actions necessary to cure such failure as soon as reasonably possible. 9. Zonine.Lessor represents and warrants that the Premises are located in a zone which presently penuits the parking arrangement contemplated under this Lease. 10, ' Notice, All notices required or pennitted hereunder shall be in writing and shall be served on the parties at the following address: If to Lessor: 'Main Street ProJ)enies, Inc. C/o Ed Zelinsky 130 Main Street Tibw-on, CA 94920 Phone (415) 435-0413 Facsimile No. (415) 435-6514 With a copy to: Hassard Bonnington, LLP Two Embarcadero Center) Suite 1800" San Francisco, CA 9411.1-3933 Attention: Gary Gavello, Esq., Facsimile No. (415) 288-9801 If to Lessee: Doris J. Caceres, Trust 50 Atherton Oaks Drive . Novato, CA 94945 Phone: (415) 897-0774 Facsimile No. (415) 897-1874 With a copy to: Steefel, Levitt & Weiss' One Embarcadero Center, 30th Floor San Francisco, California 94 I 11 Attention: Janet N orris. Esq. Facsimile No. (415) 788-2019 Any such notices shall. be either (a) sent by certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the U.S. mail, (b) by telecopier, in which case notice shall be deemed delivered when the transmitting telecopier machine has confll1Ded that the notice has been completed or sent without error) (c) by personal delivery, or (d) sent by a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with such courier. The above addresses may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Created On 617/02 2 APR-28-2003 09:52 NEWMARK REALTY CAPITRL ~lbjb~d~~~ ~.~4/14 "- r 11. Broker's Fees. No broker has been used in cOIUlection with this Lease. Neither Lessor nor Lessee shall have any liability or obligation to pay any conunission, fee or cost that may become due or payable to any person or entity for services relating to this Lease, and each agrees to indemnify and hold the other harmless from any such conunission, fee or cost and all related expenses (including attorneys' fees) for which the other may become liable to any person. 12. Amendment: COIllPlete Al!l'eement. All amendments and supplements to this Lease must be in writing and executed by Lessor and Lessee. This Lease has been entered into after full investigation of the facts by both parties and neither party has relied on any statement or representation not embodied in this document. This Lease has been drafted through a joint effort of the parties and their counsel and therefore shall not be construed in favor of ,either of tbe parties. 13. Governine Law. This Lease shall be governed under the laws of the State of California, 14. Counteroarts. HeadiIies and DerIDed Tenns. ThislLease may be executed in several counterparts each of which shall be an original, but all ofsuchcounterparts shall constitute one such agreement. The headings used herein are for convenience only and are not to be construed to be part of this Lease. The terms "Lessee" and "Lessor" as used herein shall include the plural as well as singular. If more than one person or entity is named as "Lessee" and/or "Lessor" the obligatiOlls of such persons or entities are joint and several. 15: Additional Docwnents. Each party hereto agrees to perfonn any further acts and to execure and deliver any further dOC!l.'1lents which may b~ reasonably necessll.ry to carry out the. provisions of this Lease. 16. Attornevs' Fees. If any action or proceeding shall be brought by either party in order to enforce the provisions of this Lease, or to collect damages as a result of the breach of any of the provisions of this Lease, the prevailing party shall be entitled to recover all reasonable costs incurred in connection therewith, including reasonable attorneys' fees. \ IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly executed as of the date first written above. "Lessor" "Lessee" ,J,... , ".. \ DORIS J. CACERES TRUST ~. 0p)/~~; ~r a~~~ ~ Doris J. Ca&res, Trustee of the' Doris J. Caceres Trust ~; /' f_... , j \ ~.~ '~~. '..I -.,...- J C "/7-"/0 '- 7.... ~ --Ok Date t \ ../ r\ I, ',] , / Date Created On 6nt02 3 ,APR-28-2003 09:52 .....-.. - -'-'..'--'-"" NEWMARK REAL TY CAP !TAL .~ . 111.J1'U.. "u. .,......, '-IJ I ...v..... ,9165652999 P.05/14., JUl. t.toJ l:.UtJ.:. c..I'J.....,,.,,:. rJ. 'M~-21-2002 11!12 NEWt 916SES29'3~ P. 132,'02 .. EXHIBIT C l-AR.1ClNG L~^6E 'T'HJS PARXJNO LIiAEE (thil "Ul1B0"). datad.. afM.)' .2002, by &I1d bttw..!l PONT TIBUltON PLAZA, INC. a Callfl)Jllla Corporation. (tlm "LassDr''). rhCOwner orrhe 'Pofrtt Tiburon parkinJ Lot (the 'l))roperty't), locai~ el170 1 Tlburon Bouleverd, Tiburoo, Ca1ifornl~. ond th6 DOlUS J. CACUBS TRUST (tbe "'LIIIII"). In consl.dentioll oftht mntual COVllnaDtI llnO condttlODB herein contaizled and for Orhllt vlluablll ConstdlrltiDYl, it is bfJreb)' agrtlcQ: 1. lJU! o"'Pm~I~QI. l.I!Jlllr. in cOrdUknll.;DI\ of the turn of1'wD HuncWa. Sr:veoty Dolws CS170.06). which sum Is for thret (3) p,ndJ1131)IICIl$ at Nln~ Oollan (S90.oo) per space. paid to Lessor by Last& in p~ymot of the flm month.. rent. the reoolpt ofwhJcI1l1 bereby BOknowlccJstcl. h8n!by and upon . tbe tvl10wlni Wms 'lltulcunditi12n:s, lCll$Cli 1tI thlllAnllll, and the LC33CC hm:by hiRi uIIl tIIb::i frQJII tho . leetor, thnla c:DJtIsin parking lIpaces 80t f~t'th herein, namal)' Three (3) parking space, in thc 'Point TibucOJl. Pll'kJn& l..A)[ (me l'f.>Jemheslt), alP. bas leasod tM PrtIrl_ to provide ol!-slte parking ~p~ fbr 1':aidauts, CUO!U. pll"lJ1Ltteoa Ilnd irrviWN 9flMaco and/or mid~ (wl:~cr, th~ "PormittGU Partil;~") of LD8GN'~ contmDpj,""A.fondomlllium project (tbe lIColldominiuml"). The Pcmittod Pde, cbalJ be -, ~15ntitJed to the ~.c Dfthe parking 11'iOes in the Premise. during all hours orlb! day and night, , ' seven (7) ds,ys a WI;k (1110 "Hours of OporlUon"), aubjeot only to nonnal municlf)al street cleaning oporadClns. The .Pt';I1lIS88 Ihan mnloin opm an4 available fOf parlc\nli by the PmnUttd !'anles It all times during tho Houri ot OpcratloA. ~, Imm. 'The pr1marytenn afthlr: Lease shaD commance on Jilluary 1,1003 (tbc "CommoagemOTtt OIIw") .d expire on that date whlc:h is Tan (10) )'olln from the: CommqgOU\ont Pate (tl& "BXl'Jradon Duto"). 2e, Blltonded Tenn. Upan thll Cjq)'n1tion Dlto, Ihould both partl.. 111'01, tho tmn sbnU be !xtlnded for an additional ten (10) yoar poriod ca tmns Md ClODdltiona to bo d.e1l;..'T1nillcd. 3. &m: . (a) Bu. ~ LeUI! ElJL't09 to JIll)' to LeaaDt III Ute monthly I'fJ1t (the "Base llaut") rOt the PJ'tlftIUII, wIthOut dedutt10n or otfier, prior notice or demand. thuum of N~ Dolbr! (190.00) Pf1' month par 'Palle dllC IIUld pavabl; in Advan= on \hI rqt ~ of each Cllmdarmoutb IIW comlnu1n~ IN'OuaboUt the be.1~ oflbo WIn oftllJl LeISe, at .ugh plaee or pllcl~ III LelIAor m.ay de~lgna\e &om time \(l time. (b) AdlUltmMJl 'lbe BIll6 &ent "ball be adJusted, l1at ~8JI5r than &Nluall)' OQ CIlcb IAIllVOtW)' dato.at the 111m' Permltq, ..tho adjusanm \0 th. '1IlOS of' other lonjtotcnn pukina sptlCO ulm. TN 'NO EVENT SHALL nm BASB KENTADJUSTMENT BS OREA TER mAN 6% ABOVE THE l'&BVlOUS YB.4JlS RENT, 4, Au!pmr:ol:, LouI' JnIIY &tll,y udp thlI Leu. l1IId)or the leuehold a&tDle created. hereby mdlor sublet ~y oftbe parkin, privil., pmd hertby, without Ihe CCI1l1nt oFLcuor. including, blltnollimlled to, QJle or more asslpmeDU ~ U\y purchUD%, !eRe". l1omeownm lUsociaUoD or oUler U'lIJ1~rec of all or I 'Portion cft.~c's rigl1t; tilllllUtd w.e1'est ill or tD the Condominiwns and this Lelllllt diall at all tlm.. DlllpJJlll10nant to the Condominiums. s. T8ltcS ll.Dd AUll"!llftaJm. Lellor !ball pll~ or caU3~ 10 be pAid bcfol~ ddlnqwmQ)' 11/1 tMn, bot'h ptlllonallU'1Q ~I J'T'ClPIri)r, KIM,m,l'lW/ li~""R fou and DrI\ar cblll1lBI that IInllevied aod IlSlClBsed aaalDlt tb8 Premim and thai becolM p~le durlnJ the tlmn. 6, lnleZltlonallY Deleted Crc:lllOd on 5(~ 4;11 I'M TOT~ P.02 APR-28-2003 09:53 rtAY-2e-2002 15:504 NEWMARK REALTY CAPITAL I I 1U1'U.: I~U. . "'J.::> I:j':l ( ll:l/.:j NEWMARK R!;r:L TY Cf:P 1 TAL 9165652999 P.06/14 j u 1. 05 2002 09: 48AM P2 9165652993 P.03/06 7. COIJUl. ~!th Oovtmmwnlll ~Iag, LeUClT IIl1d Lca&cc ~ that they wllJ comply with end con.rurm to nlllaw. IDcl onilJu:nte$, ml.llliclpll. stlteud tedenll1lDcI arty and aU lawful I'Oquiremtlnllaad orc1m or II1IY propet\,y con5tiMllQ Dl\lnioipal, lta!O or ~ board of authDrity pr851ll\l or futuro, nlQulrel! by reaaon of the operation. ust or occupanc)' of the Premises,' , 8. D8me;e or Dell1'ulltion, In. the evl'Trt of ma1etill dlll1l~ or dtltruction to the Prcmb:G uom tilt: or other casualty C"ClS1.lalty"), thll Lad. .hall nut 1erm1na14 but 5blll~lJ1IIin in tbll foree lltld ef!ecl a.ncl Lc,sor shall proceed ttl obtain ~ lltUSlary Ilovtnlmcmal appnJvu IU\Q pL'mlits tn repair anli1/Q( %;Store the t'rcrmlm to I sImilar can1lguraLlon ue~1ed prior to the Caaualty to tho cxtont permitted by 1M then appllcab!e lll'v, provided that it i. rlUonabIe. 'Natwithstandln,e the lbrllgoiDi, In the llvent thaI the Premlscs aro flll1dl!ll'ed tempOrarily un""able, LllSSor and L..aee Ibllll hav~ ~e rigbt, but not the obllgatlon, te I11Ht IIl\d oontr:r (a "Mcct!4g") TCprdlne a morllll!"'clent UA6 of the remaininG par1dng 'pICas. 9, Condfrl'l1natfon. l.a the event of 11 matotiel takIn& of \he Prtml5es pU/'luant to the cxcm:islI of the power Df condem=r!bn Dl' tmiaeAt doll1Jsi.. whothlr by legal procDedlngs or oth.mwllt. by any publio or qu..i"Pllbli~ aWhorlt)'. pTivata I:orpornlian urlndfvJdua1 ha'linl the power of canc1eatAaliO'O Dr eminlt, clocna.Ja Or is volW1tllrUy sold or ~ to a oondcmnini" lUlhotity either unite:' threat of ctrnlkmDntlol1 or while lepl procaedJnss fbr cmldem.wlClll are peJl.dills (e. IICllndemnBlioJllr), uy IlW'llrd for oampenllrtion lAd/or dmnn;u, whether attained bYl!gn'l!D1!llt OJ' by Judgrlwut or verdict &f.\er trial, applying to the CoDdemnlt!Vn \1fthe PremI&09 .hall bolo1\~ ud be "Did ~ the Les:sor. The roregoil'1~ iba11 not pRdllde IA:IIISCIa, hawevl:t, from collectl!la an awird \noludlna, bllt not limited to, the value afthk L.... and relatod to the aondwmlltlOll of !he Condominiums ratblrr thao d1~ Premises In me ewnt tl1at a. CClldllmn81loo mults iD a. mJl1leriaJ rt4lacllon of'lA~" parlc.in& privileges and LtllOr docs not 1Jt'OVido eqwvalent plrldDl spaDu within a lusoAablo period not to ex.oeed dljJty (SO) daya f'ollowmg such CDndOlNlatiClllll\d at . I"tQDOalblo diltanQl1i'om the CondomiMlJllI. L~~ Illlmn have the optiDTI to temIlnale tb1! Lode, aT ifLel5ee dcs1ra. I:b Illmttnue to leue the Pnmim, the rental "Ill be decrcll.QCO 01'1 a pnl-rata v-ia. 10. Il.v~ IICPef.&uJt The 0CC'UI1"CIlIlC DfUl)' of the fhllowinB shaJl consliwt.e &II "avvnt of Deiallls" hereunder: T..e9w or ~1I. faU to perform or CIlUSD 10 Do perfonncd 1111 othCt' provlsiCll under thIl; LcDle ed such qnm \Il not cured wflblc thi11}' (30) dayi after no lice to slIGh JI8"Y or. if BUch fnilllle cannQt be currx! witMa luch tb~ (30).day puloQ, luch party rails within such thirty (30}day llmod to colM1Cr1ce, IlI1d themftct c11118eA~ proceed with 10 completion, all actiolli 11004Ulry to ll'W'C IUch failure II "'Olld teGODAbly "o~ible. 11. aemlld1e~. \)pon the QeC\IlTeUCIe of Ill)' EvanL Df DtfRlr. tho f1Dn-defiultinl part)' Khall bin the rlsht so ",pcctfiv ~lIIlCCl &nd osher hUuD~I~ ~U8fBDd tlle 1iiht to aauaJ I1Im-Bes, excluding cgn..quc~.l damaael uli lSam,!1S for Ion proflta. Th.." rIghts Ire III additilm to UJ>' riahtt sat farlh in the other provision. of thI~ bUD. The !Iilatl of auy PILl't)' ro enfcrree ~ prov1llo1l ofthit Lease or [0 !leek r~sa for AlIf breaoh orthl! provisions hereof tnallln no went be dccmlld a waive: oftht\ ~ to do 10 tb~r, tc"ee IlWll1l no."...y be liable to Leuor or 1lJ\)' otI1er pelSon for ib refusal 0'1 fail\n 10 cmfurce Cf OIIlaC to be C'l\forc~ IIUY of the ptt>>V\S;onJ oflblslc21Je or for i~ waiver of sueh l'roviJion~ 01' my violations Ibereot. - la. ~. Lcl1'l)I'~prcllClnu and wem.nt.\ thaUnCl hemlscs rac located In a %Otle which pl'llQently pmnh~ tbeplrldnga!'lAn.gemCl\l eontwmplated under thit LoAac, 1.3. ~. All!nOt1curequlred or ponmlted bereander shQU bo in writing and lIhall be sefVad en the patties lit the folJowlng addnlss: Jete Leuor: PolAt Tibwvn P1lllA.lao. C/o Ch0n8 cook 1701 TiburoJ.'l Boulevard Tlburcn, CA 94P10 .::r._ 011 $Iltl{OJ 4;11 JIM 2 t.) ... , '. i: ~:~Fr.i7.~2002 LS IS"- NEWMARK REALTY CAPITAL , N+.K R=AL. TY a:p 1 TRL 9165652999 P.07/14 ,APR-28-2003 09:53 L~/ 9165652999 fl.la4/l1Jb Pacalmiht No. w~. ~P)' to: A1WntIon: Fwimil. No. Iftq LGII1I:' Doris J. Cal:sre8, TrUSt ~o Atherton Ollla Dri'R NovatoJ CA 94945 . PbO.D.o: (415) 897.0774 FICIIimIlo No. (41$) 891-1874 w~ II oopy to: Stiefel, Levitt ~ Weus OAO Embarcadero Oenrer. 30th Floar Sin Pranobc:o, CaJlfbmla 94111 AUantlcn: Jeot Nom., Bsq. F'acalmil, No. (4)5) 788.20l~ ~ lIu.oh Il00Cl'1S 8halI be eIther (a) ,1IDt by certified mail, MIUm receipt reqDllllWJ. in whlcb c&&e Dotiee shall be deemed dulivmc1 ~. (3) .businlt. daYJ aft.et .,it, portage }trepmd In tho U.S. mail, (b) by wlOObplcr, in which ClIe ncti~ .halT be clOllmoci dclivored wbcc tho tnm8lDittJn& telecopier macbJnc has c011flrmed that the IlMice nubtel:1 complotrcl 01' lent wll.b.out mol', (c) by personal doliVOl')', 01' Cd) Slmt bv a asstlonalJy rec~ CMmigh~ c:awier, In whIlih DIII~ nctfce shall be 4eemod dlUvereCi one (I) bmineS! . riJy &ftw deposit wi1h luc:h ~uiiw. The llboYl addresses may be ch.Q2!d b~ writtcn nDtIClS to the other Jlllr1>'; RrQyi~, bowevrr~ that i10 notice of 11 change of ItldteSS dIall b" effective until aCllIll receilll of such noCicll. 14. Broker's PII~ No brobr hub"" lIliOdbt oonncmrm with this LCQ3o. Nohhcr ~550r nor r..e.c WUJ have Ill)' UD.bi'itrar Qbliptlon to pay my cDmmlJslOH, 1ile or COIlt that mil)' become due 0(' Pl)'lblo \0 any. penOA or enUty!for .ervim rolallng to thh Lease. and 'ach ""ecs to lr.damnity and hDld me olher harmless ~m8l1)l1U~ commission, ~ or coat and aU related expenses (lncludinr ll.ttorne)'s. ltOl) for wb.1cb the other may 110COl'nc llahla to ~ Jlllrsan. 1$. ~J,Jbordinatloi:1. Th18~. wt1boll; MY rut1her in$1rvwllOt, ahall Dl aU tlmOll be lu)ject and. &ubordinata to IDY IDd aU ~fiectiV'f or hereafter n~cuted around or unt!.dylq )cultS, mll.1X) ID}' anti all mongagea and/or tJ88d5 ofUu;t whloh ~ new or hereafter tlfect the Lessor', mate in the rea) ptDpcrt;y of' which b: ~ form . part, and to alladvlII1ces made OJ hl:JlllIfW to be madt upon the .eowlty therefor, lUel tQ an r'n~IlBt modfncatiOflIl, consolidation" roplac:cmCllb and extenslDJIS IhL'1'eOf. Thi5 lease sbllIl c:ontlnue in Ni' f'o~ IlIld eflier If lIT)' pmOD or p~101IB. {nl:ludq but not limited 10 a.ny ~und leslor. mortppo \lD.c1er 8 mot1~e or bcaoficlBl')' under a dll8d of 1nISf. pun:huss or otbel'1Ni~e acquires tile real property On ~i ell the Pnm:2l.sOl "" IDe&~ l;Iy " gro\IAl1 leas, tmnlnatioA or by .ny judicial or nl;l1JJudi;I.1 fcrocloslJl'O or othor lal, proceDCllng untler &uchmottgage Dnd/or deeds (lftruat, ill lhowne manner u if sueh pmon or pOlSQlU had been Ilamed Loss~ ber".ln lIl1d tItls LaR: 5b&! comlnuL': In full llJrce lVId effect as aforolald llIld Lessee hereby atl()l11J IIIld a8re~! lD attorn tt) luch ~Ilmon or pm011l, . 16. '&topcel Cerlifiltll!!. Any panyro dlili le~, lDDludlnB Lessor nnd l.cs,.. (the lfCsnl~1n8 Pittio~") Iballat IUf! time ud iTom timo to time. UflOTl not less rhB/1 tlf1'l (1 0) ~' Jlriur wrttle.'1 401100 &om another sueb. partylhereto (the! OIRequattlng ?arty'"), ename, acknowledge amI deliver II) tbe Reqv.flln& Perty 11 .talemeDt II! wdtizll. II.S mt\Iemd by Ihc RllqUestin~ Party Df any cumm or pras;pective plRhBm. &$.Ipee. auhtenllnt.,imonaagee of a m01181i1l or Nnetlolmy of. c!eed of ~ or underlyin~ loaor or all or IllIY portiQn of the Preml9c:.. tbe Propert}' Dr the Condomlnlum&. cenifying: en.s.:d OR liaOlO2. 4:11 PM .l ("J APR-28-2003 09:54 NEWMARK REALTY CAPITAL 9155552999 P.08/14 --, , (I) That 1b1a LeolllU1d the ]J11'_ intefCtl creltlld hmby am IInmodlfiod and. in full fbrce and effeClt (or. ifmDdifild. adequately idcDti~ such m.odl&atlon lI11d ce.rtlfylng thai thi$ Leue BnCl thl Jlarldnl JDt.ercst 8$ 10 modIfI4d are In filU 1brce BAd Ilffill:t)j (b) Whether or DOt to 01& knowledge ottbe Certifyinl party d1crc ill"')' material clefIult by tn hquDltlDi Par~ or tJIY O1her partY lD Ull! performance of lU:l)' !trrn, covlInarrt, condition, ~roYiliaA or agreDment coutai1ed In 1h1s Ltaao and i\Dthor whotbCll" Or nat them ore any ldORS, defenses OT CtJtU1lerC1.aJm! aaelast eft10rcemBnt afthl obl1aatkltU 1:0 bl ~llecS 1WW tbh Leue and. lftheN lire, apccif)ins..clt ~ material doflwt, 1Ctoff, dcfmao Dr clJUIJl:m:laimj IInd (c) Such other CDatterlIII 'lie l\;qucstlslg Partr m~y rell&ODIlbl)' nquen !n writin~. Any Illch sratcmCJl! m..y be ",lillS \21l0Jl by 811)' awm prospective purcb"C1r. mjpoc, aubtclUUrt, lmor Dr mOl'tllllllll of Il murtNc or beneficiary ot a doad otb'lW. The CcrtlfylDg Part)"1 fillure to deliver .uch ltallmen\: within eucb dmo sha.ll be deemed II ,latmlOllt that this Llln ;r; in full force and effiJct, without lliod1.ftcartolllDtcept at may be ...pre&e:aS*4 by 1he RequmiD& Party 14 Iu.ch ",qu,1Jt, and tha~ thc~ I&re: no unl:Uml mAterial do!nililin Cenif)'iJII Puty', W' RDqUcsting PIlrty', or IIDY lutb other party'r; perfOrmlJlCll. If a 'PII/'ticvlu R.equ.estlllg Ptlrty re~ue!ts mO!e than lwo ~ueh lltatomeDlS from Ii JHlrticular Certii)riU8 Party pit calendar )'W', .ueh Cert~lAe Part,y l1Iall b. euttUed to charse ,uoh P..quut1nS Party . reuofta.blo fuc to CDVer ita admln.l.s1nlt1vc coala in JlfI1'W; such statement. 17. Amen~Wt: CmTlplllte Atmlll!lllmt. All mnmdments BAd sqpplBm.lnlS 10 \bls L:ase must. ~ be VI wtltinllnc:l ftOD1Jtod by Loa&6T and LeIS'" ThJ~ LcrMc hu been cntere<i IntCl after ftlll iDYMliatitin oftboti.clB by bod1 parties awl neilbor PattY lw relied on ltIy l!tlltcmcnt or tqJmontluon not el'l\\odiod in thb do-;umeat, ntla ~ ltu bAn dnlfb:d through a joinlllfl'lnt or the )lWOflftd !heir cDunsel and IbeTlfore shall not be co~tI'\JIld IJ1 tavor oflitllGr of11\1 partiC!. 18. Oovcmin, LaW. This Leaae .hall be gDv&ItDCKl under thalllWi Dfthc State of California. 19, Oountp~1 He;,di1t1!l mul ~!'IlIld Terms. 'Tbb Leue may bcex.cultcS in Ilmal coumrparU mb ofwbleh aball be III criainlll, '\Nt In of 11J~ countcrpan. Ih.n constltute oue .uoh apemenT. Tile bllldtnp ualCl btnlnan: furuDnVOcimall only Ill\~ In not to be GCl'MtnI,d to 11~ p~ orthi~ Leau. Tho tmDB IlLos." and "Lusor" U ulld bensln sb~lllnoludo tbe pl\11'1l IS \WIl II lIngulID'. If nlore tbIIl ono pcnaan CIT entity ill Dl1l1.d U "LOIHO'. and/or 'l'le'lor" tIlf obllJlItlcm or alll:b pllflOU or c:ntitic~ lI'ojDlDt and sm:nl. 10. ~mlll.uaD>' ODe or more ofUlo provlliOlU oomalnlld. in thie LllllSC sballlor Ilny reuoll be held 10 be inwJid, iJlqaJ or UDmJforceablo in 1m)' ~gt, IUell Jnvalld1t)', llIeplit)' or unlnforceablllty ~J1a1l1\Dt ntfoct My othlft' proviBioD ~rcofand thlt Lwc shall b, QOQSwed ~ if *uch invalid, IUapl or unenfbrccable ))J;Ovillon had DeVer been c:onwned benln. NOlWlthI1andins anything conlalMd hoteiA to tht Clonll1lry. it In)' provilion of tbh Lease.15 held ll) be invalld, iUDpl or unenfOrceable, eacb JlIrtY to this Lease Iba1l have all nlhtJ and Jllmodios ut law or in 1Iq:l~ IIIpw"t dl.C othor ~ ilr tn.)' d.IIm,gelluftW~ by l\Ien party U. l'Uul1 Dr such holding, \ 2 J. ~~dftltlllll Dor:umtntl. Bacb paMy hclUO -amI to perform allY further llCts Ind to ~cutellld deUv,r MY fw1her documrmf:! which mlY be RIIIIIOnably neceUM)' to carry out lhc provisions ofthla L...". 22. AttomOY8' PaC!. n lSI1Y dOD or procccding ihall1x: brov.;ht by cilber park)' t'll oroer to cJlforce the pro't'irfonl' or1biJ LoaaD. or to colllDt d8maps .. . result or Ihe pnwlh of'my oftht provi$ions otthls lAuI. she pl'OY.1Una.p~ .han be enllilad to ",OOVIU' .11 reasonlblll com mcurtl!d in C".onneetion. therewlth, inelwlma T1Iuonable attorneys' fbcs, IN WITNESS WHEREOF, the Jlllrti~horc.o hllve ca~d thi, LllllU to be dul)' execuled as otche dare (lISt written above, CnAlIcod 1m ~"O/(C <1:11 I'M 4 ld w~s:Ge ~0ec sa 'lnr vL81 LoB Slt7 'ON 3NOHd , S3~3J~'a WO~3 . . . . . APR-28-2003 09:54 · ",': ~'MfW-20-2.a02 U.l/i)j NEWMARK REALTY CAPITAL 9165652999 P.09/14 ~ . " NEWM~K REl=L TV ~I TAL 9165G52Si99 P.I36-106 ~ ~, ,~ "Lessat" "Le!l:lela" Dori& J. C~DroS Tmn By' fJ~(LO~ J fJ/1V <€~ it /Iff ~ ff Titlo .. ~ /lI1 :2 c; ~ z., Date a; · CrRtclt on $I>>'Q:Z 4: II i"M 5 TClTCL P _ ra;; . . . ,,{ Town of Tiburon STAFF REPORT ~ ItW J~ AGENDA ITEM . . Il. . . . . " Il'. . . . . . . " . . . . . . " . " . . " " . . . . . . . . . . . . . . " . TO: Mayor and Members of the Town Council Pat Echols, Director of Public Worksl Town Engineer fk.-- FROM: SUBJECT: Proposed Relocation of Gallows Frame Wheels To Donahue Building Site l\L\ ~~~~~~~~~~~~U~~~7:~~O~......... .~~~~~~:~.. BACKGROUND AND DISCUSSION At the May 21. 2003 and July 16, 2003 Town Council meetings, the Belvedere- Tiburon Landmarks Society requested approval for their proposed relocation of the Gallows Frame Wheels from their present location in front of the Belvedere- Tiburon Public Library to a location adjacent to the Railroad-Ferry Museum (Donahue Building). The Town Council voted unanimously on July 16 to approve the relocation in concept pending submission of an acceptable design. Copies of the meeting minutes and staff reports are attached for reference (Exhibits 1 through 4). . The Landmarks Society's preferred site plan (Exhibit 5) is similar to the layout presented in 2003. The main difference is that the wheels would be placed in a tighter cluster near the rear comer of the building. A scale model and detailed description of the proposal will be provided by the Society as part of their presentation to the Town Council. A scaled mock-up of the wheels were placed at the site on August 11. The area is currently a grassy berm up to about 1 % feet high. A portion of the berm would be lowered to accommodate wheel placement such that the wheels would not project any higher than the current berm. The wheels would essentially lay flat and. river rocks (similar to those in the traffic circle at Ferry Plaza) will be placed among and around the wheels. Low growing New Zealand Flax plants (also known as Tiny Tiger) will also be incorporated into the layout. The plants do not exceed 12 inches in height (see Exhibit 6). Two other layout alternatives were considered by the Landmarks Society. Exhibit 7 depicts a wheel cluster set further back from the sidewalk. Exhibit 8 shows placement of the wheels in a vertical arrangement in the rip-rap along the shoreline behind the Donahue Building. Staff does not support this alternative for several reasons as described in a letter to the Landmarks Society dated July 26 (Exhibit 9). At previous public hearings on this matter, residents of the Point Tiburon Bayside Condominium Association objected to the proposal and asserted that the Point Tiburon Subdivision Improvement Agreement granted the Association veto power over any proposed improvements in Shoreline Park.. A copy of the agreement and the Town Attorney's memorandum (dated April 24, 2002) regarding it are attached as Exhibit 10. August 10. 2005 1of2 Town of Tiburon STAFF REPORT . AGENDA ITEM If approved by the Town Council, details for ground preparation and wheel placement would be coordinated with guidance from the Public Works Department. Staff estimates that relocation would cost up to several thousand dollars. A crane and large truck will likely be required to move and place the wheels. Other incidental costs include grading, soil compaction, base rock placement, preparing the wheels (rust removal and painting) and final ground cover details. The landmarks Society has indicated their commitment to provide the necessary funding for all costs associated with the relocation, including re-Iandscaping the area in front of the library after the wheels are removed. library Director Deborah Mazzolini has indicated that the library is not opposed to the removal of the wheels provided they have input in the re-Iandscaping details. RECOMMENDATION It is recommended that the Town Council take the following actions; 1. 2. 3. Receive a brief presentation from the Landmarks Society. Solicit public comments. Consider a motion to either approve or deny the Society's proposed design/layout for the Gallows Frame Wheels. . EXHIBITS 1 . May 21, 2003 staff report 2. May 21,2003 meeting minutes excerpt 3. July 16, 2003 staff report 4. July 16, 2003 meeting minutes excerpt 5. Site Plan (preferred alternative) 6. Plant details 7. Alternate site plan 8. Second alternate site plan 9. letter to landmarks Society 10. Town Attorney memo/subdivision agreement . August 10, 2005 2of2 ~ . Town of Tiburon STAFF REPORT . . AGENDA ITEM TO: Mayor and Members of the Town Council FROM: Pat Echols, Director of Public Worksl Town E,ngineer Proposed Relocation of Gallows Frame Wheels To Donahue Building Site SUBJECT: MEETING DATE: May 21, 2003 REVIEWED BY: BACKGROUND AND DISCUSSION At the May 13, 2003 Parks & Open Space Commission (POSC) meeting, the Belvedere- Tiburon Landmarks Society requested POSC support for their proposed relocation of the Gallows Frame Wheels from their present location in front of the Belvedere- Tiburon Public Library to a location adjacent to the Railroad-Ferry Musuem (Donahue Building). A concept plan of the Society's proposal is shown on Exhibit A. The Society's request had previously been referred as a courtesy to the Heritage & Arts Commission, as that Commission was responsible for the original placement of the wheels in their current location, The Heritage & Arts Commission recommended its approval of the relocation in concept. During public discussion at the pose meeting, representatives of the Point Tiburon Bayside Condominium Association expressed their opposition to the relocation on the basis of negative aesthetic impact to its residents. After receiving public comments, the POSC voted unanimously to recommend relocation to the Town Council. The POSC felt that the placement of the wheels were of historical significance and would be a complimentary amenity to the Museum site without creating any adverse view impact to ,Point Tiburon residents. A scale model and detailed description of the proposal will be provided by the Society as part of their presentation to the Town Council. Essentially the wheels would lie flat in a cluster immediately west of the Donahue Building. The area is currently a grassy berm up to about 1 % feet high. The berm would be lowered such that the wheels would not project any higher than the current berm. If approved by the Town Council, details for ground preparation and wheel placement would be coordinated with guidance from the Public Works Department. There have been no discussions to date regarding how the relocation will be funded and who would perform the work. A crane and large truck will likely be required to move and place the wheels. Other incidental costs include grading, soil compaction, base rock placement, and final ground cover details. (I", . . ~ . . t:: >Ct-h IS IT May 16, 2003 1 of 2 T own of Tiburon STAFF REPORT . AGENDA ITEM . . . . . . . . . . . . . .. . . . . . . . . . .. . . . .. .. . . . . . . . .. .. .. .. .. .. .. .. .. .. RECOMMENDATION It is recommended that the Town Council take the following actions; 1. Receive a brief presentation from the Landmarks Society 2. Solicit public comments 3. Consider a motion to either approve or deny the Society's request. If approved, provide direction to staff regarding funding and execution of the work. . . Subj act May 16, 2003 2 of 2 . . . 9. Request by Landmarks Society - Proposal to Relocate Gallows Wheels from the Belvedere-Tiburon Library to a Site Adjacent to the Donahue Building Director of Public Works/Town Engineer Echols said that both the Parks & Open Space Commission and Heritage & Arts Commission had expressed their support of the proposed relocation in concept. However, he said that residents of the Point Tiburon Bayside Homeowner's Association had said there would be a negative aesthetic impact if the wheels were placed in the proposed site adjacent to the Donahue Building. Mr. Echols said that while an exact plan h~d not yet been determined, it was contemplated that a small berm east of the building would be flattened which would result in not net increase of any kind in height if the wheels were placed in that location. In response to a question from Mayor Slavitz, Echols said this proposal had been advanced by Town Staff but that the Town had not been asked to become involved in any of the actual logistical planning for the actual relocation, or to bear any of the cost. Vice Mayor Fredericks asked about any potential liability to the Town if the wheels were placed in that location. Town Attorney Danforth said that the Town had been told that the placement would be as stable as the current one (adjacent to the Library), so that the consequence of moving the wheels to a new site would be nearly the same. Councilmember Berger said he would like to see the installation kept "clean" and free of landscape intrusion. Janice Anderson-Gram, representing the Landmarks Society, said that for the last 30 years, the Society had acquired properties of historical significance and had offered them for public use. She said that the Board had voted to pursue relocation of the six castiron pulley wheels which had been part of the gallows frame in downtown Tiburon back to their original historical site. Ms. Anderson-Gram said that the wheels had been donated to the Town by the Northwest Pacific Railroad when the frame was dismantled in 1974, and were eventually placed at the comer of Mar West Street and Tiburon Boulevard. According to Ms. Anderson-Gram, the Parks & Open Space Commission had recommended that the Landmark's Society meet with members of the Point Tiburon Board to explore alternative sites. She outlined the attempts of the Society to meet with the Board since the beginning of the year. However, she said that she was told that some members would vote against relocating the wheels to any site on the Waterfront Park. Ms. Anderson-Gram said that one alternate site that had been 'identified was in the back of the Donahue Building (facing the Bay). She said that the space was more narrow and because of that it would be difficult and expensive to mount the wheels in a vertical position in that location. Town Council Minutes # 9-2003 May 21,2003 Page 4 f.XH dstl ;L / She said that the Commission thought it would be safer to place the wheels in a flat configurati on. . Ms. Anderson-Gram also said that the Commissioners had described the wheels as an "important art form of our industrial heritage." I Mayor Slavitz asked whether the proposed configuration of the wheels would be similar to the one in its existing location at the Library. Ms. Anderson-Gram replied that the wheels would be placed "absolutely flat" in the proposed site adjacent to the Donahue Building (as opposed to being "stacked" in their current location), and that the ones with axels would probably be cemented in the ground which would result in great stability. Ms. Anderson-Gram said that only one axel would be 12 - 16 inches higher than the current berm. She said that the installation would be on a kind ofturnaround configuration, perhaps with river rocks. The aforementioned alternate site contemplated mounting the wheels on a steel frame at the back of the building. Ms. Anderson-Gram said that the first site would be more complementary to the railroad museum (Donahue Building). Ms. Anderson-Gram also described a proposed treatment of the wheels (wire brushing and the addition of a protective coating) prior to their relocation. Mayor Slavitz asked whether the Society would maintain the installation. Ms. Anderson-Gram said yes, but thatthe proposed installation would not require the same level of maintenance as . the park if the wheels were placed on a rock surface. . Councilmember Berger said that he had heard from interested residents that it was important to maintain the "green" look of the park and asked whether the Society would be amenable to continuing that surface. Ms. Anderson-Gram replied affirmatively but also noted that the grass area already terminated at the parking lot adjacent to where the wheels would be placed. She added that the cars parked in that lot were a higher elevation than the wheels would be at that location. She said that a number of plant choices no higher than 12 inches had been contemplated to surround the river rock border. And in response to a question from the Vice Mayor about safety, Ms. Anderson-Gram said that the Parks & Open Space Commission had said that they would probably be safer than climbing on the sea wall in that location. Mayor Slavitz opened the public hearing. Jay Key, Point Tiburon resident, suggested not moving all of the wheels from their current ;location, and to find an alternate site forthem. He said that he had appeared before the Council on previous occasions to oppose projects that would have a negative impact on the waterfront park and the residents of Point Tiburon (the proposed cutting of the trees in front of Guaymas Town Council Minutes # 9-2003 . May 21,2003 Page 5 . . . . in the planning phases of the ferry plaza reconstruction, and a floating dock proposed by Blue & Gold Fleet that would extepd into the Bay). Mr. Key said that while view impact was not the main concern of the Point Tiburon residents, seven or eight units in fact looked down on the proposed site. He said that the wheels were so big that the proposed site would be a third as large as the ferry plaza itself and said that all of the berm would have to be removed to accommodate them. He suggested placing some of th~ wheels behind theponahue Building and some at Blackie's Pasture at the site of the old railroad trestle. Mr. Key also stated that the 1984 [subdivision] agreement envisioned discussions between the Town and Point Tiburon residents regarding any future changes to the waterfront park. He suggested that Council table any B;ction until alternatives could be discussed. Council asked questions of Mr. Key about the views from the affected units. Councilmember Gram suggested a site visit so that Council could.see the vistas first-hand. Steve Wanat, 17-year resident, Mar West Street, said that he was an architect and urban designer. He said that the wheels were not meant to lie flat and that the Town should "make more of the instaIlation rather than less." He said that he recalled the architect of the Point Tiburon subdivision trying to get the Donahue Building moved, as well. Delli Woodring, 1912 Mar West, member of Landmarks Society and acting President of Point Tiburon Bayside, said that the drawing distributed by the proponents was misleading as to the size of the wheels and location. She said that just the wheels alone would cover 304 square feet. Ms. Woodring said that the Innisfree Company (developer of Point Tiburon) had given the Town $10 million for improvements which had resulted in the Shoreline Park and walking. path, a 66 inch storm drain, the installation of rip rap along the shoreline, and traffic lights to Highway 10 1. She said that the owners of each unit at Point Tiburon (except for the below market rate units) were assessed $1,480 per year through 2008 to pay for these improvements. She asked the Council not to make any changes to the dedicated "serene" park and that the 1984 agreement said that no changes would be made without the agreement of the Point Tiburon residents. Ms. Woodring submitted petitions to the Town Clerk opposing the relocation of the railroad wheels to the Shoreline Park. Piper Berger, Landmarks Society archivist, said she supported all efforts to bring the wheels back to a location in context with their historical significance (at the railroad building). Bill Ziegler, attorney for the Innisfree Company, and author of the aforementioned 1984 [Subdivision Improvement] agreement, gave his opinion. He said as a former [Sausalito] city Town Council Minutes # 9-2003 May 21,2003 Page 6 council member that he was sympathetic to the position of the Council; however, he said that . the Council was in a "trustee" position and that the property was not simply an outright gift. Mr. Ziegler said that the final [Subdivision Improvement] agreement was the result of a serious and long negotiation and that no one issue was discussed more than the Shoreline Park. Mr. Ziegler also stated that the landscape plan for the area was carefully negotiated in detail and that the pertinent sentence in the agreement stated that "no additional structures other than complementary facilities shall be constructed by the Town" unless agreed upon by all the parties. He said he recalled a meeting in which the Town had asked to place a gazebo on the Waterfront Park for information purposes; this had been turned down. Council asked the Town Attorney for her interpretation of the terms of the agreement pertaining to "complementary facilities." Town Attorney Danforth said that she could not disagree with Mr. Ziegler who had been present during the negotiations. However, she said that "words are what we live by," and.the parties to the agreement are bound by the text of that agreement. In her opinion, Ms. Danforth said that a gazebo was a structure that would be an obstruction and could not be installed without the permission of the Pt. Tiburon Board. This did not mean that thePt. TiburonBoard had the right to approve any visible change to Shoreline Park. However, Danforth said it was difficult to define a "complementary facility" and posed the question of whether it would extend to such structures as bike racks and benches. She said that the gallows wheels installation would not be inconsistent with the Town's definition of open space use, and ifit was not a view issue, then the questi on of whether or not it would be "complementary" remained unanswered (by definition). . Councilmember Thompson said that he recalled a voter referendum regarding the Donahue Building. He said that Town residents voted to "leave it there" precisely because it was complementary, due to its historic significance. Mr. Ziegler said that at the time of execution of the 1984 agreement, no decision had been made regarding the [location of the] Donahue Building. He said' that he agreed that the gallows wheels would be complementary to the building but not to the Shoreline Park. Town Attorney Danforth said that she was glad to hear him say that the wheels would be complementary to the museum which would leave the decision as to whether the location was suitable up to the Town Council. Councilmember Gram said that two issues had been presented--aesthetic and legal. He asked Mr. Ziegler which issue he was attempting to bring forward. Gram said that because the agreement allowed the installation of "complementary facilities," the Council should stick to deciding the aesthetics of whether the installation was a "complementary facility." Town Council Minutes # 9-2003 May 21,2003 Page 7 . . . . Philip Richardson, Greenwood Beach Road, said that the wheels should be placed in a vertical position to reflect their original use and encouraged Council to find a place to do that. He said he also could envision some sort of "kinetic sculpture." Ms. Woodring said that she walked the Shoreline Park path every day and that the consensus of people she met there were in favor of maintaining the "sweeping blend of grass and water" (without obstruction). She reiterated her remarks that the wheels would also pose a safety hazard for children if they lay flat and suggested that they be mounted elsewhere in a vertical position. E.C. Grayson, Pt. Tiburon Bayside Board of Directors, concurred with this remark. He said that as aformer Assistant Secretary of the Navy, he had seen numerous tort claims arising from accidents which had occurred on the retired planes given by the Navy to municipalities across the.country. Dennis Ciocca, Paradise Drive, invited the Council to view the proposed site from the ground level unit owned by he and his wife at Pt. Tiburon. Ciocca said that while they were also members of the Landmarks Society, they had not heard a discussion of finances for the proposed relocation and wondered why they were being told that the alternate site was not financially feasible. Mr. Ciocca said that the grassy areas of Shoreline Park were used as picnic sites by families and should be left alone. William Dunlay, 304 Paradise Drive, who said he was the newest member of the Pt. Tiburon Board, said that the Board expected the Landmarks to bring the matter back to them for further discussion of alternate sites before it went to Council. He said that he thought the massive wheels would become an eyesore and recommended finding another location for them. Phil Cassou, President of Landmark's Society, agreed that the group was trying to find a suitable place and a presentation that would not endanger children. He said that the gallows wheels represented the "industrial riature" of the Tiburon Peninsula and that the Society was trying to bring the pieces of that history together in an appropriate setting. r" Iri response to questions from Council, Mr. Cassou said that he could layout cardboard models . of the wheels for Council's view. He also said that he could "tape off" the affected area in question. Susan Wolf, 412 Paradise Drive, said she liked the wheels in their current location and did not envision them on the Shoreline Park. She said it was not just the residents of Pt. Tiburon who felt this way and she asked the Council to "protect our treasure" and keep the "splendor of the Bay and green grass." Ms. Wolf said she concurred with those speakers who had sllggested an alternate site at Blackie' s Pasture. Mayor Slavitz closed the public hearing. Town Council Minutes # 9-2003 May 21,2003 Page 8 Councilmember Thompson said that while he was happy to explore other site solutions, except . for Blackie' s Pasture, he thought the Donahue Building was where the wheels belonged. However, he thought that landscape should be kept at a minimum and he wanted to view the site from the units at Pt. Tiburon prior to making a decision. Thompson .said he thought other solutions might be to not use all of the wheels or have them coming out of the ground in some fashion. He said that he thought a sculpture would be problematic. Vice Mayor Fredericks said that the Library recognized that relocation of the wheels was the Town's decisions. However, she said that individual members of the Board had expressed two different opinions about the relocation, with some members favoring their current location at Mar West Street marking the "entrance" to downtown, and others favoring their relocation to the Donahue Building. In addition to aesthetics, the Vice Mayor said that the other question for the Council to consider was whether it wanted to "give up" 1200 square feet of grassy area at the Shoreline Park. Councilmember Gram gave Mr. Key credit for being right about the ferry dock and plaza issues mentioned previously. He agreed with Councilmember Thompson that the wheels would be complementary to the museum; however, Gram said he wanted to see aesthetically how it would affect the units at Pt. Tiburon. CouncilmemberBerger said that he was mindful of the fact that the wheels would be more accessible to children playing on them in the proposed location than at the library location. He said a reconstruction of the gallow.s frame would be fantastic but also agreed that it was . important to look at the site from the point of view of the residents at Pt. Tiburon. . Berger reflected on the decision to place a gazebo at Blackie's Pasture and said that he was never certain about the "rightness" .of that decision. He concurred with others regarding the importance of ensuring that the "sweeping beauty" of the Shoreline Park was not hurt by the) placement of the wheels. Councilmember Berger, who stated that he was married to the Landmark's Society archivist, Piper Berger, said that he thought the relocation of the wheels to their historic context made sense but that the placement needed "aesthetic meaning," as well. Berger said that if wheels could be placed in an overlapping manner, they would take up less space; he said he was not certain where else they could go. Mayor Slavitz concurred with the comments of his fellow Councilmembers. He said that liked the idea of a mock-up proposed by Mr. Cassou, which he said should be installed before the Council made a visit to the site. The Mayor said that past legal issues should be put aside; that more communication was needed with the residents ofPt. Tiburon about the proposed placement on the Waterfront Park, as well as continuing to explore alternate sites. Town Council Minutes # 9-2003 May 21,2003 Page 9 . . . . MOTION: Moved: Vote: ,. To continue the matter to the July 16,2003 meeting in order to allow the Council tovisitthePt. Tiburon units and to view a mock-:-up of the lay-out of the gallows wheels at the Donahue Building. Berger, seconded by Fredericks AYES: Unanimous . Town of Tiburon STAFF REPORT . . AGENDA ITEM TO: Mayor and Members of the Town Council Pat Echols, Director of Public Worksl Town Engineer Proposed Relocation of Gallows Frame Wheels To Donahue Building Site FROM: SUBJECT: MEETING DATE: July 16, 2003 REVIEWED BY: BACKGROUND AND DISCUSSION At the May 21, 2003 Town Council meeting, the Belvedere-Tiburon Landmarks Society presented a proposal to relocate the Gallows Frame Wheels from their present location in front of the Belvedere- Tiburon Public Library to a location adjacent to the Railroad-Ferry Museum (Donahue Building). A copy of the staff report and excerpts from the meeting minutes are attached (Exhibits A & B). The Society's request had previously been referred as a courtesy to the Heritage & Arts Commission, as that Commission was responsible for the original placement of the wheels in their current location. The Heritage & Arts Commission recommended its approval of the relocation in concept. The proposal was also presented to the Parks & Open Space Commission (POSC) at their May 13 meeting. The POSC voted unanimously to recommend relocation to the Town Council. The POSC felt that the plaGement of the wheels were of historical significance and would be a complimentary amenity to the Museum site. A scale model and detailed description of the proposal was provided by the Society as part of their presentation to the Town Council. After receiving the proposal and public comments, the Council chose to continue the matter to July 16 meeting in order to' provide Council members an opportunity to visit several units of the Pt. Tiburon condominium and view a mock-up of the wheels. RECOMMENDATION It is recommended that the Town Council take the following actions; 1. Receive a presentation from the Landmarks Society 2. Solicit public comments 3. Consider a motion to either approve or deny the Society's request. EXHIBITS A. Staff report from May 21, 2003 Town Council meeting B. Excerpts from May 21, 2003 Town Council meeting J E '1--1-/ 16L T 3 July 10, 2003 1 of 1 . . . Councilmember Gram said that he had heard very positive comme from the community about the service provided by Mill Valley Refuse and that, overall, th company was doing a good job. Mayor Slavitz and Vice Mayor Fredericks both indica that the purpose of starting the clock running on the franchise agreement was a matter emonstrating accountability to the constituents in its [the Council's] manageme fpublic funds. Mayor Slavitz also said that the two ght percent back- to-back rate increases over the next two years had raised questions for t ouncil and the community. However, he agreed that it would be appropriate to discuss th issues in more detail prior to taking further action. . Councilmember Ber r concurred, and stated that it would be better for the Town not to be "locked into" an tomatically renewing 10-year contract. Council . ected the Town Manager to continue the discussions with the franchise service; Mayo lavitz said he would join the Town Manager in the discussions. REGULAR AGENDA 10. Recommendation by Landmarks Society - Proposed Relocation of Gallows Frame Wheels from the Belvedere- Tiburon Library to Donahue Building Site The Council heard a recap from Landmarks Society representative Janice Anderson-Gram and President Phil Cassou, followed by public testimony. Ms. Anderson-Gram said that the Landmark's Society had considered a proposal from the Pt. Tiburon Bayside Homeowner's Association at its July board meeting,'but had concluded that it would be "historically inappropriate" to place the gallows wheels in the ground for use as a bike rack [as one of the proposed design features]. Ms. Anderson-Gram also said that her research had shown that many other museums around the country featured historical artifacts near their entrances and she recommended that the Council approve the proposed location adjacent to the entry of the Donahue Building (railroad museum). Furthermore, Ms. Anderson-Gram said that the Society had originally proposed placing the wheels in a flat configuration to alleviate Pt. Tiburon's concerns regarding view blockage. Anderson-Gram said that since view impact might no longer be at issue, she said the Society now proposed stacking the wheels [two] on top of each other which would not exceed a height of 13 inches. Ms. Anderson-Gram asked that the Council vote to approve the Landmark's proposal to relocate the wheels, a recommendation that had been unanimously approved by both the Town's Heritage Town Council Minutes # 12-2003 July 16, 2003 Page 4 fMIJSlT .~ .: & Arts Commission and Parks and Open Space Commission. She said the relocation would not . only enhance the historic natUre of the museum but would be demonstrate a sense of pride in the Town's railroad heritage. Councilmember Berger asked what the Society's position was on the use of all the wheels in the proposed configuration. In other words, Berger,asked, would fewer wheels suffice? Ms. Anderson-Gram replied that the Board felt that breaking up the group would jeopardize the "historical integrity" of the installation. She said it was the strong opinion of the Board to install the wheels "as if the [gallows] frame had been dismantled the day before." Councilmember Berger asked if any changes to the design had been made after discussion with the Bayside Homeowners' Association Board. Ms. Anderson-Gram reiterated.that the "stacked versus flat" proposal. Vice Mayor Fredericks said she thought that the hubs of the larger wheels would "stick up" 12- 16 inches. Ms. Anderson-Gram said that these large, nine-foot wheels would have to be placed at the bottom of the stack. In response to questions from Mayor Slavitz, Landmarks' Society President Cassou described possible landscape features, including a concrete slab with river rocks for placement of the wheels, possibly interspersed with plants, and a hedge surrounding the installation. The dimensions of the wheels in a flat configuration (versus stacked) would be 340 square feet and . with the addition of a hedge, he estimated coverage of 420 square feet. He said the overlapped configuration with a hedge border would reduce the square footage to 305 square feet. Councilmember Berger asked Mr. Cassou whether the wheels ever "worked that way," meaning in a stacked configuration. Mr. Cassou said that, in fact, some of the wheels had been on a concentric axel. Mayor Slavitz asked whether Landmarks.had considered a vertical placement of the wheels. Mr. Cassou said that it would have more of a "wild west look" and that a potential view issue would remain if the smaller wheels came out of the ground at least two and a half feet and the larger wheels would be at least four and a half feet tall (out of the ground). Vice Mayor Fredericks asked if the installation proposed by the Landmarks' Society would be below the height of the current berm. Mr. Cassou said that it would be below the height of the [adjacent] sidewalk. . Finally, the Vice Mayor asked who would pay for the proposed relocation, and whether the Landmark's Society would raise the funds to move the wheels and do the installation. She asked. Mr. Cassou whether he would "be comfortable with" a condition of approval that the project would be delayed until funds were identified. He responded affirmatively to the question. Town Council Minutes # 12-2003 July 16, 2003 Page 5' . . . . Mayor Slavitz opened the public hearing. The following people spoke: J. Key, 167 Paradise Drive, said that removal ~nd replacement of the berm would result in 200- 300 additional square feet of concrete in the area. He asked the Council not to destroy the "beautiful.berm. " Mr. Key said it made no difference to the [Bayside] Bqard if the wheels were stacked or not, but that the Bayside Board had come up with some alternate design proposals for the installation which would place the larger wheels "strategically" around the Donahue Building, on the side and in the back. He presented several visual representations of these proposals to the Council and the audience for review. Mr. Key restated his understanding of the Pt. Tiburon Subdivision Improvement Agreement provision that the Shoreline Park was "never to be changed" unless Pt. Tiburon had "equal say" with the Town in those changes. He said that "we don't like the Landmark's Society plan in its current form," and suggested that Council only agree to allow the wheels to be moved "in a way that works for us." He asked Council not to accept the proposal in its current form and to direct the"Landmark's Society to sit down with the Pt. Tiburon Board to come up with a mutually acceptable solution. Mr. Key also st~ted the Board's concern regarding safety issues if the wheels were placed in the park. Janet Braff, Chair of the Heritage & Arts Commission from 1988-1995, said she oversaw the installation of the wheels in their current location during the widening of Highway 131 in .1990. She said that this installation, marking the "entrance" to downtown Tiburon, had received a "glowing review" by the Landmarks Society at the time. Ms. Braff said she would prefer that the wheels remain in their current location, especially if the Landmark's Society were planning to house its archives at the Library in the future. She said that the "history of the Town can be reflected in more than one location." Susan Wolf, 412 Paradise Drive, concurred with Ms. Braff's comments. She also said that she found the lack of a plan to finance the relocation both "disturbing and perplexing." Beverly Bastian, current Project Director of the Landmark's Society, said that "considerable misinformation" had been disseminated about this proposal. She said that the Society had "no expectation" and "no commitment" to move its archives to the Library; she said that Pt. Tiburon had "participated in" the creation of but were not the only ones to pay for the Shoreline Park; that Pt. Tiburon would not exist without the creation of the redevelopment district and the oversight of an "astute" City Manager; and that all the other special districts in town had givenup their tax rights to the property. Town Council Minutes # 12-2003 July 16, 2003 Page 6 Ms. Bastian said that it was not practical to put the gallows frame back up, so the use of the wheels as "rustic relics" was the proper way to proceed; that turning them into a bike rack was . "trying to make something look like something it isn't;" and that she was opposed to putting them behind the building. Finally, Ms. Bastian said that the Landmark's Society had "always managed to solve our financial problems," and that the cost issue should not be of concern to the Councilor community. Tom McClintock, Pt. Tiburon homeowner, said he was concerned about a precedent being set if the wheels were placed in the park and wondered what else might follow over the years. Bran Fanning, Town Historian, Town Mayor in 1974, gave his recollection onwhat-happened when the gallows frame was dismantled and how the wheels had been saved by the Town. He said that regardless of where they ended up, a bigger plaque was needed with a photograph describing what they were and their historical context. Delli Woodring, President ofthe Pt. Tiburon Bayside Homeowner's Association, said that many hours had been spent by both Boards on this issue. She said that the Landmark's Society Board had "turned down" the Pt. Tiburon Board's ideas without first seeing the drawings and that that Board had rejected all other alternate locations for the wheels, such as a) the Dow~town Fountain Plaza, b) the "anchor" turnaround at the corner of Tiburon Boulevard and Paradise Drive, and c) on the Multi-Use Path near the railroad trestle at Blackie's Pasture. . Ms. Woodring said that neither the Town nor the Library had initiated the proposed relocation and suggested that it was in the interest of the Landmark's Society and not the Town as a whole. She said the Pt. Tiburon Board would not interfere with the relocation if it were anywhere but Shoreline Park. Richard Gray, Pt. Tiburon resident, said that he was against the relocation which had only "modest" historical benefit, in his estimation, and was more of an "academic exercise." He said he had been curious about the wheels when he first moved to Town and had gone to see them in their current location. He recommended leaving them there. Mayor Slavitz closed the public hearing. Vice Mayor Fredericks delineated some of her comments and concerns: . Legally, Pt. Tiburon holds no veto power over the placement of the wheels. in Shoreline Park; '. There appeared to be no impact on the water views from Pt. Tiburon; . The placement of the wheels was a matter of aesthetics about which they are different OpInIOnS; Town Council Minutes # 12-2003 July 16, 2003 Page 7 . . . . . The wheels are compatible with the site which is where the depot and other railroad memorabilia is located; . The decision-making process belongs to the Council and the Library wants to be left out of it (as to the proposed relocation); . The proposed relocation would complement the museum and she could not see the impact of such an installation after visiting the units at Pt. Tiburon. Councilmember Berger said that he understood the concerns of the Pt. Tiburon property owners after visiting their units and seeing how beautifully appointed their homes were and what care they took in maintaining them. But he said he had concluded that the Donahue Building was the proper location for the wheels and that they would add to the importance and enhancement of the museum itself. Berger said he had asked himself whether the installation itself would be an enhancement to the views ofPt. Tiburon and said that he concluded that tlle existing "green swath" would be better. Nevertheless, Mr. Berger said that the relocation would be a benefit to the Town as a whole (but not necessarily to that particular group of homeowners). Councilmember Berger said that he could not easily see the location of the proposed installation . from the units that he had visited. He stated that he would be willing to approve the ~dea of the relocation and the location itself but not the design, as presented. The Councilman said that his 10 years of experience serving on the Design Review Board and Planning Commissiori had led him to conclude that the same kind of factual information (height, elevations, plans, landscaping, etc.) should be brought forward by the Landmarks' Society for Council's consideration. . In addition, Berger said that he would like "to see another pass at collaboration" between the two groups (Landmarks' Society and Pt. Tiburon Board) on improving upon the design. CouncilmemberGram said that he could see the site of the proposed installation from two of the units he visited and from the others, it could be seen from their decks. He noted that one of the unit's owners said that he was in favor of the project. Gram said that property values would not be adversely affected by the installation. He said that seven weeks had passed since the last time the Council discussed the issue and there was still not agreement between Pt. Tiburon and the Landmarks' Society on a design. He reiterated that the Town would not pay for the relocation and that it was the responsibility of the Society. He recommended that they not move forward until the money was secured. Councilmember Gram said that he had agreed with Pt. Tiburon on past issues but not on this one; he said that the proposed installation in the Shoreline Park location was a questions of aesthetics which fit into the exception contained in the [Subdivision Improvement] agreement. Town Council Minutes # 12-2003 July 16, 2003 Page 8 Finally, Councilmember Gram said that he respected the unanimous recommendations concerning the proposal.from two Town Commissions and said he would vote in favor of the relocation to the proposed site, with an appropriate design. . Mayor Slavitz said it was a great ideato move the gallows wheels to the depot location. He said that he too h'ad visited the Pt. Tiburon condominiums and had concluded that there was no view obstruction. But he said the issue in his mind was what to do with the "green space" which was part of a park and asked whether it was "the right thing to do" to pour cement over it and put up shrubs. He said that the current design proposed by the Landmark's Society did not enhance this [park] idea and said that other designs would be better which could maintain that space as it was. Mayor Slavitz said that the Landmarks' Society had done an incredible job in preserving the history of the peninsula through their many projects. He said he was certain tliey could raise the money for this one. However, the Mayor said this particular project had not brought people together like past projects had, and that while the current design proposal was "doable," it needed a lot more discussion. CouncilmemberBerger reiterated his suggestion that the proposal come back for final approval by the Council with the following criteria, similar to a Design Review Board application: . Plans drawn to scale [with a definitive lay-out of the wheels] .' List species of plants . List type of rock, size and material . Have a sample board . Discuss whether or not the project would be lit . Describe the placement process (grading, etc.) . Moved: Vote: To approve the relocation in concept but delay final approval pending submission of an acceptable design [using the above criteria] and further discussion with Pt. Tiburon homeowners. Fredericks, seconded by Berger AYES: Unanimous' ABSENT: Thompson MOTION: 11. Reco' endation by Parks & Open Space Commission - Application for Removal of Trees alo Tiburon Boulevard in the Vicinity of Blackie's Pasture Planning Manager Watrous gave report, stating that the application for removal of trees was the first one reviewed under the new t n policy concerning trees on public property. If the Council were to approve this application, . Watrous recommended that it do so in a manner that would limit the possibility of an "open sea " on [removal of] trees on public property. Town Council Minutes # 12-2003 July 16, 2003 Page 9 . '.... 'i" \ "\'0 '~'- ) !!': '\ 1. :1" .q " \ ;;i'\. \: "'.\ '\ ,. ,'\. ',)\, .. , .. ,.0 '\, . ;\ ~ 'rn<3 :1" 1 l'9 . ,~.-, ,:'. c' ," . _.' "(;,j}M,~,~.tj~Nt;!f. Agavaceae PERENNIALS ." ZONES 7-9,14-24; H1, H2; REGROW AFTER FREEZES IN ZONES 5, 6 :Q:;~ FULL SUN OR PARTIAL SHADE o Q . liTTLE TO REGULAR WATER . From New Zealand. Dramatic plantS with many swordlike evergreen leaves that grow in a fan pattern; make good garden focal points. The many variegated selections provide year-round color in perennial and shrub borders, on hillsides, in seaside plantings, near swimming pools. Cool weather intensifies foliage colors. On established plants, branched clusters of tubular flowers appear in late spring or early summer, rising to twice the height of the foliage clump in some kinds. Rugged P. tenox varieties are sturdy and fast growing. They take almost any soil, little to regular watering, hot or chilly conditions; do well at sea- coast. They will take poor drainage to a point; crown rot can be a problem if they are planted too low' in poorly drained soil. Rigid, upright leaves seldom sunburn, even on variegated kinds with light-colored wriegation. Subject to summer rot in low desert, but replacement plants set out in fall will grow quickly. Use as windbreak along coast; grow in containers wher- ever soil doesn't freeze in winter. More finicky than P. tenax are forms of P. cookianium and the spectacular hybrids between P. cookiflnUm and P. tenox. To thrive, they require a bit more water; in hot areas, their arching leaves need afternoon shade to prevent burning. P. tenox, P. cookianum, and their foms and hybrids are all harmed by temperatures below 20oF/-70C. In cold-winter areas, you can grow smaller. sorts indoors or move larger containers to shelter when deep cold threatens. Phormium tenax 'Variegatum' ..ip.,!(~~~~:'i,N~xyl~.~;\V8!~I)jiFy.y~;;'!Ulrge, bold plant with bronzy. gree? leaves to 91'1. lung, 5 in. wide; rigid and mainly upright, curving mainly (if at all) near tips. Mature clumps are about as wide as or a little wider than high. Vertical inflorescences-often to twice the height of foliage clump- contain many dull red or reddish orange flowers; seedpods are twisted but held erect. Many choices, offering great variety in plant size and leaf color. Note that bronze-leafed varieties take on a deeper color in full sun. 'Tinv 1 1'1. hi~h . 6XJ{t€'c-( .h .. ,\' ''') 0\...."...' ~ ;\ - -.' \; \., '," :1.;', ;'~'.. ,. -.: .'\:. ~~.:_, \" , ;1;\. ,,~'t \. t "">.", \; ;:: . .... .. ,.; ,.', ,\'~ i'.J.,; . \ ~ ,Ii, ,II;' o,~; . \':.:.,. .".' \, \ " '\.:' ~.::. "~: l' "".r"';',..!:; .;~ ! ,I" t , ".r \."'\ '. ,:~ ~ ! ~ ' ... r ,~ "~ ~\;';;J .;' ~~~;': "",. ..,~ .... u''J,'' .....:;..~ :iP~~i";r \. J~~~'\ " { j , . . l' '! ~t;~ ,<' I L., )';';." .';"'.i'-".,'.. ..' f . /'., ,; ......... I' (' j r ) / ,,/..--/! ' ,..I j. ) ~f " . " :" ..y. ,('./ r "...: " .... ,) ..,) .' .("'1: /./ i ,'.:,/: ),/ '.. '" ,X"" ~ ",-,r . . ;d~"~~~" .' //"/'/ i'; . "f .:: . .;,.. ,.... '. /'. .>:f .l"'" . ", . .r:i' ._.,.r ',,' ~". ~;~....;r<. ,/.- -.' . . ..,~" ~ ,,"; \." " r<' J" . z;:::. ,/" '" "I" ..j,,',/" j ..". . "~~:~'f:- { ','<;' -:../.' . "." .". ,~. ' /:'.f' /' " EXJ-Hf?,l{ r; I "1(," g l 1 ~ IH)<:::j -- - !l:it~ ~~ ~\ ., Town ofTiburon. 1505 TiburonBoulevard ..Tiburon, CA 94920. P. 415.435.7373 F. 415.435.2438. www.ci.tiburon.ca.us OFFICE OFTHE TOWN ENGINEER . PatrickF. Echols, P.E. July 26, 2005 Janice Anderson-Gram Belvedere- Tiburon Landmarks Society PO Box 134 Belvedere- Tiburon, CA 94920 RE: Proposed Gallows Frame Wheels Relocation at Shoreline Park Dear Janice: This letter serves as a follow-up to our July 8 meeting regarding the relocation of the Gallows Frame Wheels (currently located in front of the Belvedere- Tiburon Library) to Shoreline Park (adjacent to the Donahue building). As proposed, the wheels would be located dose together and lie flush with the ground surface. You asked whether the wheels could be installed within the rip-rap along the shoreline or upright behind the Donahue building and what concerns the Town would have with such installations. I cannot support placing the wheels in any Configuration within the rip-rap. Anchoring/securing the wheels would be very difficult and they would be vulnerable to becoming dislodged by wave forces. They would also be subject to severe corrosion .compared to an on-shore location. It is likely that the Bay Conservation and Development Commission (BCDC) would want to review such a proposal since it would fall within their jurisdiction and I believe they will have similar concerns. The Town's liability exposure would likely be greater as the wheels would pose a more dangerous condition (whether the wheels were placed upright or not) and constitute an attractive nuisance. Finally, the level of maintenance effort would be greater if the wheels were to be .Iocated in the rip-rap rather than adjacent to the Donahue building (re-securing anchorages, re-painting, etc.). Regarding placement of the wheels, upright behind the building, my main concerns would be safety and stability. The wheels are extremely heavy and would require deep foundations to resist earthquake forces given the soil conditions in this area. Foundation costs would likely be prohibitive. I also believe that such an installation would invite climbing and pose increase the Town's liability exposure. Feel free to call me if you have any further'questions regarding this matter; Sincerely, ~ Pat Echols Director of Public WorkslTown Engineer .: Tony lacopi, Deputy Director of Public Works EYJ4 I r.;s L~ cr " ,fl. . /J. !Il q)v ~ \ . Town of Tiburon MEMORANDUM TO: FROM: SUBJECT: MAYOR AND TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY POINT TIBURON SUBDIVISION IMPROVEMENT AGREEMENT April 24, 2002 DATE: ..... .... ............... ... ........... BACKGROUND AND SUMMARY . The Town is considering a proposal to move the railroad wheels currently located near the library to a site near the Donohue Building. Some residents of the Point Tiburon have obj ected, asserting that they have the power to veto any proposed improvements of Shoreline Park or anyuse of the Donohue Building. See attached letter from attorney David F. Feingold representing the Point Tiburon Bayside Condominium Association ("Association"). The CoUncil accordingly requested a copy of the Subdivision Improvement'Agreement, which Mr. Feingold says is the source of his client's rights with respect to Shoreline Park and the Donohue Building. I have attached a copy of the Agreement in question. The relevant restrictions on the use of Shoreline Park and the Donohue Building are set forth in Section l(d), on pages 2-3. This section includes a prohibition on obstructions to the view corridor without permission of the Association. This is the only "veto power" granted to the A ., 1 ssoclatIon. Section l(d) allows the Town to make specific improvements to Shoreline Park, including landscaping, irrigation and a pedestrian and bicycle pathway. No other structures, other than complimentary, are permitted. The Town is allowed to use and maintain the Donohue Building as a public museum and uses customarily incident thereto. Any other use requires permission of the subdivider.2 I am informed that the railroad wheels would not obstruct the' views of the Point Tiburon residents. Accordingly, they do not appear to fall under the Association "veto power" established by Section led) ofthe Agreement. The other prohibitions of that section also seem inapplicable. The total height of the wheels is under two feet, . 1 The power is actually granted to the "Point Tiburon Waterfront Condominium Owners Association" or their successors in interest. For purposes ofthis memorandum, I assume that the Point Tiburon Bayside Condominium Association is the lawful successor in interest to the Point Tiburon Waterfront Condominium Owners Association, but we will need to verify this point should this controversy ripen into a legal dispute between the Town and the Association. 2 It is likely that the Association has succeeded to the subdivider's rights under this sectio~ but that is another fact to be verified if this controversy results in legal action.. (. E~!.,\lelf l~ April 23, 2003 1 of 2 .Town of,Tiburon MEMORANDUM . .. . .. .. .. .. .. .'.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. thus they do not qualify as a structure under the Town's Zoning Ordinance.3 Even if they were considered structures, they could be considered as complimentary to ,the park. permitted park use and incidental to the permitted museum use. Accordingly, I do not believe that the Town must obtain the permission of the Association to install the wheels adjacent to the Donohue Building, provided that they are placed so as to avoid obstruction of Point Tiburon views. EXHIBITS Letter from David F. Feingold Subdivision Improvement Agreement dated February 15, 1984 . 3Sectlon1.05.19 of the Zoning Ordinance provides that "[s]tructure does not include a-fence ora wall used as a fence three and one-half (32) feet or less in height; nor landscaping features, decks, or pavement wherein no part of said landscaping features, decks, or pavement extends more than three (3) feet above grade." . Subject May 27, 2002 2 of 2 1.~" ) .. /..', ~ '.-.1"'.:\]".-- I, .. :., r :.. . , , (( (( OR![;lrU~l . t I-Y ;?/ ~"",r ,,' to.'- , '-' I') 'rr' ' "- '\' r-r~ ;c-X \ 'CI'~{(r' ,SUBDIVISION IMPROVEMENT AGREEMENT 1Z THIS AGREEMENT, made and entered into this /S- day of F€8I?{)11~'I , , 1984, by and between THt INNISFREE COMPANIES, a Californiac;orporation (Owner) and subdividers of that certain ~ubdivision to be known as POINT TIBURON CONDOMINIUMS, herein- after referred to as ."subdivider", and the TOWN OF TIBURON, a municipal 6orporation of the State of California, ~hereinaft~r referred to as "To~n"i WIT N E SSE T H : WHEREAS, Subdivider, pursuant to Chapter 14 of the Tiburon Municipal Code, has presented to Town an improvement plan as rev. 1984) outlining thereon the improvements to be constructed by Subdivider within the subdivision to be known as - POINT TIBURON CONDOMINIUMSi and . WHEREAS, said improvements and any other improvements required by Chapter 14 of the Tiburon Municipal ~odeor by this agreement will not be completed before the filing of the final map of said subdivisioni and WHEREAS, Chapter 14 of the Tiburon Mun~cipa1 Code requires Subdivider to enter into an agreement with Town agreeing to have said work completed within the time specified in said agreementi' NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as follows: 1. The Subdivider shall construct, or cause to be con~ structed, prior to 42 months from the date;of recordation of the final map, all improvements ou~lined and set forth on said improvement plans and as hereinafter.referred to, and all other improvements required of it to be constructed by Chapter 14 of the Tiburon Town Code within and'for the benefit of the Point TiburonCondominiu~ Subdivi.ion, except.as a shorter period of . -1- rE B 1 61984 ..---.........."--.,-... ......... -_.... , . ....... ..' .... .' . .....-............-......""......---....:... '.. .' ,,~;, . ~ . '.!,;' " . :..~_..__..._..~--- ..-.....-":'--:.... --.....-..---.---- . ' \0"',, (( (( time may be specifically otherwise set forth herein. Said . improvements shall include, but are not necessarily limited to the foilowing: (a) Beach Road ~xtension: Subdivider shall provide a roadway extension within the project boundaries connecting Beach Road and Mar West Avenue at the inter- section of ~speranza Street within thirty-six (36) months from date of commencement of project grading or forty-two (42) months from date of recordation of final map, whichever occurs first. Town shall cause to be built and completed that portion of Beach Road between Tiburon Boulevard and the project within such time period. Con- struction work shall be done as per drawings by Tillson- Bliss & Associates~nd as approved by Town Bngineer. :~: (b) 'Paradise Drive: Subdivider shall realign Paradise Drive between Main Street and Mar West Avenue inland to leave an open space park to the southeast of Paradise Drive as per drawings by Tillson-Bliss & Associates and as approved by Town Engineer prior to issuance of certificate of occupancy for the fiPG.t condominium unit or within thirty-six (36) months from ; date of commencement of project grading or forty-two (42) ,".. . months from date of recordation of final map, .whichever ' occurs first. (c) Mar West Road: Subdivider shall provide a turn-around on Paradise Drive including parking lot at the intersection of Mar West as per drawings by Tillson-Bliss & Associates and as approved by Town Engineer, including . the undergrounding of utilities. Such work shall be completed prior ,to the occupancy of the first condominium - unit in building 19 as shown on drawing marked, "Title Sheet and Location Map of Point Tiburon", page C 1" dated December, 1983, or thirty-six (36) months from date of commencement of project grading or forty-two (42) months from date of recordation of final map, whichever occurs first. (d) Shoreline Park: Subdivider shall provide a Shoreline Park to the southeast of Paradise Drive, including finish grading, landscaping, irrigation and a pedestrian and bicycle pathway in accord with drawings prepared by Tillson-Bliss & Associates and Guzzardo & Associates and as approved by Town Engineer. Such park shall be completed prior to issuance of certificate of occupancy for the first condominium unit or within thirty- six (36) months from date of commencement of project grading or forty-two (42) months from recordation of final map, whichever of said dates is first to occur. No additional structures, other than complementary facilities, shall be constructed on said park by Town nor shall any obstruction to the view corridors be permitted thereon, unless mutually agreed by the Subdivider, unti~ completion of the project and thereafter the point Tiburon Waterfront Condominium Owners Association, or their successors in interest and Town. said park shall be maintained by Town including the shoreline to preserve it and to protect the shoreline from erosion. -2- . ~-;..._.>.-_._--~~ ,":.. ,',- .I!.....; .::..::~...;.::.~~.t'f"'~"!.'!:~....- . -.-' .-..._-:._.-.......~~,..~..::. .. - . ._-_.~-- , , (( r( . The Peter Donahue building shall be offered for dedication in its present condition, as is (or ' b.tter), and if retained at such location may b~ used as a , public museum or for such use as may be mutually agreed by the Subdivider and/or its successors in interest and the Town. Said building may be used as a public museum, and uses customarily incident thereto, only, or for such other purposes as maybe agr~ed by Subdivider as long as it is kept in its present location: provided however, Town may raze the building and/or remove it to another site out of Shoreline Park andr if removed to another site, the T6wn may use it for such purposes as it wishes and shall, furthermore, have no obligation to thereafter maintain it. Subdivider shail retain the right to use'said building for a period of 42 months from the date of filing the final map for' use asa sales'~,office and other uses as may be required by it and/or l:onsistent with its present use. . (e) ~enni~ Courts: Two tennis courts and parking for the same shall be constructed by subdivider adj~cent to the marsh residential area as per plans prepared by Tillson-Bliss & Associates and Guzzard6 & Associates and as approved by Town Engineer, which construction ""shall be completed within thirty-six (36) months from the date of commencement of the ,project grading or forty-two (42) months from date of recordation. Such tennis courts shall be offered for dedication to the Town for recreational and open space use. ~o additional structures or impiovements qther than complementary facilities per Ordinance No. 219 N~S. shall be constructed thereon except as mutuaily agreed by Town,' the Condominium Owners Association and Subdivider and/or its successors in interest. (f) Parking: Prior to project grading affecting the existing parking lot only, Subdivider shall provide temporary parking facilities to accomodate commuter parking for at least sixty (60) vehicles, all as approved by the Town Manager. Project workers shall park within boundaries of the project in a location approved by the Town Manager, except that they may park in unreserved, spaces in the commuter lot after 9:00 a.m. (g) Landscaping: Landscaping in the public areas including Shoreline Park, (except flood plain and marsh restoration undertaken by Town under the Development Agreement between Subdivider and Town) shall be completed as per plans prepared by Guzzardo & Associates and as approved by Town. (h) Flood Control: Flood control works co~- sisting of the retention basin in the vicinity of the fresh-water marsh and the discharge conduit to Raccoon Strait shall be completed ~s shown on the improve~ent drawings as per plans by Tillson-Bliss &'Associates and as approved by Town Enginee'r. Such work .sha11 be completed within, thirty (30) months after date of this agr.ement. In the event the Shorelihe Park, tennis courts, or the Donahue Building, after being dedicated to the Town, are not used and maintained for the public purpose for which they are . -3- _0" .-....1~... - ~~ - .. ....~ :...::.. .::';';;~:~~=:,::~'''.~c::r~ ': ~:;..:;..~.:.. .:-..:":"~::.:~-r.:._,~__-" "'.T .~.;~~ (( (( dedicated, or as provided above; such improvements and facilities . shall revert to the Subdivider and/or its successors in interest. Any use by Town other than as authorized ~ereunder, if not discontinued within sixty (60) days after personal delivery of written notice of such improper use by stibdividet or its successor in interest to Town, shall, unlesS such use is discontinued prior to the expiration of said 60-day.period, vest I such lands or facilities in the subdivider or its successor in interest, provided such reversion and/or revesting is accepted by such parties. The improv~ments to be constructed by subdivider shall be constructed in accordance with the Tiburon Town Code and ... amendments thereto and in accord~nce with those specifications contained in the Code. The foregoing plans are incorporated herein by reference and made a part hereof, with the following .. . f exceptions, additions and modifications: -. AS finally approved by the Town Engineer. Where there is a conflict between the plans and specifi~ cations, the more strict requirements shall govern. 2. Subdivider hereby warrants that the plans and specifi- cations referred to herein are in accordance with the precise plan/tentative map approval and the masterplan, for said "..OO,v,.'on prev'oU". a..roveO b. the Town planning C~",'on and Town council, together with all conditions made a part of said approvalS. Subdivider further warrants that said plans and specifications are adequate to accomplish the improvement work covered by this agreement in a good, workmanlike manner, and in accordance with accepted const~uction practices. Should said plans anO specific...ons at an. time prior to final acceptance of improvements referred to herein prove to be inadequate in any respect, then Subdivider does agree ~o mak~ such changes as are necessary to acc.omplish said work in a good, workmanlike manner -4- . ".' ._~--- ..: -~ ~,~-=--'- - "'~.:-::'':;:II'''';'';';'~. _..- h_' -.-. ....--.-.-:.. ..I;'.o.J_' .. '. , . ' :' . ',' ,,-"~, . (( (( .:' . and ,in ~6~ordancewith accepted construction practices. 3. Upon final completion of all of said work in accordance with this agreement, the Town Engineer shall notify Subdivider in writing of his acknowledgment of completion of the same. Subdivider agrees that for a period of one year (except for Shoreline Park and the Flood control Improvements which shall be guaranteed and maintained by Subdivider for two (2) years) trom and after the date of receipt of said written acknowledgment '~f completion of said work it will guarantee, warrant and maintain all of the improvements constructed under the provisions of this agreement, that it will repair any defects or failure~ whic~ may appear in said improvements during said maintenance '"". periods, and tha~it will further correct the causes of said: defects or failures. provided that Subdivider has complied with- the terms of this agreement in all respects, Town shall, upon ~: ~ompietio~ of said .airitenance periods, notify Stibdivider in . writing of its final acceptance of said improvements. Neither- { , the written acknowledgment of completion hereinabove referred t-o nor any periodic or progress inspection or approval shall bind , the Town to ~6cept said i~provements 6r to waive any defect in the same or any breach of this agreement. Acceptance of any part or any stage of s*id improvement work shall not be final until the written notice of final acceptance of all of the improv.ments shall have been delivered to Subdivider as required herein. Subdivider shall upon execution of this agreement Qeposit with Town adequate and satisfactory security in accordance with the provisions of 566499.3 of the Government Code of California to secure the performance of the a,cts set forth in this Paragraph 3. Such security may be an instrument of credit in a form approved by the Town Attorney from one or more financial institutions subject to regulation by the state or fader.l governments pledging that said funds are on deposit and guaranteed for . -5- ".-.-.-.. .......- .._..._~......-._-_--... ..---.-.-.. - .-.-..-. ';'" .... . ....,.:.. .:..:.'...'..=->>.-....JU:JIJ.!~~.. "'.:7':-''-':-';:;-:::' ';;.:-.:.:.__ -".I , . (( (( form of a bond or bonds by one or more duly authorized corporate . payment as provided for in Government Code ~66499(3): or in the sureties. Any additions, alterations or modifications of this agreement or to the plans and'specifications referred to herein, including any extension of ~imewi~hin which the work hereunder may be completed, shall not release or exonerate any surety or sureties or guarantors on the security given in conqection with the provisions of this Paragraph 3. Town has ascertaine'(j and determined that the amount of security to be deposited under the provisions of this Paragraph 3 shall be the sum of S 254,116.52. ':l.~'-\: \\,\7 4. All inspection services rendered in connection wit~ the work covered by this agreement shall be paid for b~ Sub- divider ~t the actual cost to Town as required by Section ~~. 14-31(el of the Tiburon Town Code and ~mendments thereto. 5. Should Subdivider fail to construct the improvements . 'within the time specified in Paragraph 1 above, Subdivider shall immediately discontinue all work under this agreement. In such . event, Subdivider shall either make arrangements satisfactory to Town for completion of said work or Town may immediately proceed to complete the improvements by contract or otherwise, and recover the cost thereof from Subdivider. 6. 'subdivider agrees to prepare for recordation in the office of the County Recorder of the County of Marin a Declar- ation of covenants, Conditions and Restrictions for point Tiburon Condominiums in form approved by the Town Attorney, which declar- ation shall provide for the management, maintenance and control of the common areas including but not limited to the lagoon, private streets, parking areas~ pedestrian pathwa~s and land- scaping lying within the subdivided area. Said declaration shall assur~ that the lagoon shall re~ain attractive, fully maintained and a properly functioning aspect of the development and shall include provisions for the Town levying special assessments on -6- . "-~JDUIU"W--~~~- ..!';' ':.'.-".7":'::::'-:-:::~::;.~-:':;"_Iii~"! . ...~[:'.:7":'"..:::::::::- ':-:'" ..___0' ... ."' -.. "-'-.. ..._ll.h....; ::.1...... '.. '-'"4 ,."....;1 "".=i ',jJ , ,:i (( (( ',~ . the property owners association and/or the condominium units in ...11;'-' the event that, in the judgment of the Town, the lagoon falls , =. j'~ ~ below certain visual attractiveness or water quality standards :.i.1 specified by the Town or in the event the Town experiences "..":] greater or more frequent flooding as a result of the lagoon's effect on the water table or subsurface drainage. Such assess- ments provided by the declaration shall be in an amount suffi- -":':l ~fent to correct the foregoing eventualities. No condominiu~s ", .,.:: may be sold or offered for sale or advertised for sale until CC&R's approved by the Town Attorney have been recorded. , I.. ._l,","~=- 7. Subdivider shall, upon execution of this agreement, . ; ~:. d,posit with Town adequate and satisfactory improvement security in accordance with the provisions of ~66499.3 of~the Government -:'.' ',:;,;:!i Code of'California to secure the performance of the acts set forth in this agreement. Such security may be an instrument oL~ . .....,~ ir~;/~h~~ .:.;;H~~: <:~:,~~~~.~~ ~redit in a form approved by the Town Attorney from one or more financial institutions subject to regulation by the state or federal governments pledging that said funds are on deposit~~nd guaranteed for payment as provided for in Government Code S66499(3)i or in the form of a bond or bonds by one or more duly authorized corporate sureties. Any additions, alterations or '-~~ modifications of this agreement or to the plans and, specifica- tions referred to herein, including any extension of time withir . ".: ::::::~ '--::I which the work hereunder may be completed, shall not release or ,:::,';.:.::' exonerate any surety or sureties or guarantors on the improvemel security given in connection with th is agreement. Town has ---- ascertained and determined that the amount.of security to be ',:.: deposited under the provisions .of this Paragraph 7 shall be in ..... ;:.: , ":J the sum of $2,541,165.22. Said security is the amount determin to be 100% of the total estimated cost of the improvements or acts to be performed (including the obligation provided for in Paragraph 8 below), and is in addition to security posted . -7- ...~~ , ' , ..- .. ''--'''''::=~'::::I!'~~''''!. t. . .:::'-;:.;,j(;,:..:.'~_:: ._-.-,,--'--~P~ '__P ... .. _P___.___' ....J;~,._.;1 .1_...... .-;:.;;:::o:i :.:';J .,,".,..r:tt " "':'::I ..-.....:..... . -:'';~ ._-~:~ . : ;;:: :: ~ : ~..;~;~mt :..~ .-~.- ,:';: ii~\~i;t ~..::.~~ . :; ~ : ~::.. .:.~; -,' . :~=-:;:~. ,::":<i1 ""'^'- .' ;*~~ ..:..::::;frn , :-",::::1 ({ (( pursuant to the provisions of paragraph 3above~ B. Should Town be required to insti tutelegal action to. compel performance of this agreement or the document securing, performance thereof, subdivider agrees to pay all reasonable attorneys' fees, costs of suit, and all other expenses of litigatio~ incurred by Town in connection therewith. 9. Town shall not be responsible 'for ~ny of the cost of said improvement or for the performance or nonperformance of the work of construction of said improvements, and Subdivider shall hold Town free and harmless from any claim or liability resulting from or arising out of the same. 10. subdivider shall have sole resporisibility for making all arrangements and assuming all expenses as may be req~~:eo in connection with the furnishing and installing of utility service . facilities. .-- " 11. subdivider hereby agrees to, and shall, hold To~n, its electiv,e and appointive boards, commissions, Officers,:ag. and employees, harmless from any liability for damage or clai for property damage or claims for damage for personal injury, including death, as well as from claims for property damage, in- eluding, but not limited to, damages or claims for damage based upon liability imposed by Article I, section 14, of the Cali- fornia constitution, which may arise from Subdivider or sub- divider's contractors', subcontractors', agents' or employees' work, improvements, operations and activities under this agree- ment, whether such work, improvements, operations or activitie~ be by subdivider or by any of Subdivider's contractors, sub- contractors, or by anyone or more persons directly or indirec employed by, or acting as agent for, subdivider or any of sub- divider's contractors or subcontractors. subdivider agrees tc and shall, defend Town and its elective and appointive boards, commissions, officers, agents and employees from any suits or -8- . ,...-........-...;......-... --- --' ...._~ . ._~~_....:-: ....: ::: ::::.:r=:........ ~''''':'!'_~!: .:i! ~~.; i. " . ~ .'. . (( r( . , actionsatla~ orin equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid work, im- <::l~ ,t provements,operations and activities. The provisions of this "1 paragraph shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered by reason of any of the aforesaid work, improvements, operations and activities referred to in this paragraph, regardless of whether or not Town has prepared, sup~lied or approved of, plans and/br specifications for the subdivision, or regardless of whether or not any insurance policies shall have been determined to be .--........Q applicable to any of such damages or claims for damages. .. comply with all insurance requirements required under this par~- . 12. Before beginning work on the project subdivider shall ..-..... graph and shall receive approval therefor by the Town Attorney,as to form, amount and carrier. Subdivider shall maintain such '. ,,: ,~......;..,.:...., . :.:...;: :;.. ~..' ~ " ',1\ insurance during the term of this agreement. The insurance shall extend to the Town, its elective arid appointive boards, comrnis- ,::,,::j sions, officers, agents, employees and representatives to the~ Subdivider and each contractor and subcontractor performing wo~k on the project. (a) Compensation Insurance. Subdivider shall maintain worker's Compensation insurance for all persons employed _'~R';~ in the work of improvement required by this agreement. Subdivi- , :','3 der shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for their respective em- ~.....~ ployees. Subdivider agrees to indemnify the Town for damage resulting from its failure to take out and maintain such insurance. (blPublic Liability and property Damaqe Insur- ance. Subdivider shall maintain public liability insurance in al amount not less than 51,000,000.00 for injuries (including death to anyone person and in an amount not less than $2,500,OOO.DO 01 . -9- . .'.............-.~ '...:::-', -~':.::'~"'U"l:: ~ (( (( account of anyone occurrence; and property damage insurance'in . an amount of not less than $1,000,000.00 for damage to the property of each person on account of anyone occurrence. Said insurances'hall hold Town, its elective and appointive boards, commissions, officers, agents and,employees, harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property.damage, ineluding, but not limited to, damages or claims for damage based upon liability imposed by Article I, section 14, of the Califor- nia Constitution, which may arise from Subdivider's or Sub- divider's contractors', subcontractors', agents' or employees' work, improvements, operations and activities under this agree- ""'. ment, whether such work, improv~ments, operations or activities be by subdivider or by any of Subdivider's contractors, subcon- tractors, or by anyone or more persons directly or indirectly employedr,by, or acting as agent for, Subdivider or any of Sub- and shall, defend Town and its elective and appointive boards, .:. divider's contractors or subcontractorS. Subdivider agrees to, commissions, officers, agents and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid work, improvements, operations and activities. The provisions of this paragraph shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid work, improvements, operations and activities referred to in .this paragraph, regardless of whether or not Town has prepared, supplied or approved of, plans and/or specifications for the subdivision. (c) Contractual Liability Insurance. Subdivider shall maintain an insurance policy in the amount of $1,000,000.00 insuring against damages sustained by reason of any action, claim or demand made by reason of breach or claim for breach of -10- . .~....._......~...."""-'~.. ":...~ -:-::D....::::;;:'.U!r-:,!:'~.... ..-.....~.:;.:.7-.::-~~.:..::.. ..--........-...._.....--~;"'"--~~ . ~" .' (( (( . . contract or by reason of any contractuall~ability or alleged contractual liability on any contract entered into by Subdivider or its co~tractor, subcontractor, agent or employee relating to any work of improvement required by this agreement. 13. 'Upon execution of this agreement, subdivider shall deposit with Town cash or other security satisfactory to Town in the sum of Sl,270,Sa2.61. Said amou~t shall secure payment to the principal contractor, his subcontractors, and to' persons re~ting equipment o~ furDishing labor or'materials to them for construction of the imprdvements. 14. This agreement shall be subject to and shall be deemed ~o incorporate by reference as if set forth in full hereat, all applicable provisions of the state Subdivi~.on Map Act and Chapter 14 of the Tiburon Town Code. . 15. It is agreed that in the event of litigation between ._ \ the par'~ies relating to this ag'reement that the proper venue therefor is the Marin County Superior Court. 16. Town hereby waives any Town imposed per acre drainage _ fees arid traffic fees for the project and all Town imposed fees -- . III III III III II! III III III III III Iii III III III III III 11/ III III III III III III I I I- III III -11- "---~---_.,_....loI."'_HH~ _..~. .'~. ..._....,._ ~...___......___.oI........~...--...~ .~:.. ~::===--==::=:::~=-,.;:;r-... _._._.....~_.....~.-_....- -~~ ",.- . . ......... . " (( r( for inclusionary housing, save and except for those fees and funds specifically required by that certain point Tiburon Development Agreement as approved and executed by the Town herewith. IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate the day and year first above written. TOt.. O:~IBURO. ,0 .4--', ' . Attest: By /"- eLL.V ? /.: 'D,. , MayoJ:y1 ' t . ~X7/~J~r 't 'T[t Clerk ., ~~t'~ c' : ~ .j# SUBDIVIDER: THE INNISFREE COMPANIES, a California Corporation "':.. . '~ ....... :~. . ....,~. ~~ .:c-y(-p~/ By ~,.< i. &a-..'"-1~ -12- ,. ..-..'-. ..~~;::::':"'::::::~l :. ..-.-' - ~>.-.... ~. p I T T I B u R o N o N LATE MAll #15 RECEIVED AUG 1 6 2005 TOWN MANAGERS OFFICE TOWN OF TlBURON August 16, 2005 Phil Cassou Belvedere- Tiburon Landmarks Society P.O. Box 134 Belvedere, Tiburon, CA 94920 Reference: Gallows Wheels - Donahue Building Dear Mr. Cassou: As the general manager of Point Tiburon Bayside Condominium Association, I was asked by the Community Relations Committee of our Association to follow up on a letter promised at the July 14th meeting with you, stating that no further development would be pursued on Shoreline Park by the Belvedere- Tiburon Landmarks Society. This letter was expected to be received prior to the next Town Council meeting scheduled for August 17,2005. Please address your letter to Point Tiburon Bayside Condominium Association, 210 Paradise Drive, Tiburon, CA. 94920. Please do not hesitate to contact me should you have any questions regarding this letter. Thank you. Sincerely, ~~ Diane A. Kay, General As directed by the Boar of Directors Point Tiburon ~aYSide C ndominiU~ Ass7ciati cc: Town of TIburon - Town CounCIl ' Board of Directors - Point TiburonBayside Condominium Association David Feingold, Esq. Community Relations Committee - Point Tiburon Bayside BA YSIDE CONDOMINIUM ASSOCIATION Mailing Address 210 Paradise Dri ve. Tiburon. CA 94920 EmaiJ ba vs ideintiburon@sbcgl 0 ba I.n et Telephone 415435-2851 4] 5 435-8305 FAX OQ~17-Z005 IZ:3Qpm From-H~NSON BRIDGETT 4\59256409 T-664 P,002/00Z F-099 , Via Facsimile Transmission Original via U.S. Mail Tiburon Town Council 1505 Tiburon Boulevard Tiburon, CA 94920 Fax: 415-435-2438 fD) ~~~~W~ lrn IIll AUG 1 7 2005 l!)) Hnnson 8R1DGEll m~H~~ ijl~~~~ ~ ~ ~ ~'Hr Mfo.l\V k. MeeACHllON DIRECT DI....L 415 925 8400 REPLY TO MARIN E.MAIL mmceOC;hrOr'l@honlonbrldgel1.com August 17, 2004 lOWN CLERK I';QWN OF :nBlJRON Dear Mayor and Members of the Council: The Martha Company was advised yesterday that the Town Council would be considering tonight a resolution of rhe Town "asserting its right of first review for development applications aS50ciatcd with the Martha Company property." In addition to objecting to the extraordinory procedure by which the Town has chosen to assert such "right," we would like to note the following: 1) The Judgment Pursuant to Stipulation entered December 29, 1976, in the matter of. Martha CO. Y. County of Marin ("Judgment") requires the County to process the pending application. Therefore, to the extent, if any, that the Town ever had a <'right of first review," such "right" has been superseded by the Judgment. 2) Even if such asserted "right of first review" were interpreted in a manner which hannonized with the Judgment and, with other California law, then Tiburon has already exercisedsucn review during the twelve-year period from 1992 to 2004. Based on this extensive, comprehensive, and thorough review, the Town is in an excellent position to provide comment and counsel to the County of Marin as it processes the Martha Co. applications. We appreciate your consideration of these important legal and policy matters. . ' cc: John Reed, Martha Company Brian Crawford, Deputy Director, CDA David Zaltsman, Deputy County Counsel Scott Iiochstrasser, IP A Very tnlly yours, ~~ J(~.~~W ' Mary'I<.. McEuchron I U N taU NeiL LATEMAILI.L MEETING DATE f1--/7--0~ ~w OFFICI!' WWW.HANSONBRIOGmCOM SAN FRANCISCO NOl\Ti''l eAY SACI'AI'1[NTO Ul MARKET ETUET J,ISY'LO..;)I\ SAN F.....NCI1CO . C"l.lfOll-NIA '410~.)171 nL[~ONt ~ 15.777.)200 FACSI!'1ILl! '1\.S~I.n.. woop IllAND AO (, till. '''''NCII DRAKF. ~1"o..SuITE IF. Ll\RKIPvll.. CALl~OPo.NI^ ,~n' TEl.ErHONF. '1.1.9).$.'400 fACSIMILE 4I.1,9l5,O.0' ,eo NINTH sneET SUiTt 1100 SACI\^!'1ENTO . CALIfORNIA ".11 TELEPHONE 91....2.JIU ,..CSIHILE' 16,'~l.)1.8 SF~HANSON81\IOG(TT.COM NORTH B AY@HAN~ON~RIPG~ TIC OM SAC@HANSON8RIDGHTCOM (~ "1/ . . . Town of Tiburon STAFF REPORT AGENDA ITEM Of d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: MAYOR AND MEMBERS OF THE'TOWN COUNCIL SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMEN#"\.~ MARTHA COMPANY PROPERTY: RESOLUTION ASSERTING RIGHT OF FIRST REVIEW PURSUANT TO MARIN COUNTYWIDJ)L POLICIES AUGUST 17, 2005 REVIEWED BY: . . . . . . . . .. . . . . . .. ............... ... FROM: SUBJECT: MEETING DATE: BACKGROUND The owners of the 11 O-acre Martha Company property, located at the southeast end of the Tiburon Peninsula, have recently filed applications proposing 40 dwelling units with the Marin County Community Development Agency. The owners had previously filed development applications with the Town of Tiburon, but those applications were abandoned and finally withdrawn in May, 2004. Members of the County of Marin Planning Commission are currently hearing an appeal of a determination by the Community Development Agency to deem the Martha Company applications as "not accepted for filing" until such time as the Marin, Local Agency Formation Commission determines which agency, the Town of Tiburon or the County of Marin, is the proper authority to process the applications. Town Staff had sent a letter to the County dated May 9, 2005 indicating the Town's desire to process the applications. However, at the County Planning Commission meeting held on July 28, 2005, Commissioners requested that the Town Council formalize its position regarding its desire to process the development applications. The County Planning Commission is scheduled to hear the appeal on August 22, 2005. Town Staff has therefore prepared a resolution (Exhibit 1) for consideration by the Town Council that sets forth. Tiouron's strong desire to process the Martha Company development applications and annex the property. . ANAL YSIS The Marin County Community Development Agency has indicated that pursuant to its Countywide Plan policies, the Town of Tiburon has the "right of first review" to process the development applications and to require initiation of annexation proceedings. The specific' policies of the Marin Countywide Plan state as follows: CF-1.3: Development Applications. All development applications within a city's urban service area should be reviewed by the city to ensure consistency with its land use and development policies. Tiburon Town Council Staff Report 8/17/2005 10f 2 Town of Tiburon STAFF REPORT " Program CF-1.3a: Subdivision and master development plans involving unincorporated land within a city's urban service area shall be submitted to the city for planning action and annexation. This approach awards the "right of first review" to the affected city to perform the planning analysis of any development plan requiring urban services. CF-1.4: Development of Unincorporated Land. Prior to development of vacant unincorporated landS within an urban services area, the unincorporated territory should seek annexation to the city, unless the city signifies that it does not desire to annex the lands 'at that time. The "urban service area" referenced in the Countywide Plan policies is coterminous with the Town ofTiburon's LAFCQ-determined Sphere of Influence in this vicinity, and clearly includes the Martha Company property. In order to conform to this policy, the County Community Development Agency normally requires applicants, as part of application completeness process, to submit a letter from the affected municipality stating whether or not it wishes to process the applications and annex the property. In this instance, the County is requesting the Town's response prior to accepting the Martha Company applications ,as having been filed, since it is unlikely that an uncooperative applicant would tender such as request to the Town. RECOMMENDATION Adopt the Resolution. EXHIBITS 1. Draft Resolution Tiburon Town Council Staff Report 8/17/2005 . . 2of2 (.~ 1'"," q. . . . RESOLUTION NO. XX-2005 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ASSERTING ITS RIGHT OF FIRST REVIEW FOR DEVELOPMENT APPLICATIONS ASSOCIATED WITH THE MARTHA COMPANY PROPERTY (ASSESSOR PARCEL NO. 059-251-05) WHEREAS, the County of Marin has adopted certain policies and programs within its Countywide Plan (General Plan) with respect to processing of development applications for, unincorporated properties within a city's urban services area, specifically as follows: CF-l.3: Development Applications. All development applications within a city's urban service area should be reviewed by the city to ensure consistency with its land use and development policies. Program CF-I.3a: Subdivision and master development plans involving unincorporated land within a city's urban service area shall be submitted to the city for planning action and annexation. This approach awards the "right of first review" to the affected city to perform the planning analysis of any development plan requiring urban services. CF-l.4: Development a/Unincorporated Land. Prior to development of vacant unincorporated lands within an urban services area, the unincorporated territory should seek annexation to the city, unless the city signifies that it does not desire .to annex the lands at that time. Said policies applying to the Martha Company property, a 11 O-acre parcel located at the southeastern end of the Tiburon Peninsula, as a vacant unincorporated parcel requiring urban services that is located within the urban service area and sphere of influence of the Town of Tiburon; and WHEREAS, the owners of the Martha Company property have recently applied to the County of Marin for development of 40 dwelling units on the property; and WHEREAS, owners ofthe Martha Company property have previously abided by the County of Marin policies and have applied to the Town of Tiburon for prezoning and development of the property, first in 1992'and again in 1998, and have on both occasions abandoned the applications before processing could be completed; and WHEREAS, the Martha Company property abuts the Town of Tiburon on two of its four . sides; and WHEREAS, the Martha Company project as proposed would most greatly impact some of Tiburon's oldest and most established neighborhoods, which contain narrow, winding and substandard streets; and Tiburon Town Council Resolution No. XX-2005 --/--/2005 1 EXHIBIT NO. " WHEREAS, the Martha Company project would draw access to the great majority of its proposed dwelling units through those narrow, winding, substandard streets in established neighborhoods within the Town of Tiburon; and WHEREAS, the overwhelming majority of persons affected by this project reside in the Town of Tiburon, and as disclosed by previously-prepared draft environmental impact reports, the impacts of the proposed project on the site and on the surrounding environment would be , extensive, severe, significant, and unavoidable; and WHEREAS, the County of Marin and the Marin Local Agency Formation Commission (LAFCO) have adopted policies that direct development of vacant land requiring urban services to the affected municipalities, and the Town of Tiburon strongly supports such policies; and WHEREAS, the Town Council of the Town of Tiburon desires annexation of the Martha Company property into the Town of Tiburon as part of the development review process. NOW, THEREFORE IT IS RESOLVED, that the Town Council of the Town of Tiburon asserts its "right of first review", pursuant to Marin Countywide Plan policies, over processing of development applications and annexation of the Martha Company property and respectfully exhorts the County of Marin to uphold its policies to the greatest extent practicable. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on ,2005, by the following vote: AYES: NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK Tiburon Town Council 2 Resolution No, XX-2005 --/--/2005 ~. ~ \ . . . . . . Town of Tiburon STAFF REPORT AGENDA ITEM ib TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT~ APPOINTMENT OF AD-HOC COUNCIL SUBCOMMITTEE W RESPECT TO THE MARTHA COMPANY DEVELOPMENT APPLICATIONS FROM: SUBJECT: MEETING DATE: AUGUST 17, 2005 REVIEWED BY: BACKGROUND The issue of the Martha Company property and its development applications, currently on file with the County of ~arin, is likely to require considerable attention from the Town Council and Town Staff over the next several months or possibly longer. Town Staff therefore recommends that the Town Council appoint an ad-hoc subcommittee of two of its members to deal with this issue and report periodically to the full Town Council as warranted. RECOMMENDATION Staff recommends that the Town Council, by motion, appoint two of its members to an ad-hoc Martha Company Property Subcommittee. Tiburon Town Council Staff Report 8/17/2005 10f 1 . . . MAYOR AND MEMBERS OF TOWN COUNCIL ~ FILE #30501: AMENDMENT TO THE ROUND HILL OAKS PRECISE DEVELOPMENT PLAN (PD #36) TO AMEND A BUILDING ENVELOPE; . 10 ROUND HILL TERRACE; STEPHANIE CYR AND RICHARD DONICK, OWNERS; WEIRlANDREWSON ASSOCIATES, INC., APPLICANT; ASSESSOR'S PARCEL NO. 058-301-42 Town of Tiburon STAFF REPORT TO: AGENDA ITEM {o FROM: DANIEL M. WATROUS, PLANNING MANAGER SUBJECT: MEETING DATE: AUGUST 17, 2005 PROJECT DATA Address: Assessor's Parcel Number: File Number: Lot Size: General Plan: Zoning: Subdivision: Current Use: Owners: Applicant: Date Complete: . Preliminary CEQA Determination: BACKGROUND REVIEWED BY: SA 10 Round Hill Terrace 058-301-42 30501 55,757 square feet Medium Density Residential RPD (Round Hill Oaks Precise Development Plan, PD #36) Round Hill Oaks, PM 1999-164 (Lot 4) Single-Family Residential Stephanie Cyr and Richard Donick Weir/Andrewson Associates, Inc. July 7, 2005 July 22,2005 The project is the proposed amendment to a precise development plan (the Round Hill Oaks Precise Development Plan) for property located at 10 Round Hill Terrace. The applicant wishes to amend the primary building envelope for this lot. On July 27, 2005, the Planning Commission adopted Resolution No. 2005-10 (Exhibit 3) recommending to the Town Council that the building envelope expansion requested under this precise development plan amendment be approved. PROJECT DESCRIPTION The Round Hill Oaks Precise Development Plan was approved by the Town Council in 1998, and established primary and secondary building envelopes for each of the four parcels in the subdivision. The owners of the property at 10 Round Hill Terrace now propose to modify the approved primary building envelope for their lot. The primary building envelope would be expanded to the north near the existing stairway entrance to the house. The requested change would improve the access to the outdoor living areas on the northern portion of this sloping property. Town of Tiburon .~ . 1 ., Of r, ~~/_1lt.J · 0/ ~',~; '-I Ii" \1- .......... -" " ~ ~~'. J""a~,/I "~~~~' ('/.-=--~/.~ ;.<'O~/f~ .'1>. ~..~~/.. -"A 1l~(.' I . STAFF REPORT ANAL YSIS Proiect Design The applicants have requested to modify the primary building envelope for this property in order to improve connections to the outdoor living areas on the northern side of the property. The current design of the house and exterior stairway allows access to a terrace and garden area on this side of the house only through an interior guest bedroom. The applicants propose to redesign the exterior entry stairway to provide more direct access to this area. A new enclosed storage room would be constructed under the modified stairway. As the existing stairway is directly adjacent to the approved primary building envelope boundary, a small extension of this envelope would be required to construct these improvements. The proposed improvements would only be marginally visible from neighboring properties, and would not interfere with any views from adjacent homes. Any additional building mass associated with the proposed improvements would be consistent with the existing stone-faced stairway area at this end of the house, and would not result in a significant change to the overall exterior design of the house. Compliance with the Round Hill Oaks Precise Development Plan The Round Hill Oaks Precise Development Plan clustered three of the four residential lots in this subdivision at the end of a private roadway. The primary and secondary building envelopes established by the Round Hill Oaks Precise Development Plan were designed to allow adequate space for the development of each parcel, while providing a buffer between the envelopes and nearby private open space areas. Although the comer of the proposed primary building envelope alignment would be slightly closer to the adjacent private open space on this lot, a substantial buffer would still remain between the envelope and the open space boundary. This design therefore appears to be consistent with the intent of the Round Hill Oaks Precise Development Plan. . General Plan Consistency The proposed project has been reviewed for consistency with the Tiburon General Plan and with the requirements of the Tiburon Zoning Ordinance regarding precise plan amendments. Open Space and Conservation Element policy OSC-2 states that "while accommodation of growth is an accepted reality, it should be so directed as to preserve and enhance views, ridgelines, significant vegetation, habitats and environmentally sensitive areas to the maximum extent feasible. New development shall be in harmony with adjacent neighborhoods and surrounding open space areas." As noted previously, the proposed primary building envelope expansion would not result in any impacts on nearby residential properties, and would still provide an 'appropriate buffer between the envelope and the adjacent open space area. REVIEW BY THE pLANNING COMMISSION . The Planning Commission reviewed the project at its July 27, 2005 meeting, minutes of whic~ August 17, 2005 page 2 of 3 . . . Town of Tiburon STAFF REPORT ANAL YSIS Proiect Desian The applicants have requested to modify the primary building envelope for this property in order to improve connections to the outdoor living areas on the northern side of the property. The current design of the house and exterior stairway allows access to a terrace and garden area on this side of the house only through an interior guest bedroom. The applicants propose to , redesign the exterior entry stairway to provide more direct access to this area. A new enclosed storage room would be constructed under the modified stairway. As the existing stairway is directly adjacent to the approved primary building envelope boundary, a small extension of this envelope would be required to construct these improvements. The proposed improvements would only be marginally visible from neighboring properties, and would not interfere with any views from adjacent homes. Any additional building mass associated with the proposed improvements would be consistent with the existing stone-faced stairway area at this end of the house, and would not result in a significant change to the overall exterior design of the house. Compliance with the Round Hill Oaks Precise Development Plan The Round Hill Oaks Precise Development Plan clustered three of the four residential lots in this subdivision at the end of a private roadway. The primary and secondary building envelopes established by the Round Hill Oaks Precise Development Plan were designed to allow adequate space for the development of each parcel. while providing a buffer between the envelopes and nearby private open space areas. Although the comer of the proposed primary building envelope alignment would be slightly closer to the adjacent private open space on this lot, a substantial buffer would still remain between the envelope and the open space boundary. This design therefore appears to be consistent with the intent of the Round Hill Oaks Precise Development Plan. General Plan Consistency The proposed project has been reviewed for consistency with the Tiburon, General Plan and with the requirements of the Tiburon Zoning Ordinance regarding precise plan amendments. Open Space and Conservation Element Policy OSC-2 states that "while accommodation of growth is an accepted reality, it should be so directed as to preserve and enhance views, ridge lines, significant vegetation, habitats and environmentally sensitive areas to the maximum extent feasible. New development shall be in harmony with adjacent neighborhoods and surrounding open space areas." As noted previously, the proposed primary building envelope expansion would not result in any impacts on nearby residential properties, and would still provide an appropriate buffer between the envelope and the adjacent open space area. REVIEW BY THE PLANNING COMMISSION The Planning Commission reviewed the project at its July 27,2005 meeting, draft minutes of August 17, 2005 page 2 of 3 STAFF REPORT Town of Tiburon . . . . . . . . . . . . . . . . , . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. which ,are attached as Exhibit 5. At that meeting, the Commission determined that proposed project would be an improvement to the property, improving circulation on the site, without creating any visual impacts to neighboring homes. As a result, the Planning Commission adopted Resolution No. 2005-10 recommending to the Town Council that the precise plan amendment be approved. ENVIRONMENTAL REVIEW Staff has preliminarily determined that the subject application is categorically exempt from the requirements of CEQA per Section 15301 of the CEQA Guidelines. RECOMMENDATION Staff recommends that the Town Council hold a public hearing on this item, then adopt the draft resolution approving the amendment to the R~und Hill Oaks Precise Development Plan to amend the primary building envelope for the property at 10 Round Hill Terrace, subject to the conditions contained therein. EXHIBITS . 1. Application form and supplemental materials 2. Draft resolution 3. ' Planning Commission Resolution No. 2005-10 4. Staff Report of the July 27, 2005 Planning Commission meeting 5. Draft Minutes of the July 27, 2005 Planning Commission meeting 6. Submitted plans . August 17, 2005 page 3 of 3 TOWN OF TIBURON LAND DEVELOPMENT APPLICATION TYPE OF APPLlCA liON o 2 Z005 . o Conditional Use Permit !l( Precise Development Plan VI_co'"" cJ...""", -t). ,0 Conceptual Master Plan o Rezoning/Prezoning o Zoning Text Amendment o General Plan Amendment o Design Review (ORB) 0' Design Review (Staff level) o Variance 0' Sign Permit o Tree Permit '0 Underground Waiver o Tentative Subdivision Map o Final Subdivision Map o Parcel Map o Lot Line Adjustment o Certificate of Compliance o Other APPLICANT REQUIRED INFORMATION S 5 75 T S.Q~. OWNER OF,PROPERTY: MAILING ADDRESS: CITY 1ST A TE/ZIP: PHONE NUMBER: \0 \~ (\ Ii Yl :1 h " ~ i-rc~ ( <::. 5 'X. < I - ' S Ie r l"'r~ VI ~ ~ ~; ( l'1 r> r- (1 I \0 ~":< oJ ,'I rJ h' II T/r,-,j (...:L T; \.~llrDl" (' A ((lV;;.. ":7 I. '-I - \ 9(1l1 PROPERTY SIZE: ZONING: SITE ADDRESS: PARCEL NUMBER: ?t='D po.;,. ( k FAX APPLICANT: (Other than Property Owner) MAILING ADDRESS: CITY 1ST A TE/ZIP: PHONE NUMBER: FAX Ahlc~W'\ ML( lilM': / .Fn'(\<:..' M orcc<U ARCHITECT/DESIGNER/ENGINEER: \.tIt ,'r A.,("fnU/c.r1L"1 A-()C'( ;'/Jrr---, MAILING ADDRESS: '7"'7 () A c. T <"'1I: Te +::: CITY/STATE/ZIP: c.,rA'~ P<'A~NP\ (A 9~~o\ PHONE NUMBER: Y I VI q I,( "'5 - 'l+ 9+ x 'h 'i!. FAX LlI ~,\. L\ 'l:'> ~ 7~ "7 . "'31'-1 se indicate with an asterisk (*) persons to whom correspondence should be sent. . BRIEF DESCRIPTION OF PROPOSED PROJECT (attach separate sheet if needed): i~"'_G"ldJ'oI(r\^",..'\I' Tn ,ht,;lrJ.\'1Cl eV\I/e./{'VlL 'Tn, ("'Ionld LI."7"'" c.Cl..q. , "\ 0- D I) ~ '. oA : ,^ (} ('^ II c \ r, If' p . / I, the undersigned owner (or authorized agent) of the property herein described, hereby make application for approvai of the plans submitted and ma4e 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 the Town and also agree to defend, indemnify and hold the Town harmless from any costs, claims or liabilities arising from the approval, including, without limitation, any award of atto~neys fees that might result from the third party challenge. ~\ l \as Signature: Date: 6'.t/Dr: l lops r, ~jI F~E:GFN~"f~D JU1\1 ::' WEIR/ANDREWSON ASSOCIATES, INC ENGINEERS & ARCHITECTS PLANN!i\ J TOWN Ori 'DUi;OI'~' June 30, 2005 Mr. Daniel M. Watrous Planning Manager Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Subject: 10 Round Hill Terrace - (A.P. #058-301-420) Precise Development Plan amendnient application Project#: 04068.03.02 Dear Mr. Watrous, Thank you for your letter of June 22nd outlining the additional information required to complete the application for the project at 10 Round Hill Terrace. We respond to your inquiries and requests for additional information as follows: 1. The primary purpose of this project is to improve traffic to all areas of the property, particularly the north terrace area and the rear garden. The north terrace and the garden are' the most pleasant outdoor spaces of the home due to the views, shade and privacy. Unfortunately, however, the current configuration of the front stairs provides no access to the north terrace. Instead, to access the north terrace or the rear garden, residents and guests must pass through the front door, a corridor, and the guest bedroom. To facilitate outdoor access to the terrace and garden we have designed a new front stair approach which is' adjoined to the north terrace area. This new configuration will provide outdoor access from the driveway to the north terrace by integrating its access to the small existing entrance porch. The new staircase configuration will also provide an extension of the terrace in a spot that provides excellent water views, as well as an enclosed storage room beneath. , . However, a portion of the new storage room will be outside the existing "Building Envelope" outlined in the current precise plan. It is proposed that the existing precise plan be amended , with a smaUincrease of 400 square feet, by re-adjusting the lower precise plan line adjacent to the stair. Please refer to our drawing AO.4. Please note that the proposed amended staircase and the incorporated new storage area are designed to fit in the precise footprint of the current staircase, with no. additional encroachment on the driveway or any other land-space. Also please refer to attached sheetsSK1 and SK2, where we illustrate the inconvenient existing layout, and the enhancement provided by the new layout of the front stair approach. 2. As you requested, we have attached a site plan showing the entire property, including the location of the house and the existing precise plan building envelope, existing and proposed. Please see sheet AO.3. . . . ( 990 A 5;l(r.rl. SUITf K SAN RAI^U CA 94901 p .... 1 j; A e 5 F .4 1.5 4 1I .5 EXHIBIT NO~ 'J) 2' <"or- c:- 1,( "a.~ . . . . June 30, 2005 Mr. DanielWatrous Page 2 3. Also per your request, we are attaching a copy of the tide report of the subject property. We hope that this material will satisfy all the requirements for the process of this application. Please do not hesitate to contact us if you have any other question. Sincerely, Erick Moreau, AAIA Project Manager EM Ilk Cc: Rich and Stephanie Donick , T:\Doruck_04068.00_ \04068.03_Doruck CDs\04068,03,02 CDs - Ph III - Stair\LTR-Planning additional docurnents-em-03.DOC EXHIBIT NO. f, '3 G'I'='-:) Izo)>oom o 0;:0 Z;:o;:oX CmG)O;:o;:oCf) Cf)<c)>mm--t m-mOJ)>)>Z Cf)~Cf)m;:O;:OG) 0Cf)~~00Cf) m-" ",,:-1 Cf))>--tO--t--t)> ;:oZIgII;:O )>Om_::::.mmo OJOJ-u~II6; ~~~Ioom --t--CC mOO Cf) Cf) 00 ;:o_Imm Cf)--" m )>)>Cf)Cf)--tCf) 8-uZ<IZ ;:oo)>mo ~---t)>o--t Cf)~O-UZ-u ...,o):o:r;:o --tmz...,-<o 0- <I)>< .:t~~:t80 m)>m;:omm ;:00 oCf))> mmo~cCf)o )> . --t 0 ;:o)>"G)om ;:oOI Cf) Om;:O--t:tCf) ")>OI --t --t<~mmo IS I"U m--t~o~~ I;:OC---t Cf)00 m +< m ~ (J) ^ ..Ji,. m m >< (J) -f Z G) (J) ,~ ;0 )> '1J '1J ;0 o )> () I . ..., ;:0 c z o ;:0 ..., I . . tIj ~ p::: ~ to ~ ~ .~ .c. o n .,1 . . )>mo I1X (J)I1IJ 11_11:;:::1:::0:::0 m(J)-f~OO O-fI:::OZIJ -fZm(J)-fO ~G.l)>om(J) mOOzm )>ZOZ-fO r-f-iZ;o- r;o-m)>S:: -f-<OOZIJ IIJZ-fO;o mO)>Zmo (J);o~G.l)>< _~~~~a~ <)>;om(J)~ mZ)>:-o~-f ~OO)>-- _ (J) m -f ;0 (J) Oo);O~m ;omZ-f-f~ -0-000 - ;0)> (J)-f-O;O <-f-fI;om )>oomo~ 0" ;O(J)<- -<-f)>:-IOZ oIG.l::t>m-f I1mm;o(J)I z-o;O(J))>m m;OO)><" _OOZ);O ~-05:0rO CDOCD,,^=d o~m;o~;o ;oO~o~Z (J)-o~~)>-f ;oImCDO 0....... zO""Ti c... -f< m(J);om:i ~-f)>-fm OIZIm omomx m(J)fT!O(J) (J))>-fC-f z5:I;oZ omm~G) -f)>IZ (J)m-f -i- IG) mI -f ~ < m ~ + en I )> o m 11-0"'" 0;0-> ;00-1 O<I ~o-i zmI m5:;O ;OO~ \ ~~~ O-om G.l;oZ C- ~m,.~~ -f-<-o en 0 ;0 , 0 I (J) ^ I'.) "'U ;0 o "'U o (J) m o (J) ~ ;0 o m (J) G) z . t1=j .... @~ I-! -i to :;0 I-! C t-3 z Z 0 ~ 0 :;0 , -i . I v) o lJ l/' ) ~ RECORDING REQUESTED RETURN TO: Tiburori Planning Department 1505 Tiburon Boulevard Tiburon, CA 94920 . Attn: Daniel M. Watrous (~ . I RESOLUTION NO. (Draft)-2005 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING AN AMENDMENT TO THE ROUND HILL OAKS PRECISE , DEVELOPMENT PLAN (PD #36) FOR PROPERTY LOCATED AT 10 ROUND HILL TERRACE ASSESSOR PARCEL NO. 058-301-42 WHEREAS, on July 27,2005 the Planning Commission held a public hearing to consider the approval of an amendment to the Round Hill Oaks Precise Development Plan to amend the primary building envelope for the property developed with existing single-family residence at 10 Round Hill Terrace; and WHEREAS, on July 27, 2005, after receiving public testimony and considering the application, the Planning Commission adopted Resolution No. 2005-10 recommending to the Town Council that the requested precise plan amendment be approved; and WHEREAS, The Town Council has found that the project is exempt from the . requirements of the California Environmental Quality Act per Section 15301 of the CEQA Guidelines; and WHEREAS, on August 17, 2005, after hearing all testimony and reviewing all documents on the record, the Town Council concurred with the findings made by the Planning Commission and found that the project is generally consistent with the overall intentions of the Round Hill Oaks Precise Development Plan and the policies contained within the Land Use Element of the Tiburon General Plan. The modified primary building envelope would improve the access to outdoor living areas on this property without resulting in impacts on nearby homes and while still providing an adequate buffer to the adjacent open space area. . NOW, 'THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby partially approve the requested amendment to the Round Hill Oaks Precise Development Plan, subject to the following conditions: 1. The primary building envelope for the property at 10 Round Hill Terrace shall be amended as reflected on the Site Plan, prepared by Weir/Andrewson Associates, Inc., dated May 24,2005 (one sheet), attached as Exhibit "A." \ 2. This Precise Plan Amendment approval shall be valid for 36 months following its effective date, and shall expire unless subsequent zoning and/or building permits have been issued pursuant to this approval. A . TIBURON TOWN COUNCIL RESOLUTION NO. (Draft)-2005 AUGUST 17, 2005 1 EXHIBIT NO. 2-- if . . . time extension may be granted if such request is filed prior to the expiration date. 3. This approval shall in no way alter other provisions of the Round Hill Oaks Precise Development Plan not specifically described herein. PASSED AND ADOPTED at a regular meeting of the Town Council on August 17,2005, by the following vote: AYES: NOES: ABSTAIN: , ATTEST: COUNCILMEMBER$: COUNCILMEMBERS: COUNCILMEMBERS: MILES BERGER, MAYOR DIANE CRANE IACOPI, TOWN CLERK TIBURON TOWN COUNCIL H:\Dwatrous\resolutions\tc30501.resolution.doc RESOLUTION NO. (Draft)-2005 AUGUST 17,2005 2 EXHIBIT NO. 2- 4 RESOLUTION NO. 2005-10 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON RECOMMENDING TO THE TOWN COUNCIL APPROVAL OF AN AMENDMENT TO THE ROUND HILL OAKS. PRECISE DEVELOPMENT PLAN (PO #36) FOR PROPERTY LOCATED AT 10 ROUND HILL TERRACE LOT 4, ROUND HILL OAKS SUBDIVISION ASSESSOR PARCEL NO. 058-301-42 . WHEREAS, the Planning Commission of the Town of Tiburon does resolve as follows: Section 1. FindinQs. A. The Town has received and considered an application filed by Stephanie Cyr and Richard Donick for an amendment to the Round Hill Oaks Precise Development Plan (PO #36) to amend the primary building envelope for the property developed with an existing single- family residence at 10 Round Hill Terrace. The application consists of the following: 1. Application form and supplemental materials, dated June 2 and June 30, 2005 2. Site Plan and Building Envelope Plans, dated June 30,2005 B. The Planning Commission held a duly-noticed public hearing on July 27,2005, and heard and considered testimony from interested persons. C. The Planning Commission has found that the project is exempt from the requirements of the California Environmental Quality Act per Section 15301 of the CEQA Guidelines. . D. The Planning. Commission finds, based upon application materials and analysis presented in the July 27,2005 Staff Report, as well as visits to the site and testimony received from the applicant, that the project is generally consistent with the overall intentions of the Round Hill Oaks Precise Development Plan. The modified primary building envelope would improve the access to outdoor living areas on this property without resulting in impacts on nearby homes and while still providing an adequate buffer to the adjacent open space area. E. The Planning Commission finds the project to be consistent with the goals and policies of the Tiburon General Plan. Open Space and Conservation Element Policy OSC-2 states that "while accommodation of growth is an accepted reality, it should be so directed as to preserve and enhance views, ridgelines, significant vegetation, habitats and environmentally sensitive areas to the maximum extent feasible. New development shall be in harmony with adjacent neighborhoods and surrounding open space areas. n The proposed primary building envelope expansion would not result in any impacts on nearby residential properties, and would still provide an appropriate buffer between the envelope and the adjacent open space area. Section 2. Aooroval. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission recommends approval of the amendment to the primary building envelope for Lot 4 (10 Round Hill Terrace) of the Round Hill Oaks Precise Development Plan (PO #36) to the Town Council, subject to the following conditions: TIBURON PLANNING COMMISSION RESOLUTION NO. 2005-10 JULY 27, 2005 . EXHIBIT NO. 3 . . . 1. The approved primary building envelope for the property at 10 Round Hill Terrace shall be amended as reflected on the Site Plan, prepared by Weir/Andrewson Associates, Inc., dated May 24,2005 (one sheet), attached as Exhibit "A" 2. This Precise Development Plan Amendment approval shall be valid for 36 months following its effective date, and shall expire unless subsequent zoning and/or building permits have been issued pursuant to this approval. A time extension may be granted if such request is filed prior to the expiration date. 3. This approval shall in no way alter other provisions of the Round Hill Oaks Precise Development Plan not speCifically described herein. PASSED AND ADOPTED at a regular meeting of the Tiburon Planning Commission on July 27,2005, by the following vote: ' AYES: COMMISSIONERS: KUNZWEILER, AGUIRE, COLLINS, FRASER AND SNOW NOES: ABSENT: COMMISSIONERS: NONE COMMISSIONERS: NONE JOHN KUNZWEILER, CHAIRMAN Tiburon Planning Commission ATTEST: DANIEL M. WATROUS, SECRETARY H :dwatrous\resolutions\pc3050 1.resolution .doc TIBURON PLANNING COMMISSION RESOLUTION NO. 2005-10 2 JULY 27, 2005 EXHIBIT NO. ,-3 '. Town of Tiburon STAFF REPORT AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: PLANNING COMMISSION SUBJECT: DANIEL M. WATROUS, PLANNING MANAGER FILE #30501: AMENDMENT TO THE ROUND HILL OAKS PRECISE DEVELOPMENT PLAN (PD #36) TO AMEND A BUILDING ENVELOPE; 10 ROUND HILL TERRACE; STEPHANIE CYR AND RICHARD DONICK, OWNERS; WEIRlANDREWSON ASSOCIATES, INC., APPLICANT; ASSESSOR'S PARCEL NO. 058-301-42 FROM: MEETING DATE: JULY 27,2005 REVIEWED BY: SA PROJECT DATA Address: Assessor's Parcel Number: File Number: Lot Size: General Plan: Zoning: , Subdivision: Current Use: Owners: Applicant: Date Complete: Preliminary CEQA Determination: 10 Round Hill Terrace 058-301-42 30501 55,757 square feet , Medium Density Residential RPD (Round Hill Oaks Precise Development Plan, PD #36) Round Hill Oaks, PM 1999-164 (Lot 4) Single-Family Residential Stephanie Cyr and Richard Donick Weir/Andrewson Associates, Inc. July 7, 2005 July 22, 2005 . PROJECT DESCRIPTION The project is the proposed amendment to a precise development plan (the Round Hill Oaks Precise Development Plan) for property located at10 Round Hill Terrace. The applicant proposes to amend the primary building envelope for this lot. . The Round Hill Oaks Precise Development Plan was approved by the Town Council in 1998, and established primary and secondary building envelopes for each of the four parcels in the subdivision. The owners of the property at 10 Round Hill Terrace now propose to modify the approved primary building envelope for their lot. The primary building envelope would be expanded to the north near the existing stairway entrance to the house. The requested change would improve the access to the outdoor living, areas on the northern portion of this sloping property. . EXHIBIT NO. '-f f' . . . Town of Tiburon STAFF REPORT ANAL YSIS Proiect Desion The applicants have requested to modify the primary building envelope for this property in order to improve connections to the outdoor living areas on the northern side of the property. The current design of the house and exterior stairway allows access to a terrace and garden area on this side of the house only through an interior guest bedroom. The applicants propose to redesign the exterior entry stairway to provide more direct access to this area. A new enclosed storage room would be constructed under the modified stairway. As the existing stairway is directly adjacent to the approved primary building envelope boundary, a small extension of this envelope would be required to construct these improvements. ^, The proposed improvements would only be marginally visible from neighboring properties, and would not interfere with any views from adjacent homes. Any additional building mass associated with the proposed improvements would be consistent with the existing stone-faced stairway area at this end of the house, and would not result in a significant change to the overall exterior design of the house. Compliance with the Round Hill Oaks Precise Development Plan The Round Hill Oaks Precise Development Plan clustered three of the four residential lots in this subdivision at the end of a private roadway. The subject property is the last and highest of these three clustered lots along this roadway. Much of the uphill portion of the site and existing oak woodlands were preserved as private open space area. The primary and secondary building envelopes established by the Round Hill Oaks Precise Development Plan were designed to allow adequate space for the development of each parcel, while providing a buffer between the envelopes and nearby private open space areas. Although the comer of the proposed primary building envelope alignment would be slightly closer to the adjacent private open space on this lot, a substantial buffer would still remain between the envelope and the open space boundary. This design therefore appears to be consistent with the intent of the Round Hill Oaks Precise Development Plan. General Plan Consistency The proposed project has been reviewed for consistency with the Tiburon General Plan and with the requirements of the Tiburon Zoning Ordinance regarding precise plan amendments. Open Space and Conservation Element Policy OSC-2states that "while accommodation of growth is an accepted reality, it should be so directed as to preserve and enhance views, ridgelines, significant vegetation, habitats and environmentally sensitive areas to the maximum extent feasible. New development shall be in harmony with adjacent neighborhoods and surrounding open space areas." As noted previously, the proposed primary building envelope expansion would not result in any impacts on nearby residential properties, and would still provide an appropriate buffer between the envelope and the adjacent open space area. EXHIBIT NO. L{ July 27, 2005 page 2 of 3 Town of Tiburon ~ -STAFF REPORT ENVIRONMENTAL REVIEW Staff has preliminarily determined that the subject application is categorically exempt from the requirements of CEQA per Section 15301 of the CEQA Guidelines. FUTURE ACTIONS REQUIRED Any affirmative action by the Planning Commission's on this project would be in the form of a recommendation to the Town Council. Should the Commission vote to deny the project, that decision would be final, unless appealed to the Town Council. If the amendment to the precise plan is approved by the Town Council, subsequent Town permits would include Site Plan and Architectural Review and building permits for the proposed improvements. CONCLUSION The proposed amendment to the primary building envelope would be minor and would improve the access to outdoor living areas of the subject property without resulting in any impacts on nearby homes, while still providing an adequate bufferto the adjacent open space area. The overall design of the project would be consistent with the overall intent of the Round Hill Oaks . Precise Development Plan. RECOMMENDATION Staff recommends that the Planning Commission: 1. Hold a public hearing on this application; and 2. Consider the draft resolution recommending approval to the Town Council of the amendment to the Round Hill Oaks Precise Development Plan for the property at 10 Round Hill Terrace. EXHIBITS 1. Application form and supplemental information 2. Draft resolution 3. Submitted plans . EXHIBIT NO. 4 July 27, 2005 page 3 of 3 . Q][ffiL%[Fu frequency percentages that Commissioner Collins questioned are higher than those found in most other such studies in Tiburon, presumably due to the proposed existence of two wireless facilities in the tower. Commissioner Collins commented on the conclusions in the report prepared by Hammett and Edison, Inc. and asked why the reports state that Cingular Wireless "can" comply with the prevailing standards for limiting human exposure to radio frequency energy rather than "will" comply. Ms. Nobel replied that Cmgular is required by the FCC to comply with the standards. ' Chair Kunzweiler expressed concern over the visual appearance of the facility and said that the renderings do make it appear to be invisible as the application claims. He said that he recognizes the significant need for.improved cellular service but commented that the clock tower is a focal point for the town and that he is concerned that the facility would disrupt its. design. Ms. Nobel said that the intention is to put the antennas on the inside of the building, and they would abide by a condition of approval that the antennas be flush-mounted and not stand out visually. Commissioner Aguirre noted that the application clearly states that panels will be installed on the exterior of the tower. . Cominissioner Collins spoke to the draft standards and criteria for wireless communications facilities currently under review, and asked if language could be added to the resolution referring to compliance with the new standards. Planning Manager Watrous replied that the resolution cannot reference ,standards that have not yet been adopted. " Commissioner Collins asked about the frequency of reviews for this facility. Planning Manager Watrous replied that th~ approval of this application would be only for one year, and would return to the Commission after one year for a five year extension. Commissioner Collins questioned language in the draft resolution about the standard performance agreement. Planning Manager Watrous cautioned against deleting any language written by the Town Attorney. Chair Kunzweiler recommended that rather than altering the language in the resolution, that the Commission recommend that the Town Attorney determine the appropriate language in any agreements. M/S Collins/Snow (5-0) to recommend adoption of the resolution with modified conditions of approval to require review of any agreements by the town Attorney and requiring that the antennas be mounted inside the clock tower with transparent siding to leave the building appearance unchanged. 3. 10 ROUND HILL TERRACE; FILE #30501; AMENDMENT TO THE ROUND HILL OAKS PRECISE DEVELOPMENT PLAN (pD #36) TO AMEND A BUILDING ENVELOPE; Stephanie Cyr and Richard Donick, Owners; Wier/Andrewson Associates, Inc., Applicant; Assessor's Parcel No. 058-301-42 ' . EXHIBIT NO. ? p, ,() r 2- TIBURON PLANNING COMMISSION MINUTES OF JULY 27. 2005 MINUTES # 919 Page 4 [0) [R1L% [Fu' Richard Donnick, applicant, reviewed his application to ame. nd the building envelope at . his residence to improve access to the outdoor living areas on the northern portion of the property. Commissioner Collins asked the applicant if he plans to install a planter where the retaining wall is located. The applicant replied that they have not decided, but that they will make the [mished project aesthetically pleasing. Commissioner Aguirre asked the applicant if they have plans to put in new lighting where the steps are. Mr. Donnick replied that they plan to change the lighting to make it dimmer than it currently is. Planning Manager Watrous informed the Commission that the project will be required to iriclude downlights as part of the design review process. The public hearing was opened. Ian Schwartz, adjacent property owner, said that he supports the application without reservation. The public hearing was closed. Commissioner Snow said that this was a rather small request, but quite appropriate, and noted that the neighbors support the application. Commissioner Collins said that he supports the application and added that the changes will improve the appearance of the house. . MIS AguirrelFraser (5-0) to adopt the.resolution recommending approval of the application to the Town Council. MINUTES 4. Planning Commission Minutes - Regular Meeting of July 13, 2005 M/S Snow/Aguirre (5-0) to approve the minutes as submitted. ADJOURNMENT The meeting was adjourned at 8:30 p.rn. JOHN KUNZWEILER, CHAIRMAN Tiburon Planning Commission EXHIBIT NO. r 5 . 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IJl Ul )- VI ~ ~ ~.::..' .. 0000 ()::: ~ ~ ). ,-< -0'0 -0 VI "-l "-l .... :- ~~ ~: - " il~l: I~I I II ;;; ~ '5 REPAIR & IMPROVEMENTS PHASE, 3 THE DONICK RESIDENCE o ROUNDHILL TERRACE TIBURON CALIFORNIA o ~ ~ ~ > ~ ~ ~ m ~ ~ 8 I o )> U1 . ---J ~ ~g ~~ ~:r r ,~ ~ ~I~; '7.1: t:; ~~ ~ ~j (l "it! ~~1 fJ'U) (;\iil I'\J \.' -\ -~ 1110' ~~11:1; ~~ ,)~~j,~ /: l\i,ili 0~ it! -nill 1I1,. -Ill ,\i'~\: ~~: ~') l' ,/~' J n/ "I J~: , I, > I ,;x: ~ 'I~~ t~' I IH " ' '" "x ^ " ,- () ;H " III " ^ ~ ;il AI (1) ~~ llJ (I> '" 111 (~ * ~ ~ ~ ~i ;': I.' _, ,; ~:~ -0 -. ~ 111 111 () _,' AI '" \ '" [ [. \ L I ' -- , ~\;\~ -y, iD .~.C" ~CQ9~-=cc\J~)L)11 F.-. "'---'--=-~~ ~\"'='--II t ~\<~ \ I 1 ll: I~ II Ii,: 'I ------------.--....--------------.,f____LL ~-~~----------------,jI I)G~) G<~ ~JII~ ~~~ it!.UV !II~ Viti (.\111 '" " =<lI> t--I -It) ()z rIll () G I!! X ~H X rn ~ .~ ~ ~ 0 ~ ~~ -{ fj (j) r (I' rn 1.. CJ rn -j )> r @ ,77=7 / Z i rn f ~ I -j I ~ , ~ n rn U AI ~~~ / Z :~ (;'1 -) (;.) 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REPAIR & IMPROVEMENTS PHASE 3 THE DONICK RESIDENCE o ROUNDHILL TERRACE TIBURON CALIFORNIA o ~ ~ (Jl CJ ~ Z ~ o X Q -1 rn Z (j) o z CJ rn -j )> r ~ ~ ~ i ~ ~ ~ ~ ~ ~ m ~ ~ m < ~ 8 I o )> U"1 . t'V ~ !s ~~ ~'" r "~ ~ , . Town of Tiburon STAFF REPORT . . If AGENDA ITEM TO: Mayor and Members of the Town Council Pat Echols, Director of Public Worksl Town Engineer r1-- Appeal of Encroachment Permit Conditions for Installation of Fence and Gate at 696 Hilary Drive FROM: SUBJECT: MEETING DATE: August 17, 2005 REVIEWED BY: BACKGROUND AND DISCUSSION This appeal arises from a fence constructed at 696 Hilary Drive without any Town design review approval, building permit or encroachment permit. All three are required for this type of project. Staff has been working with Marc and Jean Gineris, appellants and owners of the subject property, to bring their project in to conformance with Town law and policies. Appellants are currently challenging the conditions of approval imposed on their encroachment permit. Staff has worked with the appellants to bring this project into conformity for almost a full year. On September 23, 2004, the Building Official issued a stop work order for the fence construction. According to the owners, the fence was a replacement fence. Exhibit 2 shows the previous fence, in a significantly different location than the current structure., ' The owners subsequently applied for a fence permit from the Community Development Department on April 8, 2005. After due consideration, Community Development staff denied the application on May 10th (see Exhibit 3) because it did not comply with Town Administrative Policy 03-01, which requires entry gates to be set back at least 15 feet from the street curb. In addition, the fence was within the customary three-foot setback from the rolled curb, creating a potential hazard. Staff also observed that the applicants had constructed a non-conforming concrete driveway approach/apron without Town permits. On May 31, 2005, appellants submitted an encroachment permit application for the fence. On June 13th, the Town issued the encroachment permit with the setback conditions noted in Exhibit 4. The appellants objected to the 3-foot setback requirement due to the presence of a large tree which would prevent the fence from being placed at such a setback. As an accommodation, staff offered to allow the portion of the fence in the immediate vicinity of the tree to be set back at a lesser distance to accommodate the tree. Staff has prepared a site plan (Exhibit 5) depicting the existing fence ~ayout and a potential layout which would conform to the permit conditions (including the accommodation). The applicants rejected this offer. Accordingly, the applicants were advised to move the fence back in accordance with staff requirements; alternatively, they could opt to appeal the decision to the Town Council. PS ~ August 11, 2005 10f 2 Town of Tiburon STAFF REPORT AGENDA ITEM The. appellants contend that, because the new fence was replacing an older fence in the same location, they should be 'grandfathered' and allowed to put the new fence in the same location. However, the Town's policy is that any new structures conform to current requirements. Appellants also argue that there are many private encroachments in the area that are within 3 feet of the street curb. Although this may be the case in some circumstances, none of the addresses cited by the ;fppellant were granted encroachment permits for fences withinthe last four years{ ej .Q)!..e cfyz'V---<-~ re c.t'/~{{ Furthermore, the Town prohibits such encroachments as they tend to create 'tunnel' effects in neighborhoods. Aside from being unsightly, these tunnels are, unsafe for pedestrians, because they leave no refuge from oncoming traffic. Additionally, such conditions typically cause vehicles to park several feet from the curb in order to open ,doors and it limits the street sweeper's ability to clean debris from curbs and gutters. As properties are redeveloped and older fences replaced, staff intends to continue to implement its setback policy in an effort to create safer and cleaner street environments. Staff solicited feedback from Public Works Departments throughout Marin County regarding their fence encroachment policies. Mill Valley and Novato have very similar policies for the same reasons. Belvedere is considering a similar policy. Corte Madera has a 6-foot setback for such fences. We note that other Bay Area communities (including Ross and Atherton) do not allow any fences within the public right-of-way at all. If the Town were to adopt such a policy, appellants' fence would need to be set back approximately ,6 feet or more from the street curb. RECOMMENDATION It is recommended that the Town Council take the following actions: 1. Receive presentation from the appellant; 2. Invite public comments; 3. Indicate its intention to deny the appeal, uphold the conditions of encroachment permit approval and direct staff to return with a Resolution denying the appeal, for adoption at the next Council meeting; and. 4. Direct appellants to relocate the fence to conform to the permit conditions. EXHIBITS 1. 2. 3. 4. 5. Photo of new fence Photos of previous fence May 10, 2005 Planning Division memo Encroachment Permit Site Plan ../ . c;..,-/~e ) . . August 11, 2005 2of2 . Photo of new fence at 696 Hilary Drive . &-t-n B, L T I' . . . Photos of previous fence at 696 Hilary Drive . . . From the office of Assistant PlannerKrasnovel 415,435,7397 Tiburon Planning Division Gene Generis 696 Hilary Drive Tiburon, CA 94920 RE: FENCE AND DRIVEWAY GATE AT 696 HILARY DRIVE; FILE # 705053 May 10, 2005 Dear Ms. Generis, Due to the location of the subject fence within the Town's right-of-way, an Encroachm.ent Permit must be issued by the Town Engineer in addition to the Site Plan and Architectural Review application. For this reason Staff routed the subject fence application to the Public Works Department for review. Pat Echols, the Town Engineer, enforces the requirement that structures be located a minimum of three feet from the roadway, so Mr. Echols will not approve the fence in its current location. In addition to denial by the Public Works Department, an administrative policy requires vehicle entry gates to be located at least 15 feet from the roadway. For these reasons Planning Staff must deny your Site Plan and Architectural Review application for the subject fence and driveway gate. At this point Staff would recommend that you remove the existing fencing and submit an application for a fence that complies with Town standards; however, if you wish to appeal the decision of the Town Engineer to the Town Council, you may submit an appeal form. If you have any questions please call me directly at (415) 435-7397. Sincerely, Kristin Krasnove Assistant Planner Cc: Dean Bloomquist Building Official Pat Echols Town Engineer ,- c 'lib Bt -;- :3 M,sD yJ. .~ -4 ENCROACHMENT PERMIT APPUCATION , . Town ofTiburon · 150$ Tiburon Boulevard · Tiburo1;l, CA 94920 · (415) 435-7354 -- . , ' , ", J' '~O~TJ~EOI i ~." ' '.~.' _ . D ~ iii ~ ~ Wi ~.. croacbment Penolt No:. C,!(- 'l-b, S~ S-/f?'l""h"L .' ", ateReceived: "-,,I, 3.hS- '/ 15 :z.~ff' JUN 13 2005 ' Phin Attached: D y~ ~ No I ~ ~tos ..a~'u,' ~ r~I'::1J 0rTlDtJR0/1 . ~ Inspection R~' Contact TonyIacop~ Deputy Director of Public Works, at 435-7399. ,0 No Insp'ection Required. ' ' , Payment Amt rf.. Check No: o Cash Notes: CONDmONS OF APPROVAL: SE~ A-n-A~H€~ C6NbfT{bJJS,. \" { , ~-13-o-S- Approval Date , , APPUCATIeNINFORMATI.ON'. Basic applications (e.g., driveway resur1Bcing or routine utility c:onneCtions) are reviewed by the Deputy Director of Public Works and usually granted within 5 to 7.business days. The basic Encroachment Application fee is $90. Applications for more involved projects are reviewed by the ToWn Engineer. The applicant maybe charged an additional fee for applications , , requiring review by the TowpEngineer. After the enCroachmentapplicaticm has been reviewed and granted by either the . Dep~~ 0, fPilblic .WorkB or~ ToWn En~, ~applicantwillbe, ~otifi~ to pic,.kUP a copy of the a~~ed .. f!PPlication which. serves as, the pcmut When the proJect IS, completed, a final mspecnol;l, may be performed by the Deputy Director ofPubIic Wotks and/or Town Engineer; . ' , , {oqb" /i-don D(lVe" :,-,':R-nokfr/,! Location ofWor '~,Nearest Cross Street {Yl1t(Ze; A. -GINEle ; S N&me()fProl'erty Owner ' 70 - 2-2. I( ,I ar-;t-OJA, tree'.. ,thlS-~~.j;ed Co~plMion Date~i.:Nt I ~ ~ooh4ve2 o(V1Q~b Nameofco~~s~S"s- License No. \7t,o) &308 - otfB 1 (Area Code) Phone Number The undersigned hereby applies for pemiission to petfoIIn the above descnbed work andlor otherwise encroach OD Town of Aburonright-of-way or property pursuant to any required building permits. Applicant agrees that all work shall be ~ormed in accordaDce with the.rules, regulations and standards of the Town of Tiburon, in additioD to the GeDeraJ Provisio~or Special CODditiODS as applicable. All work shall be subject to inspection and approval by the. Public Works Department. Applicantagrees to ind~nify,defend and hold the Town ofTiburon, and its emPloyees, agents, and officials, harmless from any claims, losses or ~s that may arise from Applicant's exercise oftbis encroachment permit and any otherpennit granted by the Town. ' Applicant~s Si:nature:~ ~ :EstimAt~ctS .,.'cJ)j~;. AW '" fnA ftc.. A" c;JtJE ({. t 5 Name of Applicant ("2.(2.) <a~- '3'::/-11- (Area Code) Phone Number ~KH \1) IT 4 I 1 Date:' -5/5} 1200S- . , . , Town ofTIburon 0 1505TIburon.Boulevard oTIburon, CA 949200 P. 415.435.7373 E 415.435.2438 0 www.ci.riburon.ca.us Conditions of Approval - Encroachment Permit No. 05-40 696 Hilary Drive 1. Fence shall he a minimum on feet from the curb, except in the imm~iate vicinity of the existing tree where it may be located in front of the tree (approximately 22 inches from the curb). ' 2. PursuanUo Town Administrative Pollct 03-01, the entry gate shall be set , backatJeast 15Jeet.fromthe curb. , ~ . ~I . . .---'" 2xJ~1 S Ll :S