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Home My WebLink AboutTC Agd Pkt 2005-10-05 ~,,, . . TOWN OF TIBURON Town Council Chambers 1505 Tiburon Boulevard Tiburon, CA 94920 October 5, 2005 .6:15 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.cLtiburon.ca.us. . Upon request, the Town will provide written agenda materials in appropriClte alternative formats, or disability-related modification or accommodation, including auxiliary aids or services, to enable . individuals with disabilities to participate in public meetings. Please send a written request, including your name, mailing address, phone number and brief description of the requested materials and preferred alternative format or auxiliary aid or service at least 5 days before the meeting. Requests should be sent to the Office of the Town Clerk at the above address. PUBLIC HEARINGS Public Hearings provide the general public and interested parties' an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court; you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). . TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. .': . ~ .t; I . . () (Ie ,4(A-?v,f'( C~ - , . ..~ Agenda - Town Council Meeting October 5,2005 Page 2 of 5 . AGENDA CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - (Section 54956.9(a)) Town of Tiburon v. Sylvia CONFERENCE WITH LEGAL COUNSEL - THREATENED LITIGATION (Section 54956.9(b) Threatened Litigation by County of Marin PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Section 54957) Title: Town Manager Town Attorney 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 be approved by one motion of the Town Council unless a request is made by a member of the public, staff or Town Council that an item be transferred to the Regular Agenda for separate discussion and consideration. Likewise, any item on the Regular Agenda may be moved to the Consent Calendar. If you would like to speak on any of these items on the Consent Calendar below, please do so now. 1. Approval of Town Council Minutes - September 21, 2005 2. Recommendation by Director of Public WorkslTown Engineer - Accept Trestle Glen Bicycle and Pedestrian Pathway Improvements as Complete . a) A Resolution of the Town Council of the Town of Tiburon Accepting Trestle Glen Pedestrian Pathway Phase 1 Project ~ . . . Agenda.;.... Town Council Meeting October 5, 2005 Page 3 of 5 3. Recommendation by Director of Public WorksfTown Engineer - Adopt Town Policy Regarding Street Repairs in Conjunction with Rule 20B Utility Undergrounding Projects 4. Recommendation by Director of Public WorksfTown Engineer - Adopt Town Policy for Fences Constructed in Public Right-of-Way 5. Recommendation by Town Manager - Recognition of Town Employees Kevin Bryant and Pat Echols upon their Departure- (to' be presented at Council meeting) a) . A Resolution of the Town Council of the Town of Tiburon Commending Advance Planner Kevin Bryant for his Distinguished Service to the Town of Tiburon b) A Resolution of the Town Council of the Town of Tiburon Commending Director of Public Works/Town Engineer Patrick Echols for his Distinguished Service to the Town of Tiburon 6. Recommendation by Town Manager - Authorize Request for Proposal to Retain Consultant for Organizational and Operational Review and Analysis 'of the Belvedere- Tiburon Joint Recreation Department 7. Recommendationby Town Attorney - Accept Moitoza and Las Lomas Lanes as Public Recreational Trails and Rights-of-Way for Purposes of Maintenance by Town a) A Resolution of the Town Council of the Town of Tiburon' Accepting Moitoza and Las Lomas Lanes REGULAR AGENDA 8. Recommendation byDirector of Administrative Services - Adoption of Town Risk Management Program and Policy a) A Resolution of the Town Council of the Town of Tiburon Adopting a Risk Management Program 9. Recommendation by Director of Public WorksITown Engineer - Adoptior'}):>f Hazard Mitigation Plan a) A Resolution of the Town Council of the Town of Tib1.Jron Adopting the Association of Bay Area Government's Report Taming Natural Disasters as the Town of Tiburon's Local Hazard Mitigation Plan . . . PUBLIC HEARING Agenda - Town Council Meeting October 5, 2005 Page 4 of 5 10. Recommendation by Town Attorney and Director of Community Development - Economic Exception Ordinance Second Reading and Adoption of Ordinance a) An Ordinance of the Town Council of the Town of Tiburon Adding a new Article VII to Title IV, Chapter 16 of the Tiburon Municipal Code regarding Economic Exceptions 11. . Recommendation by Town Attorney and Director of Public WorkslTown Engineer - Town Ordinance pertaining to Encroachments in Public Right-of-Way . Introduction and First Reading of Ordinance a) An Ordinance of the Town Council of the Town of Tiburon Repealing existing Chapter 19 (Encroachments) of the Tib.uron Municipal Code and replacement with a new Chapter 19 (Encroachments, General) and adding a new Chapter19A (Use of Public Right~of-Way) to the Tiburon Municipal Code COUNCIL AND COMMITTEE REPORTS WRITTEN COMMUNICATIONS Town Council Weekly Digest - September 23,2005 Town Council Weekly Digest - September 30, 2005 ADJOURNMENT FUTURE TOWN COUNCIL MEETINGS: . October 19,2005 . November 2, 2005 . November 16, 2005 . December 7,2005 MEETINGS & ACTIVITIES: . LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE - October 5-8, 2005 (Moscone Center, San Francisco) . RUSD SCHOOL BOARD CANDIDATE FORUM - Tuesday, October 11,2005- 7:00 p.m. (Town Council Chambers) I fi -< . . . . . . .. . . . . . Agenda - Town Council Meeting October 5, 2005 Page 5 of 5 . FAREWELL LUNCH (for Kevin Bryant and Pat Echols) - Friday, October 14,2005 -12:00 p.m. (Guaymas) . TOWN COUNCIL CANDIDATE FORUM - Tuesday, October 18, 2005- 7:00 p.m. (Town Council Chambers) . . EMPLOYEE APPRECIATION EVENT - Frid9y, October 21,2005 - 4:00 p.m. (Ferry Landing) . MUNICIPAL ELECTION (TOWN COUNCIL) - Tuesday, November 8, 2005 . TOWN COUNCILlRUSD JT. MEETING,- Wednesday, November 30,2005- 7:30 p.m. (Town Council Chambers) . TOWN HOLIDAY PARTY - Wednesday, December 14, 2005- 6:00 p.m. (Town Council Chambers) FUTURE AGENDA ITEMS - Note: These items are tentative until they appear on the final aaenda Appeal of Planning Commission Denial of Conditional Use Permit Application for 2nd Story Banquet Facility Expansion Plan for Caprice Restaurant - (October 19) 1 sl Quarter Financial Report - (Qctober 19) . Redevelopment Agency Annual Report,- (October19) Annual COPS Resolution - (October 19) Appeal of Design Review Board Approval of Site Plan and Architectural Review - 77 Round Hill Road - (November 2) . South Knoll Playground Renovation Award of Contract Award of ContraCt to Televise Storm Drains Award of Contract/Railroad Marsh Maintenance and Cat-tail Removal Wireless Communication Facilities Ordinance .. !'-. '.J""" 1Je #.- Al I . TOWN COUNCIL MINUTES CALL TO ORDER ROLL CALL PRESENT: COUNCILMEMBERS: Berger, Fredericks, Slavitz, Smith ABSENT: COUNCILMEMBERS: Gram PRESENT: EX OFFICIO: Town Manager McIntyre, Town Attorney Danforth, DireCtor of Community Development Anderson, Director of Public Works IT own Engineer Echols, Chief of Police Odetto, Director of Administrattve Services Bigall, Project Coordinator Bassett, Town Clerk Crane Iacopi . ORAL COMMUNICATIONS Town Manager McIntyre introduced the new Marin Municipal Water District General Manager, Dennis Reid, who was in the audience. REPORTS FROM TOWN BOARDS. COMMISSIONS AND COMMITTEES . Marin Commission on Aging - Allan Bortel Mr. Bortel said that he had begun hi~ second term as the Town's representative to the Mari . Commission on Aging, a 23-person commission formed under the auspices of the Older Americans Act of which there were 600 such commissions around the country. He listed some of the Commission's accomplishments, such as helping to the establish the Buck Center. He said the Commission met monthly and advocated on behalf of seniors (those over 60 years of age under the Older Americans Act). Ofthe 7,000 seniors in Marin. County, Mr. Bortel said that 30% lived alone and that the Commission attempted to end this isolation and bring seniors "into the mainstream" through various programs and services. . Town Council Minutes # 21-2005 September 21,2005 Page 1 -Ct One service advocated by the Commission in the previous year was for Measure A funding for paratransit taxi service. Another issue was affordable, assisted living, and Mr. Bortel described the shared housing program started by the Commission which was no an official program of the Ecumenical Association for Housing. . Mr. Bortel spoke of the growing need for affordable, assisted living housing within the County. He said that there was a 7-year waiting list at the Redwoods, and that only half of their housing units were "affordable." He said that he had testified in favor of senior affordable housing at the St. Vincent/Silveira property hearings but that this housing, if approved, was eight or ten years away. Council thanked Mr. Bortel for his report. CONSENT CALENDAR At the request of a member of the public, Council pulled No.5 from the Consent Calendar. 1. Approval of Town Council Minutes - September 7,2005 2. Recommendation by Director of Administrative Services -'Accept Town Monthly Investment Summary - August 2005 3. Recommendation by Director of Public Works/Town Engineer - Accept 2004-05 . . Street Rehabilitation Projectas Complete a) A Resolution ofthe Town Council ofthe Town ofTiburon Accepting 2005 Street Rehabilitation Program 4. Recolnmendation by Director of Public Works/Town Engineer - List of Streets for 2005-06 Street Rehabilitation Project 5. Recommendation by Project Coordinator - Approval of Lyford Cove Utility Undergrounding Assessment District Plans and Specifications for Re-bid of Contract 6. Recommendation by Advance Planner - Annual General Plan Status Report for FY 2004-2005 7. Recommendation by Director of Community Development - Application for Irrigation Well Permit - continued from August 17, 2005 Property Owner: Address: Assessor Parcel No. - Sharam Tajback 3 Francisco Vista 039-111-11 Town Council Minutes # 21-2005' September 21,2005 Page 2 . -.: . . . MOTION: Moved: Vote: To approve Consent Calendar Item Nos. 1-4; 6 & 7 above. Fredericks, seconded by Slavitz AYES: Unanimous ABSENT: Gram No.5 - Consent Calendar: Recominendation by Project Coordinator-Approval of Lyford Cove UtilityUndergrounding Assessment District Plans and Specifications for Re-Bid of Contract. August Strotz, 2070 Centro East, addressed several issues. He said that 1) it was difficult to find his way through the bid documents and that it would also difficult for potential bidders; 2) the $1,000 per day late penalty was too high (he suggested $200/day); and that 3) the portion ofthe bid pertaining to laterals should be "rearranged" for easier reading and to coincide with the drawings. Mr. Strotz also stated emphatically that he was NOT opposed to undergrounding because he thought it would enhance the neighborhood; he said that his objection was to the equal division of the cost. He said that Lyford was the only undergrounding assessment district assessed in this manner and quoted an article in the Ark about a recently-formed district in Belvedere that was formed so that "those properties benefiting the most will be assessed the most." Mr. Strotz asked Council to consider his comments and delay approval of the item. Mayor Berger said that the late penalties were meant to be an impetus to finish the project; he asked Staff whether there was any financial consequence for the district if the project ran longer than expected. . Director of Public Works/Town Engineer Echols said that the first set of bid documents had an "aggressive time line" and that after speaking with contracts about the timeline, the second [current] set of documents had doubled the time for completion from 6 to 1 ~ months. Echols said that this timeline "should be easily accomplished" and that there was no long lead time involved in obtaining materials such as concrete and asphalt. Councilmember Fredericks noted that the late clause might not be invoked if there were circumstances beyond the contractor's control, such as materials being delayed from Louisiana and the Gulf States due to the recent hurricanes. . Councilmember Slavitz said that in the scope of a $3 million project, $1,000 per day late fees did not seem out of line. Mayor Berger agreed with Mr. Strotz that if the drawings were "impenetrable," the contracts might "pad" their bids. Town Council Minutes # 21-2005 September 21,2005 Page 3 :0 Project Coordinator Bassett said that the issue was the bid proposal itself rather than the . specifications. She agreed with Mr. Strotz that there was no apparent order to the portion pertaining to the 110 properties listed for lateral hook-ups. She said that it might be possible to "re-structure" this data within the bid documents. Finally, Mayor Berger said that this was not the proper time to discuss the issue of assessment spread but that the Council had thought about it and might consider discussion at a future time. MOTION: To approve the Lyford Cove plans and specification for re-bid after a "guide key" to the lateral properties was prepared by staff. Fredericks, seconded by Smith AYES: Unanimous ABSENT: Gram Moved: Vote: REGULAR AGENDA 8. Recommendation by Director of Public Works/Town Engineer - Affirm Town Council Prioritization of Rule 20A Public Utility Undergrounding Funds . Director of Public Works/Town Engineer Echols said that the Town's Rule 20A allocation credits, which were roughly equal to dollars, currently totaled 191,877. Echols said that both PGE and SBC had stated they were "five years out" on Rule 20A projects . and recommended that communities "get in line early" for future undergrounding projects. He said that"getting in line" would require project plans and preliminary district boundaries in order to qualify for funding. Echols asked the Council t9 affirm that Tiburon Boulevard was its priority for Rule 20A undergrounding funds and recommended certain projects, in order. He said that there were two areas for consideration: 1) Reed Ranch Road to Trestle Glen Boulevard; and 2) Tiburon Boulevard between Mar West Street and San Rafael Avenue. Mr. Echols said that the latter would realize more safety benefits and recommended it as the priority project. He estimated the undergrounding costs of the project at $1.2 million and recommended that it be broken into two phases; the first phase, Mar West to Ned's Way, could go first with an estimated project cost of $700,000. Councilmembef Slavitz asked how much the Reed Ranch Road to Trestle Glen Boulevard project would cost. Mr. Echols said that it would cost $600,000. Slavitz said that in his mind that area, at a lesser cost, should go first but he agreed that the Multi-Use Path in the area of Reed School would be more consistent with the "safe routes to school" program. Town Council Minutes # 21-2005 September 21,2005 Page 4 . r'1 J . . . Councilmember Smith asked ifpoles on both sides.ofTiburon Boulevard would come down; Director Echols affirmed this and said that it was required by Code. Mr. Echols said that his report covered what would be covered by Rule 20A funds but noted that the Town could supplement these funds which might enhance its position with the utility companies. Councilmember Fredericks said that the. Town would "still be in the queue" but . should move forward with project plans for the Tiburon Boulevard Rule 20A projects, in the order recommended. MOTION: Moved: Vote: To adopt Staffs recommendations pertaining to Rules 20A project priorities. Fredericks, seconded by Slavitz AYES: Unanimous ABSENT: . Gram 9. Recommendation by Director of Public Works/Town Engineer - Town Council Policy Regarding Street Repairs in Conjunction with Utility Undergrounding Projects Director of Public Works/Town Engineer Echols recommended a policy whereby street re-paving could be done in conjunction with utility undergrounding projects. He said that an "expectation" to re-pave streets had been created in the Stewart Drive undergrounding project but that, in fact, all that was required was "patching" the streets after trenches were cut and filled. This could be from a third to one half of the street, according to Echols. One way to address this issue, according to Echols, was to apply the cost of re-paving the streets to the 20B assessments. The Town could share in this cost or fully fund a slurry seal if the streets were already in good condition. The Town Engineer said that only streets above the 70 PCI [Pavement Management System rating] would be eligible for the slurry seal. Vice Mayor Smith expressed concern that adoption of this policy might "obligate" the Town to resurface streets and wondered what would happen if two or three large districts came on line at the same time. Mr. Echols said that if a street was not on the five-year [ street rehabilitation] list, it would not be eligible for the Town's cost-sharing arrangement but that the project residents could agree to assess themselves for the full value of resurfacing, ifthey chose to do so. Mr. Echols also said that the street re-paving portion could be an "alternate bid" portion of the project and that "budget protection" for the Town would be built into the policy. Mayor Berger asked how the costs would be folded into the assessments. Director Echols said that the terms would he spelled out in the district engineer's report and noted that current assessments already included "patching" of the streets. He said that street repaving would be an Town Council Minutes # 21-2005 September 21,2005 Page 5 additional benefit, particularly if the streets in the district were not in the five-year list for resurfacing maintained by the Town. Mayor Berger commented that this might be another issue for undergrounding district residents who were concerned with how to pay for their assessments. Mr. Echols said that the resurfacing would be offered as an option in the district engineer's report and would not be "forced" on people. Councilmember Fredericks said that it was a good plan. Vice Mayor Smith asked whether there was any discretion as to which streets would be resurfaced under this proposal. Mr. Echols said that the street rehabilitation program was based purely on a mathematical formula but that there was a list to cull from constantly, and that other factors played a role. He said these factors included geographical proximity, the timing of other utility work, etc. Council agreed to the policy in concept and directed Staff to return with a written policy. Council took Item No. 11 out of order. PUBLIC HEARING 11) Recommendation by Town Attorney and Director of Community Development - Economic Exception Ordinance - continued from September 7, 2005 Introduction and First Reading of Ordinance a) An Ordinance ofthe Town Council of the Town ofTiburon Adding a new Article VII to Title IV, Chapter 16 ofthe Tiburon Municipal Code regarding Economic Exceptions Town Attorney Danforth said that the revisions to the ordinance had created a "better and stronger" tool which would serve both the Town as a whole as well as the development community. She outlined the progression of changes in the staff report. Ms. Danforth said that the initial draft allowed the Community Development Director the ability to grant extensions to an applicant for an economic exception; at Council's request, the ordinance had been modified to allow applications only after a decision had been reached on a project's merits by either the Planning Commission or the Town Council. Ms. Danforth also said that revisions recommended by Last Chance Committee attorney Fran Layton were "reasonable and helpful" and had been incorporated into the current draft. These revisions clarified that the Town Council would retain jurisdiction over the process, and would require applications early in the process. Town Council Minutes # 21-2005 September 21, 2005 Page 6 , . . ( . '" I . . . The Town Attorney said that further revisions recommended by Ms. Layton were not necessarym but she recommended some typographical revisions to clarify the language in Section 16.7.3 which would address Ms. Layton's concerns. Community Development Director also pointed out some extraneous language on page 2, line 32. Ms. Danforth said that takings claims were very expensive and that although this type of ordinance had not been tested in the court of appeals, it would be a cost-saving measure to the Town even if employed only once in 10 years. Mayor Berger opened the public hearing. Jerry Riessen, 616 Ridge Road, said the ordinance, as amended, was "great." Mayor Berger closed the public hearing. Vice Mayor Smith asked whether there existed a potential to be "overwhelmed" by applications; Town Attorney Danforth replied that while where would be some imposition on staff time, the ordinance would probably not be invoked very often. Councilmember Slavitz added that the ordinance could be modified, if necessary, over time. Vice Mayor Smith asked whether adoption of the ordinance could be construed as encouraging the filing of claims. Also, that instead oftakings claims, the Town would face litigation over proper application of its ordinance. The Town Attorney commented that having an ordinance in place, along with the costs associated with hiring experts, would probably discourage the filing of frivolous claims. Councilmember Fredericks said that she did not share the concern that the ordinance would be used frivolously, and that the downside risks were certainly less than the cost oflitigating takings. claims. She said the new ordinance would provide a "safety net" for all parties and had the potential benefit of allowing developers to "work it out" with the Town Council. Mayor Berger agreed. In addition, he said that projects already received a thorough review through the CEQA process but that the economic portion, jf disputed, went to the courts. For this reason alone, having an ordinance in place that could address this issue was important. MOTION: Moved: Vote: To read ordinance by title only. Smith, seconded by Slavitz AYES: Unanimous ABSENT: . Gram Town_Council Minutes # 21-2005 September 21,2005 Page 7 \ Mayor Berger read, "An Ordinance ofthe Town Council ofthe Town ofTiburon adding a New Article VII to Title IV, Chapter 16 (Zoning) ofihe Tiburon Municipal Code Regarding Economic Exceptions. " .. MOTION: To pass first reading of above Ordinance, with typographical revisions as identified by the Town Attorney and Director of Community Development. Slavitz, seconded by Smith AYES: Berger, Fredericks, Slavitz, Smith ABSENT: Gram Moved: Vote: 10. Recommendationby Director of Community Development - New General Plan Implementation Program Prioritization Director of Community Development Anderson said that now that Tiburon 2020 had been. adopted, there was still much work to do for its implementation. The Director's staffreport listed the tasks associated with the implementation and asked for Council's concurrence on the ranking of these tasks. In response to a question from Councilmember Fredericks, Anderson said that while there were no mandatory State deadlines for implementation, the resulting inconsistencies between the Town's General Plan and zoning ordinance would be burdensome to both applicants and staff, until they were brought into alignment. Councilmember Fredericks asked whether the implementation tasks were something that existing Town staff could accomplish. Director Anderson replied that the Planning Division processes approximately 500 planning applications per year which required virtually all of the staffs time [excepting that of the Advance Planner]. He also noted that the budget called for the elimination of the Advance Planner position at the end of the calendar year. . Town Manager McIntyre said that the Town had spent a lot of money on a "fIrst class plan" but now faced the task of implementation of this plan. He said that even the highest priorities listed in Anderson's report would take one year to complete and that, in reality, the Town did not currently have theresources to accomplish this task. Mayor Berger pointed out that the Advance Planner, Kevin Bryant, was "up to speed on the plan." Town Manager McIntyre said that Bryant was seeking other employment because his contract with the Town was ending. He recommended that the Council consider the question of staffIng at a future meeting. Mayor Berger said that task Nos. HI9(a), HI9(d) and H-22, all pertaining to the downtown area, should be moved up to top priority. For example, he said that with the change of ownership of some downtown properties, it would be helpful for future owners/developers to have information on housing overlays and the like before filing applications with the Town. Town Council Minutes if 21-2005 September 21,2005 Page 8 . }'1 . . . Director Anderson agreed.. He said that existing. staff could make "significant progress" on the highest (No. I) priorities with an Advance Planner before the end of the calendar year but that the other priorities would take more time. Town Manager McIntyre clarified that all priorities (Nos. 1,2 &3) could all be accomplished in one year's time with an Advance Planner on staff. Councilmember Slavitz said that it was hard to imagine implementation of the General Plan without Mr. Bryant who had done such an excellent job working on the plan over the last three years. He said it was a tough decision to expand Town staffbutthat it was a good idea given the growth in the planning area. Councilmember Fredericks asked that any consideration of staffing be brought back to the Council accompanied by costs associated with space planning at Town Hall. Councilmember Slavitz also asked for a comparison of what it would cost to staff implementation of the plan in-house or by outside consultants. In summary, the Council agreed with the Director of Community Development's prioritization of the tasks associated with implementation of the new General Plan, with the addition of Mayor Berger's prioritizations, and agreed to explore the idea of staffing the Advance Planner position at a future meeting. COUNCIL AND COMMITTEE REPORTS Councilmember Fredericks reminded the Council ofthe MCCMC meeting on September 28 concerning joint efforts by cities, county and schools for school funding (Proposition 98). WRITTEN COMMUNICATIONS Town Council Weekly Digest - September 9,2005 Town Council Weekly Digest - September 16,2005 ADJOURNMENT / There being no further business before the Town Council ofthe Town of Tiburon, MayorBerger adjourned the meeting at 9: 1 0 p.m., to the next regular meeting scheduled for October 5, 2005. MILES BERGER, MAYOR Town Council Minutes # 21-2005 . September 21,2005 Page 9 ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town Council Minutes # 21-2005 September 21,2005 Page 10 '~I . . . . . . Town of Tiburon STAFF REPORT ~ AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: Mayor and Members of the Town Council Pat Echols, Director of Public WorkslTown Engineer FROM: SUBJECT: Accept Trestle Glen Pedestrian Pathway Phase 1 Project Contract as Complete . '. ~ MEETING DATE' October 5, 2005 REVIEWED BY: ~ . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . On April 20, 2005, the Tiburon Town Council awarded a contract to J.A. Gonsalves & Son Construction, Inc. in the amount of $196,690 for the Trestle Glen Pedestrian Pathway Phase 1 Project. The project was funded by a Bay Trail grant administered by the Association of Bay Area Governments (ABAG)and the California Coastal Conservancy. DISCUSSION Project construction commenced in mid-June and was completed in September. The work included new path construction between Hacienda Drive and Turtle Rock Court, access ramps, retaining wallconstruction, and enhancement of existing path between Turtle Rock Court and Juno Road. The final contract price was $198,565.50. Contract work was completed in substantial conformance with the project plans and specifications. ABAG accepted the work as complete on September 2 and approved the Town's reimbursement request. RECOMMENDATION It is recommended that the Town Council accept the contract work performed by J.A. Gonsalves & Son Construction, Inc. for the Trestle Glen Pedestrian Pathway Phase 1 Project as complete in accordance with the project specifications. - approve the attached resolution and direct staff to file a Notice of Completion. EXHIBIT Resolution RESOLUTION NO. XX-2005 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ACCEPTING TRESTLE GLEN PEDESTRIAN P A THW A Y PHASE 1 PROJECT WHEREAS, Patrick F. Echols, Town Engineer for the Trestle Glen Pedestrian Pathway Phase 1 Project has stated that, as of September 2005, the contract work was satisfactorily completed in accordance with the contract specifications awarded on April 20, 2005 J.A. Gonsalves & Son Construction, Inc., Napa, CA. NOW, THEREFORE, IT IS RESOLVED that the Town Council ofthe Town of Tiburon accepts the contract work as complete, which is more fully described in the aforementioned contract, located within the offices ofthe Town of Tiburon. PASSED AND ADOPTED at a regular meeting of the Town Council ofthe Town ofTiburon on, Wednesday, October 5, 2005, by the following vote: AYES: NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: MILES BERGER, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK -1- . . . I'~ i . Town of Tiburon STAFF REPORT . . 3 AGENDA ITEM . . . . . '. . . . . . . '. . . . . . . . . . . . ., . . . . . . . . . . . . . . . . . . . . . TO: Mayor and Members of the Town Council Pat Echols, Director of Public Worksl Town Engineer Ii:.- FROM: Adopt Street Resurfacing Policy for Rule 20B]tti . Undergrounding Districts MEETING DATE: October 5, 2005 REVIEWED BY: . SUBJECT: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DISCUSSION At its September 21, 2005 meeting, staff presented to the Town Council a policy concept regarding street resurfacing as part of Rule 20B utility undergrounding projects (see Exhibit 1). The Council concurred with the concepts and direct staff to prepare a formal policy for Council adoption. The policy is attached as Exhibit~. RECOMMENDATION It is recommended that the Town .Council consider adopt the attached resurfacing policy for Rule20B utility underground district streets. EXHIBITS 1. Staff Report from 9/21/05 Town Council meeting 2. Proposed Policy 1 of 1 . . . Town of Tiburon STAFF REPORT -i- AGENDA ITEM . . . . . . . . . . . . ." .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: Mayor and Membersofthe Town Council FROM: Pat Echols, Director of Public Worksl Town Engineer ~ SUBJECT: Adopt Policy for Fence Setbacks Within Public ~Of-way MEETING DATE: October 5, 2005 REVIEWED BY: ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DISCUSSION At its September 21, 2005 meeting, the Council denied an appeal of a fence setback condition imposed on an encroachment permit application. At issue was the Town Engineer's requirement that the fence be located at least 3 feet from the street. The Town has no formal, written policy and historically setback requirements have been the discretion of the Town Engineer. In denying the appeal, the Council also. directed staff to develop a formal policy regarding fence setbacks with the public right-of-way. The Council concurred with the concepts and direct staff to prepare a formal policy for Council adoption. The draft policy is attached as Exhibit 1. RECOMMENDATION It is recommended that the Town Council adopt the attached policy regarding fence setbacks within the public right-of-way. EXHIBITS 1. Draft Policy 1 of 1 TOWN OF TIBURON . Administrative Policy & Procedure Number: Effective: . Authority: ,_. " . - ,'. ,. 0' ",-. ,..,....... .', - .,'-", """".-,. ,. . Policy Regarding,,:,Fence SetbCl~kin the'PlIblicRigl1t;.of..VVCiY'" ' PURPOSE: Property owners frequentlyseek to enclose their property with fences. In most cases, the proposed fence location along the property frontage is within the Town's right-of-way. Because fences constructed immediately adjacent to public streets may pose a potential pedestrian safety hazard, vehicle sight distance limitation and impede vehicle parking/street sweeping, the Town has required new fences to be setback from the pavement to prevent these unwanted consequences. POLICY: . New fences constructed within the Town of Tiburon public right-of-way must be located at least 3 feet from the edge of the street pavement or curb, unless the Town Engineer determines that site conditions warrant any deviation. An encroachment permit is also required. APPROVED: Alex D. Mcintyre, Town Manager Date . , J.../e;tv M. 6 RESOLUTION NO. 49-2005 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON COMMENDING KEVIN BRYANT FOR HIS DISTINGUISHED SERVICE TO THE TOWN ~ WHEREAS, Kevin Bryant has served the Town of Tiburon for over three years as the Advance Planner, and brought intellige~ce, thoroughness,_ camaraderie and a strong sense of community to his position; WHEREAS, during his tenure, Kevin Bryant attended numerous Town Council, Planning Commission, Bicycle/Pedestrian Advisory Committee, Economic Development Committee and Merit Pay Committee meetings, and has served each of these respective bodies with his professionalism, knowledge and good humor; WHEREAS, Kevin Bryant's primary and initial responsibility was to prepare an update to the Tiburon General Plan, a process that requires significant community involvement and often 0 creates controversy and rancor between different community groups; and WHEREAS, through his leadership, diligence, patience and dedication, Kevin conducted and completed the General Plan with a minimum of controversy, turning it into a community- building rather than dividing process and providing the Town of Tiburon with an excellent General Plan that will serve and guide the community well into the future; WHEREAS, Kevin Bryant has now accepted a position with the City of Sausalito, and will assuredly provide the citizens of our neighbor to the west with the same level of meritorious service that he provided to the citizens of the Town of Tiburon; and WHEREAS, Kevin Bryant will be missed by the Town Council, Town Staff and the community for his cheerful manner, leadership, and unfailing commitment to Team Tiburon. NOW THEREFORE, BE IT RESOLVED, that the Town Council of the Town of Tiburon hereby commends Kevin Bryant for his outstanding public service to the Town of Tiburon, and extends its sincere best wishes for future successes in his life and his career. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon held on October 5,2005, by the following vote: AYES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK RESOLUTION NO. 50-2005 ~ A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON COMMENDING PATRICK ECHOLS FOR HIS DISTINGUISHED SERVICE TO THE TOWN WHEREAS, in 2001, the Town of Tiburon hired Patrick ("Pat") Echols to be its first in- house Director of Public Works/Town Engineer; WHEREAS, Pat has brought credibility, integrity and professionalism to the position and has overseen dozens of public works projects that have improved the quality of life for our residents and visitors, including the new Tiburon Ferry Plaza, the Trestle Glen Bicycle and Pedestrian Pathway, the completion of Stewart Drive Undergrounding of Utilities Assessment District, as well as numerous street and drainage improvements throughout the Town; WHEREAS, Pat's knowledge, leadership, patience and engineering expertise has been 'readily available and much appreciated by the Town's Traffic Safety Committee, Bicycle/ Pedestrian Advisory Committee, Parks and Open Space Commission, and in his capacity as the Town's representative to the Transportation Authority of Marin County; WHEREAS, Pat's ability to seek out and obtain grant funding for various Town projects has gained the Town hundreds ofthousan~s of dollars, and created opportunities to participate in projects that would have otherwise been out of reach; WHEREAS, Pat's spirit of cooperation and ability to forge critical relationships with Town officials and other public agencies has been invaluable to the Town's success; WHEREAS, although Pat is leaving to pursue a life dream, his legacy of accomplishments, spirit, sense of humor and compassion will remain with us; NOW THEREFORE, BE IT RESOLVED, that the Town Council of the Town ofTiburon hereby commends Patrick Echols for his outstanding public service to the Town of Tiburon, and extends its sincere best wishes for future successes in his life and his career. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon held on October 5,2005, by the following vote: AYES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: MILES BERGER, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK . f '"" , . . Town of Tiburon STAFF REPORT AGENDAITEM~ . . . . . . . . . . . . . . . . II .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. TO: Mayor and Members of the Town C.~ Alex D. Mcintyre, Town Manager ~ Authorization to Solicit a Request for Proposals to Retain a Consultant to Conduct an Organizational and Operational Review of the Belvedere-Tiburon Joint Recreation Agency FROM: SUBJECT: . MEE.TINGDATE: October 5, 2005 .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. II. .. The Belvedere City Manager, the Joint Recreation Director and I agree that an independent organizational and operational review of the Belvedere- Tiburon Joint Recreation Agency is appropriate at this time. In an effort to ensure the continued future success of the Agency, the Belvedere City Manager and I have met to discuss the opportunity of jointly retaining an independent consultant to conduct an organizational and operation review of the Agency. The study will take a look at all facets of the Agency including: structure; deployment of resources; customer and community services; operations; policies and procedures; and staffing and workload. As you may recall, a similar effort is currently being undertaken for the Town's Community Development Department. A draft of the Request for Proposal (RFP) for these services is attached for your review. The RFP is scheduled to be circulated to consultants who have performed this type of work at the end of this week with a final report expected to be completed in late February to early March 2006. During the annual Council-Staff Retreat last JanuarY, one goal identified was to develop a plan that will focus on Community recreation assets and opportunities that may eventually lead to the development of a permanent Community Center for the Agency. This is the first step in this process. Further; a result of the Town's General Plan requires that the Town perform a Master Plan of Recreation Services. ' .. TQwn of Tiburon STAFF REPORT Financial Impact Given that the Agency is currently undergoing financial challenges and further recognizing that studies of this type can be costly, the Belvedere City Manager and I agree that jointly funding this study would be prudent. According to the JPA, the Town of Tiburon's share would be 75% of the total cost with the remaining 25% from the City of Belvedere. The overall cost of the project is expected to be $20,000 to $40,000. At the September 26, 2005 Agency meeting, the Director presented this concept to his Committee. The Agency supported the Director's recommendation and instructed the Director to proceed with the organizational and operational review and analysis. Recommendation It is recommended that the Town Council authorize the Town Manager to circulate the RFP to retain a consultant to conduct an organizational and operational review and analysis of the Belvedere- Tiburon Recreation Joint Recreation Committee Agency. Exhibits . 1. Draft Request for Proposal (RFP) for an organizational and operational review and analysis of BT JR . September 29, 20C page 2 of 2 ... , . . . Town of Tiburon REQUEST FOR PROPOSALS Organizational and operational review and analysis of the City of Belvedere and Town of Tiburon's Joint Recreation Agency Issue Date: October 6, 2005 Closin2 Date: November 7, 2005 1. NOTICE OF REQUEST FOR PROPSALS The Town of Tiburon and the City or Belvedere (Cities) are jointly issuing this Request for Proposals (RFP) for consulting services to evaluate the current operations of the Belvedere-Tiburon Joint Recreation Agency (Agency) in the current structure as a Joint Powers Agreement between the two Cities, and to determine if there are' any modifications that can be made to the organization, its structure, and/or its procedures that will improve the operating efficiencies of the Agency and better enable it to perform the breadth of services that are provided to the community's residents. The City Manager of Belvedere and Town Manager of Tiburon may interview respondents to the RFP, may discuss and negotiate any changes to the agreement between the Cities and the consultant, and may receive the final report. The Cities must receive proposals from qualified consultants no later than November 7, - 2005, at 5:00 p.m. Three (3) copies of the proposal should be submitted to: Alex McIntyre, Town Manager Town of Tiburon 1505 Tiburon Blvd. Tiburon,' California 94920 (415) 435-7373 amcintyre@ci.tiburon.ca.us The City of Belvedere and Town of Tiburon, equal opportunity employers, affirmatively ensures that all business enterprises will be afforded full opportunity to submit proposals in response to this notice and will not be discriminated against on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, veteran's status, sexual orientation, age or sex. The Cities reserve the right to reject or negotiate any and all proposals, and to waive any irregularity. In negotiating a final contract, the Cities may make adjustments to the Scope of Work as described herein. Town of Tiburon RFP Page 1 of7 , 2. INSTRUCTIONS FOR SUBMITTING PROPOSALS . 2.1 - RFP Issuance and Deadline for Chanees This RFP will be issued on October 6, 2005, the opening date of the project. Requests for clarifications of the RFP must be submitted no later than October 20, 2005. These requests must be submitted in writing, specifically requesting any interpretation or correction, to Alex McIntyre, Town Manager, by one of the following methods: 1) postal service to 1505 Tiburon Blvd., Tiburon, CA 94920; 2) FAX at (415) 435-2438; or 3) electronic mail (..e-mail..)toamcintyre@ci.tiburon.ca.us. 2.2 - Additional Task and Cost Breakdown Responses to the RFP should include the identification of any additional tasks, activities or research that might be required in conjunction with this project beyond those identified in the Scope of Work. The additional tasks and their costs should be cleaiIy identified and described in the proposal. 2.3 - Deadline for Proposal Submittal Three (3) copies of the written proposal must be received by 5:00 p.m., on November 7, 2005. Proposals submitted after the deadline will not be accepted. 2.4 -Revisions and Supplements The Cities reserve the right to modify, amend, revise or supplement any part of this RFP and is not responsible for any explanation, correction or interpretation of the RFP other than by written addendum delivered to each firm. No oral interpretations, corrections or . explanations of any provision in the RFP shall be binding upon the Agencies. Firms should acknowledge receipt of any addendum. 2.5 - Proposal Format Each consultant's proposal shall include, at a minimum, the following information: · 2. 5.1 - ReQuired Firm Information a. Firm name, address, telephone number, FAX number, and "e-mail" contact address. b. Firm profile. c. List at least four (4) references with addresses and telephone numbers of current or past contracts for which the firm has performed or is performing that represents work of similar type, including scope and complexity. d. List of the firm's principals and emPloyees with resumes of qualifications as well as agents and subcontractors that the firm anticipates assigning in conjunction with this project. Include the expertise of each individual who will be assigned to this project, along with a description of the work they are to perform. · 2.5.2 - Approach/Methods Used to Perform' the Project Detailed description of the services and methods by which the work set forth in the RFP will be performed. The description shall include, at a minimum, the following items: . Town of Tiburon RFP Page 2 of7 J' . . . a. Proposer's understanding of the services to be provided. b. A schedule for the completion of the key components of the project and the project as a whole based on a start date of no later than December 1,2005. It is important to note that the Agencies fiscal year begins on March 1 5t. c. Proposer's expectations as to the roles and responsibilities of the agencies in the project, including specific tasks for the City of Belvedere, Town of Tiburon and Belvedere-Tiburon Joint Recreation Department appointed officials and staff. · 2. 5. 3 - Conflict of Interest A statement which discloses any past, ongoing or potential conflicts of interest which the proposer may have as a result of performing work for this proposal. · 2.5.4 -. Cost of Services The proposed fee to provide the services fequestedalong with a schedule of hourly billing rates for each individual who will be assigned to the project. 2.6 - Review of Proposals , The Cities shall review and evaluate all proposals for completeness and responsiveness to the RFP in order to determine the qualifications, credentials and capabilities of the consultants required for the satisfactory performance of the project. The Cities will consider the experience and past performance of the consultant(s) in offering similar services, as well as cost, response times, and any other criteria deemed by the Town as relevant. Recommendations are scheduled to go before the Town Council for consideration at the November 16, 2005 Town Council Meeting. 2.7 - Terms and Conditions of A2reement The terms and conditions of the agreement include an understanding that the firm shall: a. Provide a copy of the appropriate insurance certificates, other proof of insurance or intent to provide insurance from the issuing company, including a description of types of coverage and dollar amount limits, as well as the AgentslBrokerslUnderwriters certification. Specific Town insurance requirements include comprehensive general liability with a combined single limit of $1,000,000 for each single occurrence and $2,000,000 annual aggregate as well as comprehensive automobile liability with a combined single limit of $1,000,000 for each single occurrence and $2,000,000 annual aggregate. . b. Agree that all work products become the sole property of the Agencies. Town of Tiburon RFP Page 3 of7 , 3. SCOPE OF WORK . 3.1 - Backeround Information 3.1.1 - Community Profile The City of Belvedere and Town of Tiburon are affluent, predominantly built-out communities with a combined population of approximately 11,000. The communities are located on the Tiburon Peninsula in southeastern Marin County and consist of approximately 5.0 square miles ofland area. 3.1.2 - Deoartment Profile The Belvedere- Tiburon Joint Recreation Agency is a Joint Powers Agreement that was established in June 1975 in the aftermath of the adoption of Proposition 13. Thepurpose of the agreement was to create a recreation committee that would formulate, administer and operate recreation programs and facilities for the residents of Belvedere and Tiburon. The Agencies governing committee consist of seven members, three appointed by the City of Belvedere, three appointed by the Town of Tiburon and a seventh member appointed by and being a member of the Reed Union School District. The Reed Union School District includes both Cities. Through the years it has been expressly understood that the purpose of creating a separate public entity was to ensure that recreation services for Tiburon Peninsula residents would be supported by participant fees rather that subsidized by tax dollars. The mission of the Belvedere- Tiburon Recreation Agency is to provide quality recreational and educational programs that inspire and enrich lives of children and adults in the community while maintaining a self-supporting agency. . . The Agency's ability to maintain a self-supporting status can be attributed to the committee's emphasis on providing quality recreation programs while strictly allocating available resources. The Agency's budget supports three part-time staff and one full-time administrator, with hours totaling an equivalent of 3.1 full-time positions. The Committee has been careful not to obligate the agency to high overhead costs that are associated with owning and maintaining facilities, but rather in partnership using other public facilities. The department has a current annual operating budget of $628,800 generated almost exclusively from program fee revenue, which is broken down into Academy programs, Adult programs, Camps programs and Other Program Revenues. The Budget also has a category for Administrative Expenses, which outline the additional operational expenses that are not a ssociated with specific program areas. T he total Administrative expense budgetis $269,455. In addition to the four administrative staff the Agency also employs two full-time program staff, six part-time staff and up to 15 seasomll camp staff. The Agency also utilizes several independent contractors to conduct many specialized recreation programs. . Town of Tiburon RFP Page 4 of7 " . . . This project has been established to 'evaluate the operational. policies and ge]1eral efficiency and effectiveness of the Belvedere- Tiburon Joint Recreation Agency in an effort to better serve .the residents or the Cities. The Tiburon Town Council recently adopted its General Plan which calls for the creation of a Recreation Master Plan. This organizational and operational review of the Belvedere- Tiburon Joint Recreation Agency is seen as the fist step in the larger process of eventually creating a comprehensive Recreation Master Plan. 3.2 - Scope of Services The T own's objective is to conduct an independent analysis 0 fthe Belvedere-Tiburon Joint Recreation Agency with regard to the following: Orf!anization · Structure · Deployment of resources · Customer and community service · Agency operations, policies and procedures · Review of staffing levels · Workload Review and Evaluate: · Current recreation programs and services including analysis of summer camps · Space needs to identify current and future needs for programs, services and administration · Effectiveness of meeting and responding to community needs · Overall financial status · The Joint Powers Agreement · Marketing strategies and materials for recreation programs and services · Interface between the Belvedere-Tiburon Joint Recreation Department staff and the Belvedere- Tiburon Joint Recreation Committee · . Department level policies and procedures · Methods used for evaluating customer/community satisfaction · Similar service providers in the local area The study is intended to look beyond the organizational structure of the Belvedere- Tiburon Joint Recreation Agency in order to study and assess the current Joint Powers agreement between the City of Belvedere and the Town of Tiburon, the Agency work processes, and the overall effectiveness of -the processes employed in supporting the community's needs for recreation services. 3.3 - Essential Elements The Cities believe that, at a mInImUm, the following are considered to be essential elements of an effective review of the Belvedere- Tiburon Joint Recreation Agency: · Review of the organizational goals and design. Town of Tiburon RFP Page 5 of7 '. '. . Review and analysis of the departmental structure, including job designs, staffing levels and overall management systems. . . Analysis of comparable cities in terms of similar performance measurements and assessments, such as staffing levels, service levels, and budgetary resources. . Analysis of operational efficiency of current structure, process and job design, evaluating whether the operational processes and are appropriate considering the organizational needs and demands. · Analysis of the methods used to set priorities and handle the work, including design of the processes and examination of management controls. · A summary of recommendations regarding improvement opportumtIes, increased effectiveness of the operation, modifications to processes or changes in .job design and structure. ; . · A public presentation to review the findings and recap the summary report. · Appropriate reports, information, guidelines, or material in support of this project, its findings, or its intended impact, developed by the consultant and presented as part of the performance review, with sufficient copies for the all three agencies governing bodies and for permanent files for the Agencies. . · Marketing analysis and the appropriateness 0 fthe programs and services currently being offered 3.4 - Staff Participation The consultant may choose the extent of staff participation. 3.5 - Desired Outcome Upon completion of the project, the Agencies expe.ct to have a good understanding of the structure, processes and management practices of its Belvedere- Tiburon Joint Recreation Agency, including recommendations for potential improvements in efficiency, responsiveness, and the quality of services provided to residents. The project should generate an examination of existing structure and process, the creation of new methods and approaches where warranted, and the development of a plan to implement the necessary improvements. 3.6 - Consultant Responsibilitv The consultant will serve as the guide in the review process, ensuring that an objective, appropriate and well-founded evaluation is conducted. The consultant is responsible for ensuring a high quality study t hat accurately reflects the situation, clearly outlines the solutions and opportunities, and develops and recommends potential implementation strategies for consideration. . Town of Tiburon RFP Page 6 of 7 J . . . 3.7 - Review or Modification of Scope of Work The City Manager of Belvedere and Town Manager of Tiburon and the consultant will review the Scope of Work and make any modifications necessary, including any changes required to meet the Agencies requirements. Any other tasks that the consultant believes are necessary to' complete the proj ect must be submitted in writing, including alternative approaches to achieve the Town's objectives. 4. PROPOSED PROJECT SCHEDULE 1. Distribution ofRFP's 2. Deadline for receipt of responses to RFP 3. Town completes review of responses to RFP 4. Council action to award contract for services 5. Consultant commences work on project 6. Final report submitted 7. Briefing with three Governing Bodies Town of Tiburon RFP Page 7 of7 Thursday, October 6, 2005 Monday, November 7,2005 Friday, November 11, 2005 Wednesday, November 16, 2005 Thursday, December 1, 2005 Wednesday, March 1,2006 Date to be determined ') .-: . . . p TOWN OF TIBURON STAFF REpORT ITEM NO. 1- To: MAYOR AND TOWN COUNCIL From: ANN R. DANFORTH, TOWN ATTORNEY Subject: ACCEPTANCE OF MAINTENANCE RESPONSIBILITY MOITOZA LANE AND LAS LOMAS LANES Date: October 5, 2005 BACKGROUND AND ANALYSIS In 1894, the Lyford's Hygeia subdivision reserved various strips of land generally referenced as "streets, avenues, drives, lanes, paths or passageways." During the following decades, the public used portions of the reserved land as pedestrian walkways. Moitoza Lane and Las Lomas Lane are two ofthe most commonly used paths, maintained and improved by the Town as needed. Town staff has been concerned about the preservation of these lanes for some time. At the request of Council Member Fredericks, staff agendized this issue for discussion at a Council/Staff retreat. At that time, the Council directed staffto pursue action that would preserve Moitoza Lane and Las Lomas Lanes from encroachments. This discussion assumed that the Town would have to file quiet title actions to achieve this goal. Staff ordered legal descriptions of the areas actually used by the public, but deferred further action pending resolution of then-ongoing litigation~ Further legal research revealed that quiet title actions were unnecessary~ The public's continuous use ofthe lanes over many years entitles the public to continue using them as a matter oflaw. This use, combined with the Town's maintenance and improvement work, creates a common-law dedication of the lanes. Equally important, the Town has the right to enforce the public's access rights. To document this right, staff recommends that the Council adopts the attached resolution accepting the lanes as public trails. Staff proposes to record this resolution, putting future property owners in the area on notice of the public's rights. The Town's ability to protect these lanes will be further enhanced by the Encroachment Ordinance on tonight's agenda, which requires an encroachment permit for any improvements in a public easement. The Council should note that these lanes are accepted as trails, not as streets. This is to clarify the Town's limited responsibility to maintain the trails. The Council should also note that the Town is generally protected from liability for negligence- claims arising from the use of recreational trails. .: RECOMMENDATION Staff recommends that the Council adopt the draft resolution accepting the Lanes and authorizing the Town Manager to execute any documents necessary to affect its recordation: EXHIBITS Proposed Resolution, with Legal Descriptions ~ . . . . TOWN OF TIBURON Administrative Policy & Procedure' Number: Effective: Authority: Rule 20B Utility Undergrounding District Street Resurfacing Policy PURPOSE: Because of the extensive trenching required as part of a Rule 20B utility undergrounding project, a significant portion of the street must be restored and, depending on the trench restoration requirements and existing street pavement width, may be up to roughly one- third to one-half of the total surface area of the street. This presents an opportunity for the Town to resurface the entire street by contributing the cost difference between patching and fully resurfacing the street, particularly those which are identified by the Pavement Management Program (PMP) for an overlay within 5 years of the undergrounding. . POLICY: . : Town-maintained streets with a Pavement Condition Index (PCI) of 70 or greater will receive a slurry seal fully funded by the Town. For those streets which are identified in the Town's Pavement Management Program for pavement rehabilitation within five (5) years of district ballot approval, the Town will fund the incremental cost between trench patching and a full overlay of the street. Those Town-maintained streets which do not fall into either of the above categories may receive a full overlay if the majority of the property owners agreed to pay fifty (50) percent of the incremental cost. This cost would be applied to the Rule 20B assessment for such properties as a special benefit. For districts approved by ballot prior to the establishment of this policy, the property owners would have the option to contribute fifty (50) percent of the incremental cost on a voluntary basis, provided sufficient total funding is contributed to match the Town's contribution. / APPROVED: Alex D. Mcintyre, Town Manager Date . . . RECORDING REQUESTED By AND WHEN RECORDED RETURN To: Town of Tiburon 1505 Tiburon Boulevard TiQ~ron, CA 94920 Attn: Town Attorney (Space Above This Line for Recorder's Use Only) [Exempt from recording fee per Gov. Code S 27383) RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ACCEPTING MOITOZA AND LAS LOMAS LANES WHEREAS, in 1894 Lyford's Hygeia Subdivision reserved certain areas ofland, portions of which became the locations of pedestrian trails commonly known as Moitoza and Las Lomas Lanes, depicted on the maps attached hereto as Exhibit A and described in Exhibit B attached hereto (the "Trails"). WHEREAS, while the Town has not formally accepted the Trails, but members of the general public have been using portions thereof for decades and the Town has improved and maintained those portions as needed ("Trails"). WHEREAS, the Town has installed a wooden staircase on Moitoza Lane, has paved a portion of Las Lomas Lane and maintains right-of-way signs on both Trails. WHEREAS, through this public use, maintenance and expenditure of public funds on the Trails, the Town has established the public use of the Trails through common law dedication. WHEREAS, the Trails provide vital access to and from certain areas within the Town and serve a vital role as a public right-of-way. WHEREAS, the Town desires to formally accept the Trails for public use and maintenance to ensure that its interests in the Trails appear on record title to the Trails. NOW, THEREFORE, BE IT RESOLVED, BY THE TOWN COUNCIL OF THE TOWN OF TIBURON, as fqllows: 1. The above Recitals are true and correct and are incorporated into this Resolution by reference. 2. The Town hereby formally accepts the Trails as public recreational trails and rights-of-way in their current condition, and not as part of the Town's street system. 857784vl 29]46/0002 3. The Town shall maintain the Trails in their current condition on a schedule and in . the manner established by the Town. 4. Any encroachments into the Trails may be removed by the Town if necessary to ensure public access to the Trails. 5. The Town Engineer is authorized to place signs on the Trails. 6. The Town Clerkis hereby authorized to cause a copy of this Resolution to be recorded in the Official Records of the County of Marin; the Town Manager is q.uthorized to execute any certificates or other documents necessary to affect said recordation. PASSED AND ADOPTED THIS following vote: day of ,2005, by the AYES: NOES: ABSENT: Mayor ATTEST: Town Clerk - 2 - 857784vI29146/0002 . . . . . DESCRIPTION All that certain real property situate in the Town of Tiburon, County of Marin, State of California, described as follows: A. portion of a parcel of land commonly known as "Moitoza Lane" as shown on those certain maps entitled, "Map of Moitoza Lane Subdivision" recorded on July 11, 1985, in Volume 19 of Maps at Page 53, and "Record of Survey, Lands of King, 3669 O.R. 679" recorded on May 20, 1980, in Book 16 of Surveys at Page 63, Marin County Records. Beginning at a point that bears South 32038'21" West 15.24 feet from the common comer of Moitoza Lane, Esperanza Street, and Lot 7 as show on that said map; 1. Thence leaving Esperanza Street South 30006' 15" East 42.22 feet; 2. Thence South 20057'03" East 86.40 feet; 3. Thence South 7205.9'28" East 32.26 feet; 4. Thence South 83017'28" East 92.08 feet; 5. Thence North 66057'00" East 29.25 feet; 6. Thence North 45057'00" East 36.45 feet; 7. Thence North43004' 12" East 63.26 feet; 8. Thence North 44057'20" East 65.65 feet; 9. Thence North 82039'42" East 13.75 feet; 10. Thence North 46011' 13" East 107.08 feet; 11. Thence North 56044'31" East 85.91 feet; 12. Thence North 33037'09" East 8.24 feet to the westerly line ofVistazo West Street; 13. Thence along said westerly line South 45046'00" East 11.18 feet; 14. Thence leaving said line South 65049'07" West 10.91 feet; 15. Thence South 56038'23" West 41.50 feet; 16. Thence South 51007'52" West 38.90 feet; 17. Thence South 46004' 02" West 111.16 feet; 18. Thence South 50053'00" West 5.63 feet; 19. Thence North 26044'07" West 8.76 feet; 20. Thence South 82039'42" West 9.87 feet; 21. Thence South 45010'22" West 32.40 feet; 22. Thence South 40011 '53" West 95.93 feet; 23. Thence South 45057'00" West 38.30 feet; 24. Thence South 66057'00" West 33.76 feet; 25. Thence North 83017'28" West 95.64 feet; 26. Thence North 72059'28" West 38.04 feet; 27. Thence North 20058'24" West 67.78 feet; 28. Thence North 24014'31" West 27.24 feet; \m~UJ~~~ \Th OC\ \} 3 '2.mYJ . r PUBLIC \NORKS O\REc;g~~ Or ilBURON f:;;;;\'LA" p. I t+ 'f 29. Thence North 30006' 15" West 31.15 feet to a point on the easterly line of Esperanza Street; 30. Thence along said easterly line North 32038'21" East 12.21 feet to the point of beginning. . Description prepared by: cf'~ P ~ Lawrence P. Doyle P.L.S.4694 Exp.9/30/05 . . EXHIBIT uA " (J. 'J.. Dt Cf ~ ~ ~ ~~ 't. "Y ~ ~ .,>. ~ ~ """'"", , , , !:::: c: mo;:r:~r::;:::::Oc.oOO'-JOlO1 -j>. 0l I') Z (T\ , ~ (T\ c Z ~ ~ ~ co 0 ~ Ol Ol 0l I') <D 0l CO -j>. ~ G) z 0 ~ ~ :-J ~ ~ ~ Ol ~ !" I') Ol !" ~ ~ fTI (]I ~ ~ I') ~ 0 ~ Ol I') -j>. I') 0 I') -j>. I') I') i q ~ -I>:. ~ en. en. Ol en. en. ~ Ol q "!. -I>:. ... cD f;j :::u (f) (f) (f) Z Z Z Z Z Z Z Z (f) (f) (f) (f) Z cojr:: (]I Ol -j>. 0l (]I -j>. co -j>. -j>. -j>. Ol co -.J I') VJ 0l ro Ol (]I (]I 0l Ol Ol I') -j>. 0l (]I Ol ~ I') 0 0 I') (T\ vj ~ ~ vj ~ vj oi c5 oi oi oi oi c5 vi )> (1l co <D Ol -.J -j>. ~ ~ "! ~ -.J -.J -.J ~ "! ~ ~ 2Q (,ol N 0 0 0 ~" ~ -j>. I') 0 0 I') I') 0 ~ ~ Z ~ ~ q <D C-"!, ~ q "!. q q ~ ~ ~ en. G) ::E ::E (T\ rri rri rri (T\ (T\" rri rri fT1 (T\ (T\ (T\ rri rri , , , , , , , , , , , , , !: !: !:::: c: 0l ~ 0l I') I') I') I') I') I') I') I') ~ I') Z I') 0 <D CO -.J Ol (]I -j>. 0l I') 0 <D CO -.J (T\ , (T\ c ~ Z I') ~ ~ I') Ol VJ <D 0l 0l <D VJ 0l G) z :-J !" -.J :-J ~ ~ ~ ~ ~ !" <D ~ ~ ~ ~ --l fTI CO ~ ~ I') -.J 0 Ol -.J 0l <D -j>. CO -.J Ol <D I i ~ en. -I>:. ~ -I>:. -I>:. Ol q ~ q "! Ol ~ ~ q f;j ZZZZZ ZZ(f) (f) (f) (f) (f) Z (f) (f) (f) -j>.VJVJI')I') -.JCOOl -j>. -j>. -j>. CO I') (]I -j>. ~ro VJl')o-j>.o 1')0l0l (]I g (]I I') Ol 0 Ol . (T\ c5vjc5...loi oi...loi oi ...l vj ~ oi c5 0)> CO CO Ol-j>. CO <D-.J-.J "! ~ q ~ -I>:. ~ -I>:. "!:;u VJ" N ~" vi 1')" N 1')" 0 0 01 I') -j>. 0 0 0 (]I- ~~..q-;~.. ~U1.Q q ~ ~ ~ '!. q ~ I')Z :i. . G) rrirri::E::E:i. :i. :i. ::E" ::E ::E ::E :i. ::E ::E ::E LN b ft ~ -J V .tIHIlOO[ 11 " en ;;:t -u (J)__Nl.11~QQ:~_____ OZV1SIA .----;~ /;;'%/eji,S'fS r '-, ;;I'" I ..... () ~ )> --:i"'\\S l.S~ g 1.3;)OJ- ~ en Z .-----. ... 0) o in 0) (,ol , " ", '~ '-~ / ~r ~o)> <2-fOZ z rr1 oN g )> "'U z :<rr )>)> z-; ITI (f) () )> Ei . II o )> c ~ o ;;0 z ;; \l 0 . )> p ~ OJ " o '-.. X ~ '-.. ~ 0 Ol VI 0, L- (0)> ~~ ~(/)~ 'c - ':;:0 <V < < t?=j )> fTl Z F-< n ~ ~ t?=j '-.... oQ '"t:l )>s" (0' ~ fTl t::l -j>.z 0 I')~~ ,-., fTl t-f o :t fTl t?=j ~ Y':;:O~ <D~0l (f) 0 m (;) OJ ffl ~ 15cr ~! 0'<D ~lD ~ (]I -< CO 0" (]I ." ........ Lawrence P. Doyle Land Surveyor/Civil Engineer P.O. Box 1694 Mill Valley, CA 94942 415-388-9585 JOB NUMBER: 967 TOWN OF TIBURON MOITOZA LANE FROM 37 38 39' 40 BEARING S 30 06 15 E S 20 57 03 E S 72 59 28 E S 83 17 28 E SPN. ID: 5 closure DISTANCE 42.2200 86.4000 32.2600 92.0800 TO 37 38 39 40 41 NORTHING 7987.1666 7950.6415 7869.9536 7860.5169 7849.7597 08-27-200.' 10:55:53 EASTING 7991.7804 8012.9568 8043.8506 8074.6995 8166.1490 41 ---------------------------------------------~-------------------------- 8193.0638 42 N 66 57 00 E N 45 57 00 E 29.2500 36.4500 42 43 7861.2121 7886.5552' 8219.2616 43 N 43 04 12 E 63.2600 44 7932.7679 8262.4613. ------------------------------------------------------------------------ 44 N 44 57 20 E 65.6500 45 7979.2255 8308.8468 45 N 82 39 42 E 13.7500 46 7980.9817 '8322.4842 ----------------------------------------------------------------------~- 8399.7534 46 47 48 49 50 51 52 53 54 55 N 46 11 13 E N 56 44 31 E N 33 37 09 E S 45 46 00 E S 65 49 07 W S 56 38 23 W S 51 07 52 W S 46 04 02 W S 50 53 00 W N 26 44 07 W 107.0800 85.9100 8.2370 11.1800 10.9100 41.5000 38.9000 111.1585 5.6300 8.7600 47 48 49 50 51 52 53 54 55 56 8055.1140 8102.2280 8109.0872 8101.2883 8096.8192 8073.9983 8049:5870 7972.4635 7968.9115 7976.7350 8471.5921 8476.1527 8484.1632 8474.2105 8439.5485 8409.2616 8329.2105 8324.8424 8320.9015 ------------------------------------------------------------------------ . ExHfBR1 'A k p. 4 sf 1 . . . FROM BEARING ------------------------------------------------------------------------- 8311.1124 56 S 82 39 42 W DISTANCE 9.8700 TO 57 NORTHING 7975.4744 page 2 EASTING 57 S 45 10 22 W ------------------------------------------------------------------------ 8288.1331 32.4000 58 7952.6333 ----------------------------------------,-------------------------------- 58 S 40 11 53 W 95.9300 59 7879.3602 8226.2168 59 S 45 57 00 W ----------------------------------------.-----------~-------------------- 8198.6894 38.3000 60 7852.7308 60 S 66 57 00 W ------------------------------------------------------------------------ 8167.6246 61 N 83 17 28 W 62 N 72 59 28 W 33.7600 95.6400 38.0400 61 62 63 7839.5126 7850.6857 7861.8132 8072.6395 8036.2634 63 N 20 58 24 W ------------------------------------------------------------------------ 8012.0027 67.7800 64 7925.1026 -----------------------------------------------------------------'------- 64 N 24 14 31 W 65 N 30 06 15 W 66 N 32 38 21 E AREA OF TRAVERSE 27.2400 31.1468 12.2084 65 66 37 6070.0590 SQ.FT. 7949.9405 7976.8861 7987.1666 8000.8182 7985.1958 7991.7804 .1393 ACRES ..' .. 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'" ~.. / \r---- /' _____ _ J.r- ~~. ----'--- )/ -_____ _ ~ 0' . / ---. /~ ..f>;' / /#~ , 8 )~;y}'~/ ( I z..... ./-.--/ /' ';/ ~. ~.'< ~/ _______ Y -~. /' --"t.;;;c- ---.. . _ ------.. / Y {',,;:;W,>, ,,"- r- /. ~ ~, i ------./ L--~ ~-:::::::;;tt:~':'::~ "- \ ~ / ~-_." \ ( /'. ;. "- '\ ,,, "- \ ~ I .L '" '. \ '. / -" . ::.: '-" \ " "" ~ \<> ~,. ",-,\ ,"- ,'> " . \ "..,... :~ ,," ' '. ,",,-L i rr;;;Oo' a ,. ::..' "" !-t- , ~., '." " . , ~':. ..\~'" ~" ' , ~'", - ...., ~" II \ .\\___ _ --\ I" ~J ~ c; , " ~ .' ~ I \ I " I;' ,i II \ ~. ' '7" t /' ~ ~f- ~. ' 'Ib , - ^-~ \' ./''1'L\ r ~ . -T-~ j ~~91 ,/ ,~' \," I' I I' v 9 ~~ '- ~ 00Q >> 1_.......(~.J:.../ ~~ ~~ ---11 I ~ (, \ t-l ~ ~ l' I I .. ~ . ~' . ~. \ ~~. rJ; @ I I F I I '."". (I l' of. ;i I 1 \ ~ _ ,\ _, t<.\ 10- ~ I' I -..' I;;t ~ I "':~ ~ - ,z -y--~J ~ ~ I I", \" I~ ---- \ \ \ \ I I J . JJ~ J7' " \J cI b10b . ")> <. ~ ~ '" .." ~ .., .. .,. '" .. "-~T-J .. ~ O,?Q" ) ------- . / -- -..... <=;"'&-<"-?;>; ---- ----r ~"'/\ ! ',--- ---- ---- Jr-l ~.. ~~ I i !i 8 ~', j i ~ i g '-!'OI I ------- - r------ - ---i ~ 'I : I I J ~'r ! ~ i J i ~ -----------..--t..... ~ ~......Q....h~(! 6> /' ( I l ~..,."~~S"("'~ h --- --- ___ ___ ___ , '" "- ~ ~ . if " ~. ~ ~' !0 ;:; 'f . . F . 0 r'>Z )>,",G) z ~ ITI fll~Z < (J) IITI C r OJ 0 o -u _ fTl < (Jl (J) o z ;;: ~~~~ ~~t~ \\g~~ ~ l~.~ ~t~{ <\ ')::>..". ~ ~ ;:: : ~~ti ~ ~ ~ i l\ ~.:i ~. \:i'n. ,,::i ~ ~ ~ ~ ! ~.~ ~ ~'~t ~. ~ ~~~ ~ ... ~~ ii>- '< ~ ~. \1" <:) <.. (l () l: - " .;: t- .. " :;- ;;-\ ~ ~ '" " ~ (l ~ I:: ~ ...~ ;:! .., I:: "t ~ ~ " '" <!, \il tl: " <:I ~ l>- ~ " " ~ ~ :;;, (l '" ~ l)i ~. \>, " ~~ .f '" 1\... ~ip :::::::~~ ~ "' 4... - .k.<;) ~.~ ~ "'- "- ~ ~ ~ " == >-, ~. ~ '" ::- . ~ u, . .... \> ~ ~ '-l '-l ~ DESCRIPTION All that certain real property situate in the Town of Tiburon, County of Marin, State of California, described as follows: A portion of land commonly known as "Las Lomas Lane" as shown on that certain map entitled, "Lot Line Adjustment, Record of Survey, Lands of Lukens, As Described in D.N. 94-087632, D.N. 94-087633, & D.N. 94-087634" recorded on August 2, 1995 in Book 33 of Surveys at Page 97, Marin County Records. Beginning at a point on the southerly line of Centro West Street that bears Sou~h 77050'41" West 50.19 feet from the northerly corner as shown upon that said map; '- . 1. Thence leaving said southerly line of Centro West Street South 03055'00" East 20.30 feet; 2. Thence South 53035'00" East 29.66 feet to a point on the easterly line of said Las Lomas Lane; 3. Thence along said easterly line South 26011 '08" West 135.15 feet; 4. Thence South 08020'00" West 63.99 feet; 5. Thence leaving said easterly line North 76023'32" West 6.39 feet; 6. Thence North 09023'00" East 67.68 feet; 7. Thence North 27055'00" East 23.87 feet; 8. Thence North 64055'30" West 4.06 feet; . 9. Thence North 25004'30" East 20.15 feet; 10. Thence South 65021 '00" East 4.91 feet; 11. Thence North 26011 '08" East 82.01 feet; 12. Thence North 31018'00" West 6.24 feet; 13. Thence North 53035'00" West 22.45 feet; 14. Thence North 03055'00" West 17.88 feet to a point on said southerly line of Centro West Street; 15. Thence along said southerly line North 42039'00" East 6.89 feet to the point of beginning. , This description was prepared by: ~ p~ . Lawrence P. Doyle P.L.S.4694 Exp. 9/30/03 ~. U~~H~. tW AUG 2 8 2.003 . . DIRECTOR OF PUBLIC WORKS TOWN OF TIBURON ExHiBIT k H p. I of t./ ~1~1~1~1~1~1~lrlrlrlrlrlrlrlrlrIC m~~~N~O~~~m~~~N~~ /7 to _1 · d "g II ~Immrn: ... ~I~I~I~I~I~I~IPI~I~I~I~I~I~I~IPI~ ; ~~~~No~~O~m~~~m~0~ ~~~~~~~~m~~~~~mo~ I~ ~ rn r- ~ (f)ZZ(f)(f)(f)(f)(f)(f)(f)(f)(f)(f)(f)(f)Z ~~O~~NmNmNO~ON~Orn ~~~~~q~~~~~q~q~~~ ~~~~~~NO~~NNN~~~> O~~~~~~~~~~~O~~~~ ~OOOO~O~~OO~OOOOZ ~qqqq :qqqqq~q~qq0 ::E1T1::E~~::E~::E~::E::E~::E::EIT1::E " 133lU.S iJ C Ul . ,. 0 9 r.t ~ lD ~~. ~ ~II ~ "(JJ 0) 8 q :::l or OJ co> c Z t""' :ll o > ~ ~ (f) :::!l Fc~ r- ~t;I:j )> ~;;;j ~ ~U)r ~d ('") ~r-> -<~t;I:j 20Z '-... 83::1'T1 (')0 _ c...... >;;.v Z--'1J cor ~U)r ti ~ t::l r )> ~Z 0 Z>-1 1\,)0.J z..... om ..-.. ~ t'"l )> C ~~ t;I:j ~ ~(J1^' 0 ;E I :ll zc.l ~ CO"'CXl )> O)zCXl CXlPI co (J1 CXl (J1 '-" Lawrence P. Doyle Land Surveyor/Civil Engineer P.O. Box 1694 Mill Valley, CA 94942 415-388-9585 JOB NUMBER: 968 TOWN OF TIBURON LAS LOMAS LANE FROM 25 26 27 21 29 30 BEARING S 03 55 00 E S 53 35 00 E S 26 11 08 W S 08 20 00 W N 76 23 32 W N 09 23 00 E SPN. ID: 5 closure DISTANCE 20.3000 29.6559 135.1456 63.9900 6.3900 67.6800 TO 25 26 27 21 29 . 30 31 NORTHING 5989.4319 5969.1793 5951.5740 5830.2984 5766.9841 5768.4875 5835.2619 ~ "" 08-27-200. 17:54:40 EASTING 5950.9352 5952.3218 5976.1866 5916.5496 5907.2754 5901.0648 5912.0993 31 N 27 55 00 E 23.8700 32 5856.3541 5923.2749. ---------------------------------------~-------------------------------- 32 N 64 55 30 W 4.0600 33 5858.0748 5919.5975 33 34 35 36 37 38 39 40 N 25 04 30 E S 65 21 00 E N 26 11 08 E N 31 18 00 W N 53 35 00 W N 03. 55 00 W N 42 39 00 E S 58 01 36 E AREA OF TRAVERSE 20.1500 4.9100 82.0100 6.2400 22.4500 17.8800 6.8900 .0084 34 35 36 37 38 39 40 25 1401. 0297 SQ. FT. 5876.3257 5874.2779 5947.8711 5953.2030 5966.5305 5984.3687 5989.4364 5989.4319 5928.1372 5932.5997 5968.7891 5965.5473 5947.4813 5946.2600 5950.9281 5950.9352 ) .0322 ACRES . 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"-'\ '" ~~c, I"'\'Z ~ ~'€Iii/. \~ /1", 'A~~ ~~'l( I \ ~~ ~?l ~~2'lo. ~~ i~ 'il ~; ~, T! i! ~"\ U1F ~i!! · ~ ~ iH ~~11 t:s ~~;: ~ ~1= g ~ i2'b E' ~ C tj ...., " l~ !a~ If, i!l~ Iii .' ..Ii: t?, sl . ;" ---(; '-.l VI C '" < "< o '" vi VI ;;! --< ,., ;:: ,., z -; .J >E ~ ~ '" ~ ~ VI ~ .!; ~ "~ ~ ~ "i'~ ~ '! i! % ~ rT1 ~ ~~H ~h~ ~I~ i : _ ~ 0 ~ ~;a () o c z ::! (J1 ~ o ::0 vi (J1 E '" '" '" z --< :\.: : \;~ ~ ~~ ~U ::I. ~~ ~ ~ ~! < ~ ~ ~ ::0 ,., () o '" '" ,., '" vi ~ ~ '" ;:: '" z -; ~ ~ II ~ s g " c~ R \ g" il!~ i ~..... N ~ :; a ... QJ~ .!; - <:> o < ..... 0: 0 :I: ~ <D o ./> ~-a (J) ~ b ~Pl- ~::J ~ CI fTl co (1) ~ ~>.....CVl>;:t... ~~~ i25!'JU1~ .e.~C'Jl/')O z (.00 ~ <0 ~ c.~ ~ ~ .po. fTl ti') ~ ~ (j)~ ~ I ~ ,~(IJ-< )>0:::0 0 ~~ :r 2Q~rn ~ o~*IV)zO')rr1 -g ~ca()LMO~ .-' ....r;:j 0 ~- ~ 'H..."C!':'Z.... "0 CD Z o:::::i <0 :J fTl -f (0' I,,-J to.~.-<tZ~ ::S(j) ~ 0 0 CIJ c: ~:> 00 < r '-J tt> =ii ()') '< 0'" o ;u ./> iil Z J; 9 ~Ia X~~.~ ~~ j .. ;;: .. ~ .;. ~ "~~~E h f~f, ,01 ~ ~ '" ~ ~ .... I jJ: " '" .. " ~ V> :!: a o .., Q ~ :Jt -J -.J G; "\.- . , . . . " f Town ofTiburon STAFF.....REP.ORT TO: Honorable Mayor and Town Councilmembers FROM: Heidi Bigall, Director of Administrative Services SUBJECT: Risk Management Program and Policy J((;i\ . October 5, 2005 REVIEWED BY:~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MEETING DATE: The Town of Tiburon has a legal and moral duty to its citizens, employees and the assets of the Town to ensure that the Town does not suffer catastrophic losses of financial or real property resources of the Town. In order to meet this duty, the Town of Tiburon provides risk management programs\vhich insure the Town's resources. The Town's risk management program includes general liability, workers' compensation, property and employee crimes/errors and omissions insurance. The Town's risk management program budget is administered by the Administrative Services Department with costs allocated out to the various departments based on corresponding demographics. Currently, the Town's risk management program costs $159,000 per year, or 2.5% of the Operating Budget. Risk Management tends to be a silent function of the Administrative Services Department and probably one of the least discussed and understood by members of staff and Council. Staff believes it is appropriate to educate staff, the public and Council on the various insurance programs in which the Town participates, along with adopting a formal policy and resolution outlining the Town's Risk Management goals and responsibilities. The success of any risk management program begins with educating all levels of staff in how to identify and report any potential risk exposure. The Town of Tiburon and its employees take a pro-active role in risk management through training, identifying policies that reduce the Town's exposure and safety management meetings. Below describes the Town's Workers' Compensation and General Liability insurance programs, along with deductibles, limits and annual costs. Workers' Compensation Insurance All employers are required to provide workers' compensation insurance for their employees. The benefit structure defines what injured workers are entitled to receive when they sustain an injury in the course of their employment. " l'own.(jfTiburon There are six basic types of workers' compensation benefits depending on the nature, date and severity of the worker's injury: 1. medical care; 2. temporary disability benefits; 3. permanent disability benefits; 4. vocational rehabilitation services (injuries sustained before July 1, 2004); 5. supplemental job displacements benefits; and 6. death benefits. ' The Town of Tiburon participates in the Bay Cities Joint Powers Insurance Authority (BCJPIA) for its Workers' Compensation programs. BCJPIA provides the Town's workers' compensation insurance based on actual exposure and past claims experience. The Director of Administrative Services serves as the Town's representative to the BCJPIA Board. The Town has been fortunate to enjoy a relatively low workers' compensation claims experience, which has allowed the Town's insurance premium to actually drop over the past several years. The Town's workers' compensation premium for fiscal year 2005-06 is $63,500. The Town's deductible $150,000 per claim occurrence and the Town is insured up to $1,500,000 per occurrence. . General Liabilitv The Town of Tiburon participates in the ABAG PLAN Corporation for pooled liability insurance. General Liability provides comprehensive general and auto liability coverage for bodily injury, property damage, personal injury and public official's errors & omissions. It is important to note that there are several exemptions from coverage under the Town's general liability insurance and the Town must bear all costs associated with such litigation (e.g., land use decisions, employment practices, etc.). Attached as an exhibit is the Memorandum of Coverage for General Liability, Property, and Commercial Crime. The ABAG Plan is a self-insurance pool which provides low administrative costs, interest on reserves, broad coverage terms and equity accumulated through better than-average loss results. The Town has been a member of the ABAG Plan for over 20 years. The Town Manager serves on the ABAG Plan Board of Directors. The Towns deductible is $50,000 per occurrence with a limit in coverage of Five Million Dollars ($5,000,000) per occurrence, with the exception of Employee Benefit Plan Administration Liability, in which the limit of coverage is Two Hundred Fifty Thousand Dollars ($250,000) per occurrence. To the best of Staff's knowledge, the Town's deductible has been $50,000 since inception and can be modified annually. As with all insurances, the greater the annual deductible, the lesser the annual premium. In FY 2b05-06, the cost of Liability insurance is $90,873. . September 30, 2005 page 2 of 3 ,. . . . . ':,,-,. .':..':" .., .,." :'."'''.. -:. :..' ,:~ Towtl> of Tiburon.... STAFF REPORT Risk Manaaement Policy As stated above, a successful risk management program beings with educating employees on how to reduce the Town exposure to potential claims which reduces the Town's physical and financial losses as well as hHman suffering. To that end, the Town's general liability insurance provider (ABAG PLAN) has urged participating members to adopt a Risk Management Policy (Exhibit 2) and Resolution (Exhibit 3) which outlines the Town's risk management goals, responsibilities, accident investigation and hazard identification program, along with formally establishing a personnel safety and risk management committee. A draft policy is attached to this staff report for the Council's consideration and adoption. Though the adoption of a Risk Management Policy is the recommendation of the Town's general liability insurance provider, the policy also encompasses the Town's worker's compensation' insurance program. In addition, when the Town meets ABAG PLAN's best practices guidelines the Town will become eligible for certain grant funding through the liability insurance program. Marcus Beverly, ABAG PLAN Risk Manager will be present for this item and address the Council arid public directly on the Town's general liability insurance program and the benefits of adopting a Risk Management Policy. Recommendation It is recommended that the Town Council: 1. Receive a brief oral presentation by Marcus Beverley, Risk Manager of ABAG Plan Corporation, on the Town's General Liability Insurance Program and Risk Management Policy; 2. Adopt the exhibit Risk Management Policy Resolution; and 3. Adopt the exhibit Risk Management Policy . Exhibits 1. General Liability Insurance Policy Rates. and Deductibles 2. Draft Risk Management Policy 3. Resolution adopting a Risk Management Program September 30, 2005 page 3 of 3 ... . ~ :E ~ :l oE = ~ ~ ~ = ~ - ~ -0 o o ri: -0 ~ ti ~ S "'-a;: :f5 50 8- '- ..c '" ~~.s '" ~. c "i: OJ):.a - =.t: < :a :: r,;~] :: x I:l:S ..",- ~ ~ ~ 0-0 "1:1 _ '" .. - ~ ~ ~ ... :: "m ~ - ;>. U U..cx .. 0. '" c: 0': iii: Co-' -< !Xl -< . . o - .. e .;: U c- .. .5 ..c '" ~ :; o(l .. ~ '0 Cl:i -1 o z t: E9 ~ '" ><; UI Q) 0> co Q; > o t) - o .c a. m C5 c: co a:: t9 < l:D < t9 < l:D ~ '" '6 c "" C .~ u a; ro .c ~ t9 '} . . . " EXHIBIT NO._~ - TOWN OF TIBURON Administrative Policy & Procedure Number: Effective: Authority: Town Council PURPOSE: loss to others whenever possible and practical claims management techniques to losses that do occur n budget from catastrophic losses, or an annual accumulation of Id cause financial hardship Risk Manaaement Responsibilities Town Council: The Town Council shall support the risk management effort through setting policy in accordance with its Resolution No. Town Manager: The Town Manger shall have overall responsibility for the risk management program and for assigning responsibilities to the Town staff. He/she shall be responsible for the Town's disaster preparedness program. He/she shall serve as the Town's alternate Risk Management Policy Page 1 , He/she shall serve as the Town's alternate member on the boards of insurance JPAs to . which the Town belongs and/or as an alternative liaison to the Town's insurance brokers, carriers, and claims administrators. Risk Manager: The Risk Manager shall have responsibility for the day-to-day administration of the Town's risk coverage, claims processing, and safety training program (non-sworn personnel). The Risk Manger shall serve as: board member of insurance JPA's to which the Town belongs; liaison to the Town's insurance brokers, carriers, and claims administrators; and chairman of the combined Personnel Safety Committe nd Risk Management Committee. The Risk Manager shall serve as an ad vi so "Town Manager and Town Council on risk-related matters. Police Chief: The Police Chief shall have resp the Police Department's risk management pro personnel and non-sworn personnel of the serve on the combined Personnel Safet~ day-to-day administration of . ing program for sworn hief of Police shall ent Committee. . . ping the Town's Illness and Injury Prevention g policy recommendations regarding the ; decisions are made by majority vote of those one vote. The Committee' organization and duties, rsare concerns, are prescribed in the Town's IIPP. risk.+, nagement, the Committee shall serve as a non-voting, Risk Manager. . i all review all incident reports. be held at least quarterly, and minutes prepared of the proceedings. Accident InvestiQation & Claims Processina · Work-related injuries and illnesses shall be investigated as prescribed in the Town's IIPP. · Vehicle collisions, citizen injuries, property and equipment damage or theft/vandalism shall be investigated by the Police Department with the full cooperation and . Risk Management Policy Page 2 . . . cooperation and assistance of other departments; as needed. · The Risk Manager shall review all draft incident reports and claims, sign off on them, and submit them to the appropriate Claims investigator within 24 hours. Department heads and supervisors shall review all accident reports, incident reports, and claims affecting their departments and provide timely information to the Risk Manager for forwarding to the appropriate claims investigator. The Risk Manager shall keep the Town Manager apprised of all incidents and claims. · The Risk Manager shall be responsible for all and OSHA reporting. Hazard IdentificationProaram · Hazards in the workplace are covE;) · All Town employees who work in the fiel hazards to the head of the Town's compact size and Ii which hazards can immedia . head and corrected in a time- e Director of Public Works and Assistant Director \ablished and proven safety programs of the ming program and the sidewalk repair program. Ins <IV hd Settlement Authorit Gene excess. c resources. cover the sel - own shall maintain a self-insured retention limit, with primary and purchased in appropriate amounts with the Town's financial shall maintain a reserve account as a Restricted General Fund to d liability. Property: The Town shall maintain insurance sufficient to cover the replacement cost of its real and personal property, with appropriate deductibles. Emplovee Crime/Errors and Omissions: The Town shall maintain coverage for employee crime/errors and omissions with appropriate deductibles. Risk Management Policy Page 3 r Worker's Compensation: The Town shall maintain an appropriate insured retention plan . for workers' compensation. The town shall maintain a self-insured retention limit, with primary and excess coverage being purchased in appropriate amounts consistent with the Town's financial resources. The Town shall maintain an appropriate reserve to cover the self-insured liability. Fundinq Sources: All insurance premiums shall be paid out of the General Fund as a regular line item under Operations in each Department's budget and costs allocated based upon the appropriate demographic cost. The To shall use outside professional claims management for all of its insurance claims. Settlement authority: The Town Council has . general liability and workers' compensatio Manger first obtains the concurrence of concurrence of the Vice-Mayor. The4l1i any general liability or workers' compens Town Manager. Contractual Liabilitv · The Director determini of insur: rney shall be responsible for nts for ntractors and for monitoring certificates or all Town public works projects. . nsible for determining indemnity requirements for facilities and the Town Clerk shall monitor and endorsement from facility users. ey, i + onsultation with the Risk Manager and the program he Town's liability insurance provider, shall be responsible for mnity requirements for Town contractors, facility users, and scribed above. The Risk manager shall be responsible for rtificates of insurance and endorsements required from such entities. Emplovment Issues The following issues shall be addressed as prescribed in the Town's Personnel Rules and Regulations and/or the IIPP: Pre-placement screening; first aid certifications; background checks (motor vehicle and criminal); employee ind,emnification; employee activities; employee benefit coordination and plan document responsibilities. Risk Management Policy Page 4 . o I . Risk Manaaement Policv Review The Town Manager shall cause this policy to be reviewed every three years and a report to be prepared covering the effectiveness of the policy and any recommendations for amendment. Alex D. Mcintyre, Town Manager Date . . Risk Management Policy Page 5 EXHIBIT No.3 RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN P"-=t~URON ADOPTING A RISK M ,EMENT PROGRAM WHEREAS, the Town OfTi~'S membership in the ABAG PLAN risk sharing pool requires the Town Council's commitment to adopt a risk management policy, and WHEREAS, the Town of Tiburon is committed to the protection and conservation of persons and property from injury or destruction, and WHEREAS, the systematic identification and control ofullllecessary risks, undertaking, or hazardous conditions minimizes the Town's physical and tinanciallosses as well as human suffering, and WHEREAS, risk management is a concept designed to protect and conserve municipal assets and to foster a safe work and Town environment for its employees and citizenry, and WHEREAS, risk management serves to avoid unforeseen and catastrophic losses as well as minimize the cost fluctuations of insured and self-insured programs, NOW, THEREFORE, BE IT REOSL VED that the Town of Tiburon supports the risk management programs and activities pursued by the Town Manager and provided by the ABAG PLAN Corporation. Further, such risk management activities are considered an integral part ofthe Town's overall management system. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on October 5, 2005, by the following vote: AYES: NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: MILES BERGER, MAYOR Town of Tiburon ATTEST: DIANE CRANE-lACOPI, Town Clerk , . . . ~. .... , . . . ~;,;.~' Town of Tiburon STAFF REPORT AGENDA ITEM l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: FROM: SUBJECT: MEETING DATE: . . . . . . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND To implement the Disaster Mitigation Act of 2000 (DMA 2000), the Federal Emergency Management Agency (FEMA) has required that in order to remain eligible to receive federal funding for both pre-disaster and post-disaster mitigation funding, a local government must have a FEMA approved Local Hazard Mitigation Plan (LHMP). The Association of Bay Area Governments (ABAG) received a grant from FEMA to prepare a multi-jurisdictional plan that fulfills the requirements of DMA 2000. On March 17,2005, the ABAG Executive Board adopted Taming Natural Disasters, a multi-jurisdictional local government hazard mitigation plan for the San Francisco Bay Area. Individual cities and counties can adopt or use all or part of the of ABAG's multi-jurisdictional plan in lieu of preparing all or part of a Local Hazard Mitigation Plan. . Town Staff has participa~ed in the development of the multi-jurisdictional LHMP by attending various ABAG workshops and meetings as well as providing written and oral comments on the multi-jurisdictional plan. Town Staff has also provided ABAG with information on facilities that are viewed as "critical". ANAL YSIS Taming Natural Disasters, ABAG's multi-jurisdictional Local Government Hazard Mitigation Plan . (see Exhibit 2), identifies several dozen disaster mitigation strategies with the goal of reducing the impact of disasters on infrastructure, health care, housing, the economy, government services, education, the environment, and land use. These strategies were reviewed and priorities for Tiburon were identified by a committee made up of the Police Chief, Director of Public Works, Building Official, and the Advance Planner. Exhibit 3 is the Town's mitigation strategy prioritization. A key feature of ABAG's effort to develop a multi-jurisdictional Local Hazard Mitigation Plan was to provide a template and information to use in the development of ann,exes to the multi- jurisdictional plan. The Town of Tiburon LHMP Annex (Exhibit 4) describes the Town's planning process, hazard and risk assessment, mitigation activities and priorities, and the plan maintenance and update process. FEMA has reviewed the Town of Tiburon LHMP Annex and has "pre-approved" the Town's LHMP Annex, pending adoption by the Town Council. STAFF REPORT ., .. Town of Tiburon . . . . . . . . . . . . . . . . . . . . . . . . . . As of September 29, thirty-one local governments around the Bay Area, ranging from San Francisco to San Anselmo and Orinda, have adopted LHMP Annexes similar to the Town of Tiburon LHMP Annex. Elioibilitv for Hazard Mitioation Grants. Adoption of Taming Natural Disasters and the Town of Tiburon LHMP Annex will make the Town eligible for pre-disaster mitigation grants1 to reduce vulnerability to disasters and will preserve the Town's eligibility for post-disaster mitigation funding. RECOMMENDATION It is recommended that the Town Council review' Taming Natural Disasters, the ABAG Multi- Jurisdictional Local Government Hazard Mitigation Plan, the Town's mitigation strategies prioritization, and the Town of Tiburon LHMP Annex; receive any public comment; and adopt the resolution adopting the Association of Bay Area Government's report Taming Natural Disasters, adapted by the Town of Tiburon LHMP Annex, as the Town's Local Hazard Mitigation Plan. EXHIBITS 1. Draft Resolution 2. Taming Natural Disasters, Multi-Jurisdictional Local Government Hazard Mitigation Plan for the San Francisco Bay Area, ABAG, March 17, 2005 3. Mitigation Strategies Prioritization 4. Town of Tiburon LHMP Annex . 1 The Town has submitted a Notice of Intent to the State Office of Emergency Services stating that we will apply for a grant to clear fire roads in Town open space to improve accessibility for fire trucks. An approved LHMP is required for this grant application to be considered. . October 5, 2005 page 2 of 2 .' . . . RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE .TOWN OF TIBURON ADOPTING THE ASSOCIATION OF BAY AREA GOVERNMENT'S REPORT TAMING NA TURAL DISASTERS AS THE TOWN OF TIBURON'S LOCAL HAZARD MITIGATION PLAN WHEREAS, Tiburon and the Bay Area are subject to various earthquake-related hazards such as ground shaking, liquefaction, landsliding, fault surface rupture, and tsunamis; and WHEREAS, Tiburon and the Bay Area are subjectto various weather-related hazards including wildfires, floods, and landslides; and WHEREAS, the Town of Tiburon recognizes that disasters do not recognize jurisdictional boundaries; and ' WHEREAS, the Town of Tiburon seeks to maintain and enhance both a disaster- resistant Town and region by reducing the potential loss of life, property damage, and environmental degradation from natural disasters, while accelerating recovery from those disasters; and WHEREAS, the Town of Tiburon is committed to increasing the disaster resistance of the infrastructure, health, housing, economy, government services, education, environment, and land use systems in the Town of Tiburon, as well as the Bay Area as a whole; and WHEREAS, the federal Disaster Mitigation Act of 2000 requires all cities, towns, counties, and special districts to have adopted a Local Hazard Mitigation Plan to receive disaster mitigationfunding from the Federal Emergency Management Agency; and WHEREAS, the Association of Bay Area Governments (ABAG) has approved and adopted the ABAG report Taming Natural Disasters as the multi-jurisdictional Local Hazard Mitigation Plan for the San Francisco Bay Area. NOW, THEREFORE, BE IT RESOLVED, that the Town Council adopts, and adapts with its local annex, this multi-jurisdictional plan as its Local Hazard Mitigation Plan; and BE IT FURTHER RESOLVED that the Town of Tiburon commits to continuing to take those actions and initiating further actions, as appropriate, as identified in the Town of Tiburon Annex of the ABAG Local Hazard Mitigation Plan. EXHIBIT NO. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town . of Tiburon on October 5, 2005, by the following vote: . AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERSJ ATTEST: DIANE CRANE IACOPI, TOWN CLERK MILES BERGER, MAYOR TOWN OF TIBURON . . E .ON ~Ia:IHX~ . - ~ ~ ., D) tn .... ., c (") .... c ., CD Ie D) ~ o ~ en .... DJ .... CD (Q -. CD tn . (j) "C co ~ C'i' $: ..... <0' ~ o' ::l Y2 .... III ..... 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S' S' S' S' <C co <C <C J:t:l o~~ o ...... ::l ~5=o ::I 0 ~ ..... 0 ::l ~ -:or ::IG)5l mCDt:: 10::1(3 3 ~ ::l CD~t:l ::I ..,.., CD .....~C1l Ol <0' ::I ::l N o ::I S' <C '"'00 -.... Ol a. ::I _. ::I "'0 Ol o ::I =() Q. CD CD -. (fJ G) CD ::I CD .... "~ z 3 0 ~3 CD Ol ::!'c' Ol .... oo::r -. Ol ::I N -i0l o a ~ 0 ::I c: en . ., " . . . LHMP ANNEX Town of Tiburon Introduction The Town of Tiburon is a small town located in southeastern Marin County, California. The Towri has a population of 8,666 people, based on the 2000 censusl. In Fiscal Year 2004/05, the Town's operating budget was $6.7 million. The Town has 42.65 Fulltime Equivalent (FTE) employees. While the Town provides local police services, the fire services are supplied by separate fire districts, The Planning Process The Town of Tiburon has developed this plan at the same time as it has conducted an update of its General Plan, including the Safety Element. As part of the General Plan Update process, the Town completed a Public Participation Program in 2002 which featured three workshops and a survey sent to all mailing addresses within Tiburon. Additionally, the Safety Element of the General Plan was the subject of a white paper and community discussion, held in August and September 2004, about hazard issues that are relevantto Tiburon's Planning Area. Through the General Plan Update process, the community has expressed support for continuing to guide development away from hazardous areas to the extent feasible, ensuring safe subdivision and building design, and encouraging disaster preparedness planning. In addition, the Town routinely enforces the California Environmental Quality Act (CEQA) requirements (which, since 1988, have required mitigation for identified natural hazards), The Town's effort has focused on building on these pre-existing programs and identifying gaps that may lead to disaster vulnerabilities in order to work on ways to address these risks through mitigation. Many of the activities conducted by the Town were fed into theplanhing process for the multi- jurisdictional plan. The Town participated in various ABAG workshops, and meetings, including the "kick-off' meeting. In addition, the Town has provided written and oral comments on the multi-jurisdictional plan. Finally, the Town provided information on facilities that are viewed as "critical" to ABAG. " Key Town Staff has met to identify and prioritize mitigation strategies appropriate for the Town. Staff involved in this process included the Police Chief, Public Works Director, Building Official, and Advance Planner. The general priorities and approprIate Town departments were identified, as well as preliminary budgets and potential funding sources for strategies designated as "High" priority. The resolution adopting the plan and strategies was adopted by the City Council on October 5, 2005. 1 For complete Census information on this Town, see http://www.bavareacensus.c~.20v/, Town of Tiburon - Annex 1 October 5, 2005 EXHIBIT NO. if ~. "4' Hazard and Risk Assessment . The ABAG multi-jurisdictional Local Hazard Mitigation Plan, to which this is an Annex, lists nine hazards that impact the Bay Area, five related to earthquakes (faulting, shaking, earthquake- induced landslides, liquefaction, and tsunamis) and four related to weather (flooding, landslides, wildfires, and drought). These hazards also impact this community, except for surface faulting. Surface faulting is not a hazard in the Town of Tiburon because no active faults are located in the Thwn. ' While the Town has undertaken a number of general hazard mapping activities as part of the General Plan Update, all of these maps are less detailed and are not as current as those shown on the ABAG website at: httu://ouake.aba!!.ca.!!ov/mitil!ation/. Information on disasters declared in Marin County is at httu://ouake.abal!.ca.l!ov/miti!!ation/disaster- historv.htm!. The Town examined the hazard exposure of Town land based on the information on ABAG's web site at httll://Quake.abal!.ca.l!ov/mitil!ation/llickdbh2.html. Ofthe approximately 2,800 acres which make up the Town, , . Earthquake faulting - No active faults run within the Town so rupture ofa fault is not a direct concern. . Earthquake shaking - 90 acres are in the highest two categories of shaking potential. . Earthquake-induced landslides - While earthquake-induced landslides may be a hazard in the Town of Tiburon, the California Geological Survey has not completed mapping of this hazard in the Town of Tiburon. . Earthquake liquefaction - 275 acres are in areas of moderate, high, or very high liquefaction susceptibility, . Tsunamis - While tsunamis may be a hazard in the Town of Tiburon, the mapping of inundation areas has not been completed at this time, .. Flooding - 130 acres are in the 100-year flood plain, while an additional 45 acres are in other flood-prone areas; . Landslides - 475 acres are in areas of existing landslides; . Wildfires - 200 acres are "subject to high wildfire threat, and 1,750 acres are in wildland-urban interface threat areas. . Dam Inundation - There are no dams or dam inundation areas within the Town. . Drought ~ The entire Town is subject to drought. . The Town also examined the hazard exposure of infrastructure based on the information on ABAG's website at httll://Quakc.abal!.ca.l!ov/mitil!ation/uickdbh2.html. The ABAG maps show as roads many trails or are roads maintained by other entities. For example, the entire road and trail system of Angel Island State Park is included in ABAG's totals. Based on mapping completed for the General Plan Update, Town Staff determined the following: Of the approximately 30 miles of Town maintained roadway in the Town, . Town of Tiburon - Annex 2 " October 5, 2005 ./ . . . . Earthquake faulting -No active faults run within the Town so rupture of a fault is not a direct concern. . Earthquake shaking - Four miles of roadway are in the highest two categories of shaking potential. . Earthquake-induced landslides - While earthquake-induced landslides may be a hazard in the Town of Tiburon, the California Geological Survey has not completed mapping ofthis hazard in the Town of Tiburon. . Earthquake liquefaction - Eight miles of roadway are in areas of moderate, high, or very high liquefaction susceptibility. . Tsunamis - While tsunamis may be a hazard in the Town of Tiburon, the mapping of inundation areas has not been completed at this time, . Flooding - Two miles of roadway are in the 1 DO-year flood plain, while an additional two miles is in other flood-prone areas; . Landslides - Six miles of roadway are in areas of existing landslides; . Wildfires - Three miles of roadway are subject to high, very high, or extreme wildfire threat, and 20 miles of roads are in wildland-urban interface threat areas, . Dam inundation - There are no dams or dam inundation areas within the Town. . . Drought - is not a hazard for roadways. Finally, the Town examined the hazard exposure of critical health care facilities, schools, and Town-owned buildings based on the information on ABAG'swebsite at . http://Quake.abal!.ca.l!ov/rnitil!ation/pickcrit.htrnl. Ofthe critical facilities in the Town, . Earthquake faulting - No active faults run within the Town so rupture of a fault is not a direct concern. . Earthquake shaking - one Town-owned critical facility and one special district critical facility are in the highest two categories of shaking potential. . Earthquake-induced landslides - While earthquake-induced landslides may be a hazard in the ToWn of Tiburon, the California Geological Survey has not completed mapping bfthis hazard in the Town of Tiburon. . Earthquake liquefaction - one school and two Town-owned critical facilities in areas of moderate, high, or very high liquefaction susceptibility. . Tsunamis - While tsunamis maybe,a hazard in the Town of Tiburon, the mapping of inundation areas has not been completed at this time. . Flooding - no critical health care facilities, schools, or Town-owned critical facilities are in the 1 DO-year flood plain; and one elementary school and one Town-owned critical facility is in other flood-prone areas. . Landslides - one special district critical facility is in areas of existing landslides; . Wildfires - one long-term care facility, three schools, two Town-owned and two special districts critical facilities are in wildland-urban interface threat areas, . Dam Inundation - There are no dams or dam inundation areas within the Town. . Drought - Drought will not affect Town buildings directly. However, the Town does not operate a water-supply distribution system. Town of Tiburon - Annex "3 October 5, 2005 ~ There are three repetitive loss properties in the Town based on the information at http://Quake.aba2.ca.!!ov/miti2ation/pickflood.htmI. Repetitive loss properties are those that have had more than one insured flood loss. . " " The Town plans to work with ABAG during 2005 to improve the risk assessment information being compiled by ABAG by providing information on unreinforced masonry buildings and soft- story apartments located in the Town, Drought, though a potential problem in the Town, is not fully assessed. The Town will work with ABAG and the Marin Municipal Water District on this issue. The Town plans to work with ABAG to develop specific information about the kind and level of damage to buildings, infrastructure, and critical facilities which might result from any of the hazards previously noted. The ABAG Annex states that ABAG will be doing this work in 2005 through early 2006. As these impacts are not fully developed, the Town has reviewed the hazards identified and ranked the hazards based on past disasters and expected future impacts. The conclusion is that wildfires and wildland-urban interface fires, landslides (including unstable earth), earthquakes, and flooding pose a significant risk for potential loss. Mitigation Activities and Priorities . As a participant in the ABAG multi-jurisdictional planning process, Town of Tiburon Staff helped in the development and review of the comprehensive list of mitigation strategies in the overall multi.;.jurisdictional plan, The list was discussed at a meeting of the Police Chief, Public Works Director, Building Official, and Advance Planner on March 1,2005. At the meeting, all of the mitigation strategies in the ABAG multi-jurisdictional plan were reviewed. The tentative decision on priority was made based on a variety of criteria, not simply on an economic cost- benefit analysis. These criteria include being technically and administratively feasible, politically acceptable, socially appropriate, legal, economically sound, and not harmful to the environment or our heritage. These priorities were provided to the City Council on October 5, 2005. " Over time, we are committed to developing better hazard and risk information to use in making those trade-offs. Weare not trying to create a disaster-proof region, but a disaster-resistant one, In addition, several of the strategies are existing Towil programs. The Plan Maintenance and Update Process The Town Manager's Office will ensure that monitoring of this Annex will occur. The plan will be monitored on an on-going basis, However, the major disasters affecting our community, legal changes, notices from ABAG as the lead agency in this process, and other triggers will be used, Finally, the Annex will be a discussion item on the agenda of the meeting of Town department heads at least once a year. At that meeting, the department heads will focus on evaluating the . Town of Tiburon - Annex 4 October 5, 2005 .. i;-: . . . Annex in light of technological and political changes during the past year or other significant events. This group will be responsible for determining if the plan should be updated. The Town of Tiburon is committed to reviewing and updating this plan annex at least once every five years, as required by the Disaster Mitigation Act of2000. The Town Community Development Director will contact ABAG four years after this plan is approved to ensure that ABAG plans to undertake the plan update process, If so, the Town again plans to participate in the multi-jurisdictional plan. If ABAG is unwilling or unable to act as the lead agency in the multi-jurisdictional effort, other agencies will be contacted, including the County's Office of Emergency Services, Counties should then work together to identify another regional forum for developing a multi-jurisdictional plan. The public will continue to be involved whenever the plan is updated, and as appropriate during the monitoring and evaluation process, Prior to adoption of updates, the Town will provide the opportunity for the public to comment on the updates. Apublic notice will be posted prior to the meeting to announce the comment period and meeting logistics. Town of Tiburon - Annex 5 October 5, 2005 J . <~ ;:\ . Taming Natural Disasters Multi ~Jurisdictional Local Government Hazard Mitigation Plan , for the San Francisco Bay Area . Adopted by ABAG .Executive Board - March 17, 2005 ASSOCIATION OF BAY AREA GOVERNMENTS . EXHIBIT NO. d- "'" ':.. , , .i }.!. . BACKGROUND The purpose of this Local Hazard Mitigation Plan document is to serve as a catalyst for a dialog on public policies needed to mitigate the natural hazards that affect the San Francisco Bay Area. The overall strategy is to use this multi-jurisdictional effort to not only maintain and enhance the disaster resistance of our region, but also to fulfill the requirements of the Disaster Mitigation Act of 2000 for all local governments to develop and adopt this type of plan. ' For purposes of this plan, local governments include not only the cities and counties of our region, but also special districts with elected boards. For information complete information on ABAG's Local Hazard Mitigation Planning Effort, including interactive hazard mapping and risk assessment, see our Internet site at: http://quake. abag,ca.gov/mitigation ABAG Publication Number: P05001EQK . . Taming Natural Disasters ii March 17, 2005 , . . . . ':" Table of Contents page Background . ,...,.,... .,....,.. ,..,... ....."." ,.............. ......",... ...... :.. ,... ......".,."..'.', ,........... ,...,,; .....,.. ..,.,..11 Credits,.,.. ....".., ....,.,..,. .,... ,..... ....... ........".. '..........'. ............. ..... .... ,.. .."....,...,........ ......", ..,.......,...".. iv Goals"."."....,."..""""...,.,."".""""...."...."...""..,....:....."...,..",.."",...""""..",.,..,.", ....,...,.,.,.,.""..,1 Our Challenge ..,... ....... ......,'..." ,..:.., ,...",..,. .........,..., ....,...,.. ......,.....,......,.................... ,.......1 Overall Goal.... .... ..,."", ...... ........".,... ,... ...., ,...".. .......;".."..", ....."" .......,....,. ,... ..... ,..,......,..",1 Commitments .. ",. "..... "".." ",." ,...." ,...".", '....., ...". ",... ...." .".", ,..."."", ....... ""... ...".., ....'.. ,,2 Implementation Strategies ..."""."."...,..,...",.,..."",......",.,...",......"..,..""..:...........""..,.",.."..,.,,3 Background on Implementation Strategy Organization ....,... ............,..... ,... ,... ...... ......,. ....,3 Strategies and Priorities ...."".."""""....",.,...."""".,..",.""",.....,.,..."""""",....:...".,.".".,., 4 1, Infrastructure (INFR) .".,.....,."""""...,. ~,..,."",......",.",."".,.,.",.."......""",.,."."...,.,.""",5 2, Health (HEAL) ... ......".... ,.., ..,....~.. ............ .....". ..,.......,. ,.. ,.. .........,..,.,..... ,...,.....",.".,..,.,10 3, Housing (HSNG) ... ............,.",..., ,....." ..,....,..., ,.. ........,.., .......'",........." ,..,..,.........,.,..", ,11 '4. Economy (ECON) . ,...., ,..... ......'...... ,.,....,."... ...., ,...,.. ......",.., ...... .,.....',...."......,.'......"" ,18 5, Government Services (GOVT) .......,. ,..,. ......, ......, ,.......".. ...........,...,....,.", ...... .,.",..".., ,24 6, Education (EDUC) ......,.,....""., ......".., .......,..,... ..... ,..." .............. ......,..., ..... ,...........,...., ,27 7, Environment (ENVI) ..... ....... ....,. ..,.. ,.......,. ,... ....... ..,.,. ...'.....". ..".." ....... ,..... ,.....,...,...... ,.28 8, Land Use (LAND) .. ,.. ,.,...., ,.......,... ......., ....",. .... '...... ....... ,..,.. ,....".,..', ...." '....... ....,...,.. ...30 Appendices A - The Planning Process ........ ..,.,......... ....,........,." ,..... .... ..... ...... ,........". ..,....,,;.... ,....... ......,.,.,.... 32 B - The Plan Maintenance and Update Process .......................,..,.,........,..,.................,................ 39 C - Natural Hazards Risk Assessment....,...., .,.,......... ,.... ............,. ............. ..... ......,. ................ ......, 41 D - Disaster History..", .... ........'..', ......... ...".., ..:................ ....,..""" ...., ;,...,.. ,... ,.,.. ....." ....."......,.",,"74 E - Record of Plan Participation ...... ..,............. ,.... ...,.... .......... ........ ................ ,... ...,......., ....... ......., 86 Annexes Annexes for ABAG and other local governments in the Bay Area are appended to this Local Hazard Mitigation Plan, Taming Natural Disasters March 17,2005 jjj Credits Principal Project Manager: Jeanne B. Perkins - Earthquake Program Manager, Association of Bay Area Governments ABAG Staff Support: Brian Kirking - Senior Planner and Data Analyst Jennifer Shanks - Planning and GIS Assistant Kearey Smith - GIS Manager (through September 2004) Michael Smith - Planner (through September 2004) and GIS Manager (starting in October 2004) ABAG Management: Henry Gardner - Executive Director Janet McBride - Planning Director The writing and production of this report was funded by Grant No. PDM-03 PL04 from the Department of Homeland Security's Federal Erriergency Management Agency (FEMA) through the California Governor's Office of Emergency Services, as well as by the Association of Bay Area Governments and, through in-kind services, the local governments of the Bay Area. Taming Natural Disasters iv March 17, 2005 -. . . . . . ., Goals Our Challenge The San Francisco Bay Area is in a spectacular region with valleys and ridges, views and access to rivers, the ocean, and the Bay, and a mild climate, It is also home to 7 million people and has a $400 billion economy!. But many of those ridges and valleys have been formed by active earthquake faults that can generate devastating shaking and ground failures, The typically mild climate is subject to occasional winter storms leading to landslides in the hills and flooding of the valleys, During the fire season, typically from May through November, the region is subject to periods of Diablo Winds bringing high temperatures, gusting winds; and low humidity, Tinder-dry trees, brush, and grasslands are subject to fires that can become catastrophic on the edges of urban development. Given an increasingly mobile population, our citizens and crops are subject to disease epidemics, Natural disasters can lead to secondary events that are disasters in themselves, including hazmat releases and darn failures, During the period from 1950 - 2000, all or part of the Bay Area was subjected to 56 disasters, or about a third of the 181 occurring in the entire State of California during that time2, These hazards are not new, and neither are the risks to lives, property, the environment, and our economy. Bay Area local governments, together with private utilities and the state, have created programs and regulations that are as creative and comprehensive as any region in the world, Overall Goal To maintain and enhance a disaster-resistant region by'reducing thepotentialloss of life, property damage, and environmental degradation from natural disasters, while accelerating economic recovery from those disasters. We need to continue to work to reduce and avoid risks from natural hazards to protect lives, property, the environment, and our economy. This natural hazard mitigation plan is a joint effort by the cities, counties, and special districts in the Bay Area to build a more disaster-resistant region, We recognize that disasters do not respect the boundaries between our individual jurisdictions and have worked together to identify oUf hazards, assess our risks, and develop this goal, eight commitments, and a comprehensive list of strategies (or actions) to mitigate the identified risks, We view this plan as a shared mental model of our overall goal, commitments, and mitigation actions, We can no longer afford random acts ofpreparedness and mitigation. 1 Fassinger and others, 2003 - ABAG's Projections 2003. Economy is based on annual Gross Regional Product (GRP). 2 California Governor's Office of Emergency Services database of disasters and major states of emergencies. Taming Natural Disasters 1 March 17, 2005 Commitments . The overall goal is being addressed by asking all local governments in the Bay Area to adopt formal resolutions in support of the following eight commitments areas, These commitments are not organized by hazard, but by the types of services supplied either directly, or indirectly, by local governments, With this organization, each of the Bay Area's cities and counties should find ways to address these major commitments by reducing identified risks, In addition, the Bay Area's special districts can address many of these commitments, depending on the role and responsibilities of that district. Together, we are committed to increasing the disaster resistance of the infrastructure, health, housing, economy, government services, education, environment, and land use systems in the Bay Area. 1. Infrastructure Bay Area transportation and utility facilities and networks are vital lifelines during and following disasters, as well as in the functioning of our region and its economy, 2. Health Bay Area facilities, networks, and systems providing care of sick and those with special needs need to be resilient after disasters for these systems will need to care for additional injured at the same time as those currently cared for are stressed, 3. Housing Bay Area residents need to have safe and disaster-resistant housing that is architecturally diverse . and serves a variety of household sizes and incomes, 4. Economy Safe, disaster-resilient, and architecttirally diverse downtown commercial areas, business and industrial complexes, and office buildings are essential to the overall economy of the Bay Area. 5. Government Services Bay Area city and county governments, as well as community services agencies, provide essential services during and immediately following disasters, as well as critical functions during recovery, that need to be resistant to disasters, 6. Education Safe and disaster-resistant school, education, and childcare-related facilities are critical to the safety of our children, as well as to the quality of life of Bay Area families, 7. Environment Disaster resistance needs to further environmental sustainability, reduce pollution, strengthen agriculture resiliency, and avoid hazardous material releases in the Bay Area. 8. Land Use Land use change needs to be accompanied by a respect for hazardous "areas and facilities, as well as recognize the interconnected nature of the Bay Area, . Taming Natural Disasters 2 March 17,2005 . Implementation Strategies Background on Implementation Strategy Organization The implementation strategies, or action items, are listed under the eight major commitments identified on the previous page, rather than by hazard, As stated in the previous section, with this organization, each of the Bay Area's cities and counties should find ways to address these major commitments by ~educing identified risks, In addition, the Bay Area's special districts can address many of these commitments, depending on the role and responsibilities of that district. Any scheme to identify a comprehensive list of potential strategies is bound to have some overlaps. This list is no exception, Because those ideas listed under housing and economy have at their core the relationship between government and the people who live and work in their jurisdictions, there is overlap, City and counties, as wen as special districts handling lifelines and schools, have buildings thatare critical to their functioning, so there is duplication in the discussion of these issues, . Most of the strategies listed are clearly within the definition of "hazard mitigation, " that is, "any action taken to reduce or eliminate the long-term risk to human life and property from natural hazards.',3 The strategies address an of the hazards identified when performing the risk assessment work described in Appendix C, In addition, there are four notable areas where we have "pushed" this definition, . The first is in the area of public education, Author Stephen Flynn notes in his 2004 book4 in a plea for greater public education following 9/11 that federal "security officials often act as though members of the American public are either potential recruits for an easily panicked mob or a passive part of a haystack that must constantly be sifted through to find terrorist needles." The Bay Area learned this lesson twelve years earlier in 1989 asa result of the Lorna Prieta earthquake. People who live and work in our region also need to understand our hazards so that they can take appropriate mitigation measures in their homes, schools, and work places, . Second, we have included under Government Services several ideas to "Maintain and Enhance Local Government's Emergency Response and Recovery Capacity." These ideas have been included because we believe that many go well beyond the traditional response activities of city and county police and fire servIces: . Several strategies are drafted so that they apply to natural - and security - hazards, such as the mitigation of disasters resulting from weapons of mass destruction, Hazmat releases and dam failures due to flooding, earthquakes, or terrorism have some similar impacts and therefore some similar mitigation strategies. Some methods of combating "common" crime and violence may deter major terrorist actions. . Finally, the strategies dealing with health, both under the Health commitment, as well as sprinkled elsewhere in this document, have traditionally been funded by the Centers for Disease Control and Prevention (CDe), rather than FEMA. They also may involve the use ofthe National Disaster Medical System under U,S. Health and Human Services (including both uniformed and non-uniformed medical personnel under the U,S, Surgeon General). We view this Local Hazard Mitigation Plan, while a requirement of the Disaster Mitigation Act of 2000 being administered by FEMA, as an opportunity to build administrative bridges in the public health field, For example, local government actions to deal with managing "natural" deadly pathogens such as SARS, AIDS, West Nile, and mad cow disease in an increasingly mobile world can also assist in the response to bioterrorism, . 3 Stafford Act (44 CFR 206:401) " 4 Flynn, Stephen. 2004. America the Vulnerable: How Our Government Is Failing to Protect Usfrom Terrorism. HarperCollins Publishers, New York, page 160, Taming Natural Disasters 3 March 17,2005 Status and Priorities . For each of the following potential mitigation strategies, local governments have been asked to choose their own priority for this strategy, The priorities in each of these local government Annexes were selected based on: . the level of hazards identified in Appendix C, . the Bay Area preliminary risk assessment conducted and described in Appendix C, . supplementary hazard and risk assessment information developed by ABAG for each local government on the interactive internet site http://quake,abag.ca,gov/mitigation, and . any specific studies conducted by the local government and included in that local government's Annex to this plan, The priorities for each local government participating in this multi-jurisdictional plan are in that local government'sAnnex to this plan, [ ] Existing program Responsible agency or department Provide ordinance or resolution number, if applicable ] Very High priority - to be adopted by local government immediately Responsible agency or department ] High priority - to be adopted by local government as soon as funding and resources allow Agency responsible for seeking and administering funding Sources of potential funding Estimated amount of funding needed ] Moderate priority - will be adopted by local government as funding and resources allow . ] Under study Responsible agency or department Provide estimated date of completion [ ] Not applicable, not appropriate, or not cost effective [ ] Not yet considered This list is a "work in progress." It will expand and change over time, hopefully becoming as dynamic as the restless earth whose hazards demand 0uI' attention, It is not meant to discourage local experimentation with alternative strategies, Rather, itis meant to be a list of both common and innovative practices. In addition, local governments choosing to reword specific strategies to meet their local needs, or to be more specific in their strategies, are encouraged to do so, Some of the strategies will not be appropriate for some jurisdictions, but all jurisdictions" should be able to address the general commitments with identifiable actions, Valid risk management requires a careful weighing of the advantages and disadvantages of action, Thus, while some strategies may be appropriate for some jurisdictions, those same strategies may not be appropriate or may not be cost effective for others. Over time, we are committed to developing better hazard and risk information to use in making those trade-offs, We are not trying to create . Taming Natural Disasters 4 March 17, 2005 . . " a disaster-proofregion, but a disaster-resistant one. Finally, the cost of strategies varies greatly. Some of the most cost-effective relate to building and maintaining partnerships, not buildings, Following approval of this plan by FEMA, ABAG will include the comprehensive strategies identified by all of these local governments Annexes as an interactive searchable database on that same internet site at http://quake.abag,ca,gov/mitigation.This interactive capability should begin to assist the California Office of Emergency Services in its efforts to monitor the effectiveness of this Local Hazard Mitigation Plan," For example, since this list of strategies has been conceived as a comprehensive list of "best practices," strategies given relatively lower priorities by most local governments might be viewed as a multHunsdictional weakness, while those utilized and given a relatively high priority by most local governments might be viewed as a multi-jurisdictional strength. Decisions on those strategies utilized and given a relatively high priority have been based on a variety of criteria, not simply on an economic cost-benefit analysis, These criteria include being . technically and administratively feasible, politically acceptable, socially appropriate, legal, economic;l1ly sound, and not harmful to the environment or our heritage, Scope of Mitigation Strategies - New arid Existing Development Not only are the mitigation strategies have been designed to cover all of the hazards identified during the development of the natural hazard risk assessment for the plan as described in Appendix C, but the strategies also are designed to apply to existing development, new development, and even land use planning. For example, many of the strategies in infrastructure, housing, and economy focus on existing buildings, while many of those in land use focus on new development and general land use planning. 1. Infrastructure (INFR) Bay Area transportation and utility facilities and networks are vital lifelines during and following disasters, as well as in the functioning of our region and its economy, INFR-a. Multi-hazard I) Assess the vulnerability of critical facilities designated by lifeline operators5 to damage in natural disasters or security threats, including facilities owned outside of the Bay Area that can impact service delivery within the region. 2) Comply with State of California and federal requirements to assess the vulnerability of dams to damage from earthquakes, seiches, landslides, liquefaction, or security threats, 3) Encourage the cooperation of utility system providers and cities, counties, and other special districts to develop strong and effective mitigation strategies for infrastructure systems and facilities, 4) Retrofit or replace critical lifeline facilities and/or their backup facilities that are shown to be vulnerable to damage in natural disasters, . 5 Lifeline agencies, departments, and districts are those that operate transportation and utility facilities and networks. Taming Natural Disasters 5 March 17, 2005 5) Support and encourage efforts of other (lifeline) agencies as they plan for and . arrange financing for seismic retrofits and other disaster mitigation strategies, (For example, a city might pass a resolution in support of a transit agency's retrofit program,) 6) Plan for speeding the repair and functional restoration of lifeline systems through stockpiling of shoring materials, temporary pumps, surface pipelines, portable " hydrants, and other supplies, such as those available through the Water Agency Response Network (WARN). " 7) Engage in, support, and/or encourage research by others on measures to further strengthen transportation, water, sewer, and power systems so that they are less vulnerable to damage in disasters, 8) Pre-position emergency power generation capacity (or have rental/lease agreements for these generators) in critical buildings of cities, counties, and special districts to maintain continuity of government and services, 9) Have back-up emergency power available for critical intersection traffic lights. 10) Develop unused or new pedestrian rights-of-way as walkways to serve as additional evacuation routes (such as fire roads in park lands), 11) Coordinate with PG&E and others to investigate ways of minimizing the likelihood that power interruptions will adversely impact vulnerable communities, such as the disabled and the elderly, 12) Encourage replacing aboveground electric and phone wires and other structures with underground facilities, and use the planning-approval process to ensure that all new phone and electrical utility lines are installed underground, 13) Coordinate with the State Division of Safety of Dams to ensure an adequate . time line for the maintenance and inspection of dams, as required of dam owners by State law, 14) Encourage communication between State OES, FEMA, and utilities related to emergencies occurring outside of the Bay Area that can affect service delivery in the region, 15) Ensure that transit operators, private ambulance companies, cities, and/or counties have mechanisms in place for medical transport during and after disasters that take into consideration the potential for reduced capabilities of roads following these same disasters, 16) Effectively utilize the Transportation Management Center (TMC), the staffing of which is provided by Caltrans, the CHP and MTC, The TMC is designed to maximize safety and efficiency throughout the highway system. It includes the Emergency Resource Center (ERC) which was created specifically for primary planning and procedural disaster management. " INFR-b. Earthquakes 1) Expedite the funding and retrofit of seismically,.deficient city- and county-owned bridges and road structures by working with Caltrans and other appropriate governmental agencies. 2) Establish a higher priority for funding seismic retrofit of existing transportation and infrastructure systems (such as BART) than for expansion of those systems. . Taming Natural Disasters 6 March 17, 2005 . .3) Include "areas subject to high ground shaking, earthquake-induced ground failure, and surface fault rupture" in the list of criteria used for determining a replacement schedule for pipelines (along with importance, age, type of construction material, size, condition, and maintenance or repair history), 4) Install specially-engineered pipelines in areas subject to faulting, liquefaction, earthquake-induced landsliding, or other earthquake hazard, 5) Replace or retrofit water-retention structures that are determined to be structurally deficient. 6) Install portable facilities (such as hoses, pumps, emergency generators, or other equipment) to allow pipelines to bypass failure zones such as fault rupture areas, areas of liquefaction, and other ground failure areas (using a priority scheme if funds are not available for installation at all needed locations), 7) Install earthquake-resistant connections when pipes enter and exit bridges. 8) Comply with all applicable building and fire codes, as well as other regulations (such as state requirements for fault, landslide, and liquefaction investigations in particular mapped areas) when constructing or significantly remodeling infrastructure facilities, 9) Clarify to workers in critical facilities and emergency personnel, as well as to elected officials and the~public, the extent to which the facilities are expected to perform only at a life safety level (allowing for the safe evacuation of personnel) or are expected to remain functional following an earthquake, 10) Examine the feasibility of developing a water-borne transportation "system" - comprised mainly of relatively inexpensive barges - across the Bay for use in the event of major earthquakes, Implementation of such a system could prove extremely useful in the event of structural failure of either the road-bridge systems or BART and might serve as an adjunct to existing transportation system elements in the movement of large numbers of people and/or goods, . INFR-c. 1) Wildfire Ensure a reliable source of water for fire suppression (meeting acceptable standards for minimum volume and duration of flow) for existing and new development. ' 2) Develop a coordinated approach between fire jurisdictions and water supply agencies to identify needed improvements to the water distribution system, initially focusing on areas of highest wildfire hazard, 3) Develop a defensible space vegetation program that includes the clearing or thinning of (a) non-fire resistive vegetation within 30 feet of access and evacuation roads and routes to critical facilities, or (b) all non-native species (such as eucalyptus and pine, but not necessarily oaks) within 30 feet of access and evacuation roads and routes to critical facilities, 4) Ensure all dead-end segments of public roads in high hazard areas have at least a "T" intersection turn-around sufficient for typical wildland fire equipment. 5) Enforce minimum road width of20 feet with an additional H)-foot clearance on each shoulder on all driveways and road segments greater than 50 feet in length in wildfire hazard areas, . Taming Natural Disasters 7 March 17, 2005 6) Require that development in high fire hazard areas provide adequate access roads . (with width and vertical clearance that meet the minimum standards of the Fire Code or relevant local ordinance), onsite fire protection systems, evacuation signage, and fire breaks. ' 7) Ensure adequate fire equipment road or fire road access to developed and open space areas, 8) Maintain fire roads and/or public right-of-way roads and keep them passable at all times, INFR-d. Flooding 1) Conduct a watershed analysis of runoff and drainage systems to predict areas of insufficient capacity in the storm drain and natural creek system, 2) Develop procedures for performing a watershed analysis to look at the impact of development on flooding potential downstream, including communities outside of the jurisdiction of proposed projects, 3) Conduct a watershed analysis at least once every three years, 4) Assist, support, and/or encourage the U.S. Army Corp of Engineers, various Flood Control and Water Conservation Districts, and other responsible agencies to locate and maintain funding for the development of flood control projects that have high cost-benefit ratios (such as through the writing ofletters of support and/or passing resolutions in support ofthese efforts). 5) Pursue funding for the design and construction of storm drainage projects to protect vulnerable properties, including property acquisitions, upstream storage . such as detention basins, and channel widening with the as~ociated right-of-way acquisitions, relocations, and environmental mitigations, 6) Continue to repair and make structural improvements to storm drains, pipelines, and/or channels to enable them to perform to their design capacity in handling water flows as part of regular maintenance activities, 7) Continue maintenance efforts to keep storm drains and creeks free of obstructions, while retaining vegetation in the channel (as appropriate), to allow for the free flow of water. 8) Enforce provisions under creek protection, stormwater management, and discharge control ordinances designed to keep watercourses free of obstructions and to protect drainage facilities to confirm with the Regional Water Quality Control Board's Best Management Practices. 9) Develop an approach and locations for various watercourse bank protection strategies, including for example, (1) an assessment of banks to inventory areas that appear prone to failure, (2) bank stabilization, including installation of rip rap, (3) streambed depth management using dredging; and (4) removal of out-of- date coffer dams in rivers and tributary streams, 10) Use reservoir sediment removal as one way to increase storage for both flood control and water supply, 11) Elevate critical bridges affected by flooding to increase stream flow and maintain critical access and egress routes, . Taming Natural Disasters 8 March 17,2005 . 12) Provide a mechanism to expedite the repair or replacement oflevees that are . vulnerable to collapse from earthquake-induced shaking or liquefaction, rodents, and other concerns, particularly those protecting critical infrastructure. 13) Ensure that utility systems in new developments are constructed in ways that reduce or eliminate flood damage, 14) Determine whether or not wastewater treatment plants are protected from floods, and if not, investigate the use of flood-control berms to not only protect from " stream or river flooding, but also increasing plant security, 1 5) Work cooperatively with water agencies, flood control districts, Caltrans, and local transportation agencies to determine appropriate performance criteria for watershed analysis. 16) Work for better cooperation among the patchwork of agencies managing flood control issues, 17) Work cooperatively with upstream communities to monitor creek and watercourse flows to predict potential for flooding downstream. . INFR-e. Landslides 1) Include "areas subject to ground failure" inthe list of criteria used for determining a replacement schedule (along with importance, age, type of construction ,material, size, condition, and maintenance or repair history) for pipelines, 2) Establish requirements in zoning ordinances to address hillside development constraints in areas of steep slopes that are likely to lead to excessive road maintenance or where roads will be difficult to maintain during winter storms due to landsliding. INFR-f. 1) Building Reoccupancy Ensure that critical buildings owned Or leased by special districts or private utility companies participate in a program similar to San Francisco's Building Occupancy Resumption Program (BORP), The BORP program permits owners of buildings to hire qualified structural engineers6 to create facility-specific post- disaster inspection plans and allows these engineers to become automatically deputized as City/County inspectors for these buildings in the event of an earthquake or other disaster. This program allows rapid reoccupancy of the buildings. INFR-g. Public Education 1) Provide materials to the public related to planning for power outages, 2) Provide materials to the public related to family and personal planning for delays due to traffic or road closures, 3) Provide materials to the public related to coping with reductions in water supply or contamination of that supply, 4) Provide materials to the public related to coping with disrupted storm drains, "sewage lines, and wastewater treatment. . 6 A qualified structural engineer is a California licensed structural engineer with relevant experience. Taming Natural Disasters 9 March 17, 2005 5) Facilitate and/or coordinate the distribution of materials that are prepared by . others, such as by placing materials in city or utility newsletters, or on community access channels, as appropriate, 2. Health (HEAL) Bay Area facilities, networks, and systems providing care of sick and those with special needs need to be resilient after disasters for these systems will need to care for additional injured at the same time as those currently cared for are stressed, HEAL-a. Hospitals and Other Critical Health Care Facilitiei 1) Work with critical health care facilities operators to ensure that critical facilities are structurally sound and have non structural systems designed to remain functional following disasters (as required for acute-care hospitals for earthquakes by State law), 2) Encourage hospitals to work with the California Office of Statewide Health Planning and Development (OSHPD) to formalize arrangements with structural engineers to report to the hospital, assess damage, and determine if the buildings can be reoccupied, The program should be similar to San Francisco's Building Occupancy Resumption Program (BORP) that permits owners of buildings to hire qualified structural engineers to create building-specific post-disaster inspection plans and allows these engineers to become automatically deputized as inspectors for these buildings in the event of an earthquake or other disaster. OSHPD, rather . than city/county building departments, has the authority and responsibility for the structural integrity of hospital structures. 3) Ensure health care facilities are adequately prepared to care for victims with respiratory problems related to smoke and/or particulate matter inhalation. 4) Ensure these health care facilities have the capacity to shut off outside air and be self-contained, 5) Ensure that hospitals and other major health care facilities have auxiliary water and power sources. 6) Work with health care facilities to institute isolation capacity should a need for them arise following a communicable disease epidemic, 7) Develop printed materials, utilize existing materials (such as developed by FEMA and the American Red Cross), conduct workshops, and/or provide outreach encouraging employees of these critical health care facilities to have family disaster plans and con~uct mitigation activities in their own homes, \ 7 Critical care facilities include hospitals, long-tenn care, primary care, or specialty clinics (such as dialysis clinics), . home health agencies, or hospices. Taming Natural Disasters 10 March 17,2005 . . . HEAL-b. Ancillary Health-Related Facilities8 I) Work with State of California licensing agencies to identify these ancillary facilities in your community. 2) Encourage ancillary facility operators to develop disaster mitigation plans, 3) Encourage ancillary facility operators to create, maintain, and/or continue partnerships with local governments to develop response and recovery plans, HEAL-c. Environmental Health I) Create and/or participate in discussion forums for food and health personnel, including, for example, medical professionals, veterinarians, plant pathologists, and city/county environmental health officers to develop safety, security, and response strategies for food supply contamination. HEAL-d. Interface with National and State Health Care Initiatives I) Designate locations for the distribution of antibiotics to large numbers of people should the need arise, as required to be included in each county's Strategic National Stockpile" Plan~ 2) Train appropriate personnel to understand that the Metropolitan Medical Response System (MMRS) cities in your area. For example, Oakland and Fremont are the MMRS cities in Alameda County, MMRS cities are those cities that are provided with additional federal funds for organizing, equipping, and training groups of local fire, rescue, medical, and other emergency management personnel. 3) Train appropriate personnel to know if any National Disaster Medical System (NDMS) uniformed or non-uniformed personnel are within one-to-four hours of your community, These federal resources include.veterinary, mortuary, and medical personnel. 4) Train appropriate personnel to know to utilize the State of Cali fomi a Department of Health Services laboratory in Richmond for confirmation of biological agents and Department of Defense laboratories in Berkeley (Lawrence Ber~eley National Laboratory) or Livermore (Lawrence Livermore National Laboratory and Sandia) for confirmation of radiological agents. 3." Housing (HSNG) Bay Area residents need to have safe and disaster-resistant housing that is architecturally diverse and serves a variety of household sizes and incomes, HSNG-a. Multi-Hazard I) Be aware of past problems of inadequate hazard disclosure and work with real estate agents to improve enforcement of real estate disclosure requirements for those hazards covered by this plan, for example, by making those agents and the 8 Ancillary health care facilities include pharmacies, private offices of health care providers (such as doctors, dentists, ophthalmologists, psychologists, and alternative medical care'givers), retail sales offices for health care devices (such as optometric, auditory, or prosthetic devices), laboratories, and offices of the private non-profit agencies services clients, Taming Natural Disasters 11 March 17,2005 disclosure firms aware of the hazard maps incorporated in this plan and available . on the ABAG web site at http://quake,abag,ca,gov/mitigation, as well as locally developed maps. 2) Create incentives for owners of historic or architecturally significant buildings to undertake mitigation to levels that will minimize the likelihood that these buildings will need to be demolished after a disaster, particularly if those alterations conform to the federal Secretary of the Interior's Guidelines for Rehabilitation, HSNG-b. Single-Family Homes Vulnerable to Earthquakes I) Utilize or recommend adoption of a retrofit standard that includes standard plan sets and construction details for voluntary bolting of homes to their foundations and bracing of outside walls of crawl spaces ("cripple" walls), such as that being developed by a committee representing the East Bay-Peninsula-Monterey Chapters of the International Code Council (ICC), California Building Officials (CALBO), the Structural Engineers Association of Northern California (SEAONC), the Northern California Chapter of the Earthquake Engineering Research Institute (EERI-NC), and ABAG's Earthquake Program, 2) Require engineered plan sets for retrofitting of heavy two-story homes with living areas over garages, as well as for split level homes, until standard plan sets and construction details become available, 3) Require engineered plan sets for retrofitting of homes on steep hillsides, 4) Encourage local government building inspectors to take classes on a periodic basis (such as the FEMA-developed training classes offered by ABAG) on . retrofitting of single-family homes. 5) Encourage private retrofit contractors and home inspectors doing work in your area to take retrofit classes on a periodic basis (such as the FEMA-developed training classes offered by ABAG) on retrofitting of single-family homes, 6) Conduct demonstration projects on common existing housing types demonstrating structural and nonstructural mitigation techniques as community models for earthquake mitigation. 7) Provide retrofit classes or workshops for homeowners, 8) Establish tool-lending libraries with common tools needed for retrofitting for use by homeowners with appropriate training. 9) Provide financial incentives to owners of applicable homes to retrofit. HSNG-c. Soft-Stor/ Multifamily Residential Structures Vulnerable to Earthquakes I) Require engineered plan sets for voluntary or mandatory soft-story retrofits until a standard plan set and construction details become available, 9 A condition in which the building has far less stiffness in its lowest story than in upper stories, often due to multiple garage openings at the ground floor or large open windows for commercial space, increasing the likelihood of excessive sidesway or even collapse. Many of these buildings collapsed in the 1971 San Femando,-1989 Lorna Prieta, and 1994 Northridge earthquakes. An engineering definition is "a condition in which the stiffness ofthe seismic-foree-resisting system in any story is less than 70 percent of the stiffness in the story above" (modified from . the American Society of Civil Engineers (ASCE 31), " Taming Natural Disasters 12 March 17, 2005 . 6) 7) 8) 9) HSNG-d. . 1) 2) 2) Adopt the 2003 International Existing Building Code, the 1997 UBC, or the latest applicable code standard for the design of voluntary or mandatory soft-story building retrofits. 3) Work to educate condominium and apartment owners, local government staff, engineers, and contractors on soft,;,story retrofit procedures and incentives using materials such as those developed by ABAG (see http://quake,abag,ca,gov/fixit) and the City of San Jose. 4) Conduct an inventory of existing or suspected soft..story residential structures, 5) Use the soft-:story inventory to require owners to inform all existing tenants that they live in this type of building and the standard to which it may have been retrofitted, as well as require owners to inform tenants that they will live in this type of building prior to signing a lease. Use the soft-story inventory to require owners to inform all existing tenants that they should be prepared to live elsewhere following an earthquake if the building has not been retrofitted, Investigate and adopt appropriate financial, procedural, and land use incentives for owners of soft-story buildings to facilitate retrofit such as those developed by ABAG (see http://quake,abag.ca.gov/fixit). Explore development oflocal ordinances or State regulations to require or encourage owners of soft-story structures to strengthen them, Provide technical assistance in seismically strengthening soft-story structures. Unreinforced Masonry Housing Stock Continue to actively implement existing State law that requires cities and counties to maintain lists of the addresses of unrein forced masonry buildings and inform property owners that they own this type of hazardous structure, Accelerate retrofitting of unrein forced masonry structures that have.not been retrofitted, for example, by (a) actively working with owners to obtain structural analyses of their buildings, (b) helping owners obtain retrofit funding, (c) adopting a mandatory versus voluntary, retrofit program, and/or (d) applying penalties to owners who show inadequate efforts to upgrade these buildings, 3) Require owners to inform all existing tenants that they live in this type of building and the standard to which it may have been retrofitted, as well as require owners to inform tenants that they will live in this type of building prior to signing a lease, 4) Require owners to inform all existing tenants that they should be prepared to live elsewhere following an earthquake "even if the building has been retrofitted, for it has probably been retrofitted to a life-safety standard, not to a standard that will allow occupancy following major earthquakes, HSNG-e. Other Privately Owned Structural-Suspicious Residential Buildings and Earthquakes 1) Identify and work toward tying down mobile homes used as year-round permanent residences using an appropriate cost-sharing basis (for example, 75% grant, 25% owner), . Taming Natural Disasters 13 March 17, 2005 2) Inventory non-ductile concrete, tilt-up concrete, and other privately-owned . structurally suspicious residential buildings, 3) Adopt the 2003 International Existing Building Code, the 1997 UBC, or the latest applicable code standard for the design of voluntary or mandatory retrofit of seismically vulnerable buildings, 4) Adopt one or more of the following strategies as incentives to encourage retrofitting of privately-owned structurally deficient residential buildings: ( a) waivers or reductions of permit fees, (b) below-market loans, (c) local tax breaks, (d) grants to cover the cost of retrofitting or of a structural analysis, (e) land use and procedural incentives, or (f) technical assistance, HSNG-f. 1) New Construction and Earthquakes Continue to require that all new housing be constructed in compliance with structural requirements of the most recently adopted version of the California Building Code, 2) Conduct appropriate employee training and support continued education to ensure enforcement of building codes and construction standards, as well as identification of typical design inadequacies of housing and recommended improvements, HSNG-g. Wildfire and Structural Fires 1) Increase efforts to reduce hazards in existing development in high wildfire hazard areas (identified as wildland-urban-interface fire-threatened communities or in areas exposed to high-to-extreme fire threat) through improving engineering . design and vegetation management for mitigation, appropriate code enforcement, and public education on defensible space mitigation strategies, 2) Tie public education on defensible space and a comprehensive defensible space ordinance to a field program of enforcement. 3) Require that new homes in wildland-urban-interface fire-threatened communities or in areas exposed to high-to-extreme fire threat be constructed of fire-resistant building materials (including roofing and exterior walls) and incorporate fire- resistant design features (such as minimal use of eaves, internal comers, and open first floors) to increase structural survivability and reduce ignitabilitylo. 4) Develop financial incentives for homeowners to be "model" defensible space homes in neighborhoods that are wildland-urban- interface fire-threatened communities or in areas exposed to high-to-extreme fire threat. 5) Consider fire safety, evacuation, and emergency vehicle acceSs when reviewing proposals to add secondary units or additional residential units in wildland-urban- interface fire-threatened communities or in areas exposed to high-to-extreme fire threat. 6) Adopt and/or amend, as needed, updated versions of the California Building and Fire Codes so that optimal fire-protection standards are used in construction and renovation projects, 10 See Structural Fire Prevention Field Guide for Mitigation of Wildfires at . http://osfm.fire.ca.!!ov/structuraI.html. Taming Natural Disasters 14 March 17,2005 . 7) Create a mechanism to enforce provisions of the California Building and Fire Codes and local housing codes that require the installation of smoke detectors and/or fire-extinguishing systems by making installation a condition of (a) finalizing a permit for any work on existing properties valued at over a fixed amount, such as $500 or $1000, and/or (b) a condition for the transfer of property if these changes are determined cost-effective strategies. 8) Work to ensure a reliable source of water for fire suppression in rural-residential areas through the cooperative efforts of water districts, fire districts, and residents. 9) Expand vegetation management programs in wildland-urban- interface fire- threatened communities or in areas exposed to high-to-extreme fire threat to more effectively manage the fuel load through roadside collection and chipping, mechanical fuel reduction equipment, selected harvesting, use of goats or other organic methods of fuel reduction, and selected use of controlled burning, 10) Promote the installation of early warning fire alarm systems in homes wildland- urban-interface fire-threatened communities or in areas exposed to high-to- extreme fire threat connected to fire department communication systems, 11) Establish a Fire Hazard Abatement District to fund reduction in fire risk of existing properties through vegetation management that includes reduction of fuel loads, use of defensible space, and fuel breaks. 12) Work with residents in rural-residential areas to ensure adequate access and evacuation in wildland-urban- interface fITe-threatened communities or in areas exposed to high-to-extreme fITe threat. 13) Require fire sprinklers in new homes located more than 1.5 miles or a 5-minute response time from a fire station or in an identified high hazard wild1and-urban- interface wildfire area. 14) Require fire sprinklers in all new or substantially remodeled multifamily housing, regardless of distance from a fire station, 15) Require sprinklers in all mixed use development to protect residential uses from fITes started in non-residential areas. 16) Compile a list of high-rise and high-occupancy buildings which are deemed, due to their age or construction materials, to be particularly susceptible to fire hazards, and determine an expeditious time line for the fire-safety inspection of all such structures. 17) Conduct periodic fire-safety inspections of all multi-family buildings, as required by State law. 18) Ensure that fire-preventive vegetation-management techniques and practices for creek sides and high-slope areas do not contribute to the landslide and erosion hazard, 19) Create a mechanism to require the bracing of water heaters and flexible couplings on gas appliances, and/or (as specified under "a, Single-family homes vulnerable to earthquakes" above) the bolting of homes to their foundations and strengthening of cripple walls to reduce fire ignitions due to earthquakes, 20) Work with the State Fire Marshall, the California Seismic Safety, PEER, and other experts to identify and manage gas-related fire risks of soft-story residential or mixed use buildings that are prone to collapse and occupant entrapment . . Taming Natural Disasters 15 March 17, 2005 consistent with the natural gas safety recommendations of Seismic Safety . Commission Report SSC-02-03,ll HSNG-h. Flooding 1) To reduce flood risk, and thereby reduce the cost of flood insurance to property owners, work to qualify for the highest-feasible rating under the Community Rating System of the National Flood Insurance Program, 2) Balance the housing needs of residents against the risk from potential flood- related hazards, 3) Ensure that new development pays its fair share of improvements to the storm drainage system necessary to accommodate increased flows from the development. 4) Provide sandbags and plastic sheeting to residents in anticipation of rainstorms, and deliver those materials to the disabled and elderly upon request. 5) Provide public information on locations for obtaining sandbags and/or deliver those sandbags to those various locations throughout a city and/or county prior to and/or during the rainy season, 6) Apply floodplain management regulations for development in the floodplain and floodway. 7) " Ensure that new subdivisions are designed to reduce or eliminate flood damage by requiring lots and rights-of-way are laid out for the provision of approved sewer and drainage facilities, providing on-site detention facilities whenever practicable, 8) Encourage home and apartment owners to participate in home elevation . programs, 9) As funding opportunities become available, encourage home and apartment owners to participate in acquisition and relocation programs for areas within floodways. 10) Encourage owners of properties in a floodplain to consider purchasing flood insurance, For example, point out that most homeowners' insurance policies do not cover a property for flood damage, HSNG-i. 1) Landslides and Erosion Increase efforts to reduce landslides and erosion in existing and future development by improving appropriate code enforcement and use of applicable standards, such as those appearing in the California Building Code, California Geological Survey Special Report 117 - Guidelines for Evaluating and Mitigating Seismic Hazards in Californial2, American Society of Civil Engineers (ASCE) report Recommended Procedures for Implementation of DMG Special Publication 117: Guidelines for Analyzing and Mitigating Landslide Hazards in Californial3, and the California Board for Geologists and Geophysicists Guidelines for Engineering Geologic Reports14, Such standards should cover excavation, fill 11 See htto:/iwww.seismic.ca.gov/pub/CSSC 2002-03 Natural%20Gas%20Safetv.odf. Note: any values that are installed may need to have both excess flow and seismic triggers ("hybrid" valves). 12 See htto:/igmw.consrv.ca.!iov/shmo/SHMPsol17.asp. 13 See http://www .scec .org/resources/ catalog/LandslideProceduresJ une02. odf. 14 See htto;//www.geologv.ca.gov/publications/engineering.odf. " . Taming Natural Disasters 16 March 17,2005 . placement, cut-fill transitions, slope stability, drainage and erosion control, slope" " setbacks, expansive soils, collapsible soils, environmental issues, geological and geotechnical investigations, grading plans and specifications, protection of adjacent properties, and review and permit issuance, 2) Increase efforts to reduce landslides and erosion in existing and future development through continuing education of design professionals on mitigation strategies, HSNG-j. Building Reoccupancy 1) Develop and enforce an ordinance for disaster-damaged structures to ensure that residential buildings are repaired in an appropriate and timely manner and retrofitted concurrently to avoid a recurrence, . HSNG-k. Public Education 1) Provide information to residents of your community on the availability of interactive hazard maps showing your community on ABAG's web site, 2) Develop printed materials, utilize existing materials (such as developed by FEMA and the American Red Cross), conduct workshops, and/or provide outreach encouraging residents tohave family disaster plans that include drop-cover-hold earthquake drills, fire and storm evacuation procedures, and shelter-in-place emergency guidelines. 3) Better inform residents of comprehensive mitigation activities, including , elevation of appliances above expected flood levels, use of fire-resistant roofing and defensible space in high wildfire threat and wildfire-urban-interface areas, structural retrofitting techniques for older homes, and use of intelligent grading practices through workshops, "publications, and media announcements and events, 4) Develop a public education campaign on the cost, risk, and benefits of earthquake, flood, and other hazard insurance, 5) Use disaster anniversaries, such as April (Earthquake Month and the 1906 earthquake), September (9/11), and October (Lorna Prieta earthquake and Oakland Hills fire), to remind the public on safety and security mitigation activities, 6) Sponsor the formation and training of Community Emergency Response Teams (CERT) training. [Note - these programs go by a variety of names in various cities "and areas,] 7) Include flood fighting technique session based on California Department of Water Resources training to the list of available public training classes offered by CERT, 8) Institute the neighborhood watch block captain and team programs outlined in the Citizen Corps program guide, 9) Assist residents in the development of defensible space through the use of, for example, "tool libraries" for weed abatement tools, roadside collection and/or chipping services (for brush, weeds, and tree branches) in wildland-urban- interface fire-threatened communities or in areas exposed to high-to-extreme fire threat. 10) Train homeowners to locate and shut off gas valves if they smell or hear gas leaking, . Taming Natural Disasters 17 March 17, 2005 11) Distribute NOAA weather radios to high-risk, limited-income families living in . flood hazard areas, 12) Develop a program to provide at-cost NOAA weather radios to residents of flood hazard areas, 13) Make use of the materials on the ABAG web site at http://quake.abag,ca.gov/fixit and other web sites to increase residentialmitigation activities related to earthquakes. (ABAG plans to continue to improve the quality of those materials over time.) 14) Develop a "Maintain-a-Drain" campaign, similar to that of the City of Oakland, encouraging businesses and residents to keep storm drains in their neighborhood free of debris, " 15) Encourage the formation of a community- and neighborhood-based approach to wildfire education and action through local Fire Safe Councils and the Fire Wise Program, 16) Inform shoreline-property owners of the possible long-term economic threat posed by rising sea levels, 17) Develop and distribute culturally appropriate materials related to disaster mitigation and preparedness, such as those on the http://www,preparenow.org website, 4. Economy (ECON) Safe, disaster-resilient, and architecturally diverse downtown commercial areas, business and industrial complexes, and office buildings are essential to the overall economy of the Bay Area. . ECON-a. Multi-Hazard 1) Be aware of past problems of inadequate hazard disclosure and work with real estate agents to improve enforcement of real estate disclosure requirements for those hazards covered ~y this plan, for example, by making those agents and the disclosure firms aware of the hazard maps incorporated in this plan and available on the ABAG web site at http://quake,abag,ca,gov/mitigation, as well as locally developed maps. - 2) Create incentives for owners of historic or architecturally significant buildings to undertake mitigation to levels that will minimize the likelihood that these buildings will need to be demolished after a disaster, particularly if those alterations conform to the federal Secretary of the Interior's Guidelines for Rehabilitation, .. Taming Natural Disasters 18 March 17, 2005 . ECON-b. Soft-Story15 Commercial Buildings Vulnerable to Earthquakes l) Require engineered plan sets for voluntary or mandatory soft-story retrofits until a standard plan set and con,struction details become available. 2) Adopt the 2003 International Existing Building Code, the 1997 UBC, or the latest applicable code standard for the design of voluntary or mandatory soft-story building retrofits. 3) Work to educate building owners, local government staff, engineers, and contractors on soft-story retrofit procedures and incentives using materials such as those developed by ABAG (see http://quake.abag,ca,gov/fixit) and the City of San Jose, 4) Conduct an inventory of existing or suspected soft-story commercial and industrial structures, 5) Use the soft-story inventory to require owners to inform all existing tenants that they work in this type of building and the standard to which it may have been retrofitted, as well as require owners to inform tenants that they will work in this type of building prior to signing a lease, 6) Use the soft-story inventory to require owners to inform all existing tenants that they should be prepared to work elsewhere following an earthquake if the building has not been retrofitted, , 7) Investigate and adopt appropriate financial, procedural, and land use incentives " for owners of soft-story buildings to facilitate retrofit. 8) Explore development of local ordinances or State regulations to require or encourage owners of soft-story structures to strengthen them, 9) Provide technical assistance in seismically strengthenjng soft-story structures, . ECON-c. Un reinforced Masonry Buildings in Older Downtown Areas l) Continue to actively implement existing State law that requires cities and counties to maintain lists of the addresses of unreinforced masonry buildings and inform property owners that they own this type of hazardous structure, 2) Accelerate retrofitting of unrein forced masonry structures that have not been retrofitted, for example, by (a) actively working with owners to obtain structural analyses of their buildings, (b) helping owners obtain retrofit funding, (c) adopting a mandatory versus voluntary, retrofit program, and/or (d) applying penalties to owners who show inadequate efforts to upgrade these buildings, 3) Require "owners to inform all existing tenants that they work in this type of building and the standard to which it may have been retrofitted, as well as require owners to inform tenants that they will work in this type of building prior to signing a lease, 4) Require owners to inform all existing tenants that they should be prepared to work elsewhere following an earthquake even if the building has been retrofitted, for it . 15 A condition in which the building has far less stiffness in its lowest story than in upper stories, often due to multiple garage openings at the ground floor or large open windows for commercial space, increasing the likelihood of excessive sidesway or even collapse. Many of these buildings colIapsed in the 1971 San Fernando, 1989 Lorna Prieta, and 1994 Northridge earthquakes. An engineering definition is "a condition in which the stiffness of the seismic-foree-resisting system in any storyis less than 70 percent of the stiffness in the story above" (modified from the American Society of Civil Engineers (ASCE 31). Taming Natural Disasters 19 March 17,2005 ';' has probably been retrofitted to a life-safety standard, not to a'standard that will allow occupancy following major earthquakes, ECON-d. Other Privately-Owned StructurallySuspicious Buildings 1) Inventory non-ductile concrete, tilt-up concrete, and other privately-owned structurally suspicious buildings, 2) Adopt the 2003 International Existing Building Code, the 1997 UBC, or the latest applicable code standard for the design of voluntary or mandatory retrofit of seismically vulnerable buildings, 3) Adopt one or more of the following strategies as incentives to encourage retrofitting of privately~owned structurally suspicious commercial and industrial buildings: (a) waivers or reductions of permit fees, (b) below-market loans, (c) local tax breaks, (d) grants to cover the cost of retrofitting or of a structural analysis, (e) land use and procedural incentives, or (f) technical assistance. ECON-e. Wildfire and Structural Fires 1) Increase efforts to reduce fire in existing development through improving engineering design and vegetation management for mitigation, appropriate code enforcement, and public education on mitigation strategies, 2) Require that new business and office buildings in high fire hazard areas be constructed of fire-resistant building materials and incorporate fire-resistant design features (such as minimal use of eaves, internal corners, and open first floors) to increase structural survivability and reduce ignitability, 3) Adopt and amend as needed updated versions of the California Building and Fire Codes so that optimal fire-protection standards are used in construction and renovation projects, 4) Create a mechanism to enforce provisions of the California Building and Fire Codes and other local codes that require the installation of smoke detectors and fire-extinguishing systems by making installation a condition of (a) finalizing a permit for any work on existing properties valued at over a fixed amount, such as $500 or $1000, and/or (b) on any building over 75 feet in height, and/or (b) as a condition for the transfer of property, 5) Expand existing vegetation management programs in commercial and/or industrial areas, 6) Establish a Fire Hazard Abatement District to fund reduction in fire risk of existing properties through vegetation management that includes reduction of fuel loads, use of defensible space, and fuel breaks, 7) Establish a Fire Hazard Abatement District to fund fire-safety inspections of private properties, roving firefighter patrols on high fire-hazard days; and public education efforts. 8) Compile a list of high-rise and high-occupancy buildings that are deemed, due to their age or construction materials, to be particularly susceptible to fire hazards, and determine an expeditious time line for the fire-safety inspection of all such structures. " 9) Conduct periodic fire-safety inspections of all commercial and institutional buildings, Taming Natural Disasters 20 March 17,2005 . . . . 10) Work with the State Fire Marshall, the California Seismic Safety, PEER, and other experts to identify and manage gas-related fire risks of soft-story mixed use buildings that are prone to collapse and occupant entrapment consistent with the natural gas safety recommendations of Seismic Safety Commission Report SSC- 02_03,16 II) Ensure that fire-preventive vegetation-management techniques and practices for creek sides and high-slope areas do not contribute to the landslide and erosion hazard, 12) Work with insurance companies to create a public/private partnership to give a discount on fire insurance premiums to "Forester Certified" Fire Wise landscaping and fire-resistant building materials. . ECON-f. Flooding . I) To reduce flood risk, thereby reducing the cost of flood insurance to property owners, work to qualify for the highest-feasible rating under the Community Rating System of the National Flood Insurance Program, 2) Balance the needs for commercial and industrial development against the risk from potential flood-related hazards. 3) Ensure that new development pays its fair share of improvements to the storm drainage system necessary to accommodate increased flows from the development, or does not increase runoffby draining water to pervious areas or detention facilities, 4) Provide sandbags and plastic sheeting to businesses in anticipation of rainstorms, and deliver those materials to the disabled and elderly upon request. 5) Provide public information on locations for obtaining sandbags and deliver those "sandbags to those various locations throughout a city and/or county, 6) Apply floodplain management regulations for development in the floodplain and floodway, 7) Encourage business owners to participate in building elevation programs. 8) Encourage business owners to participate in acquisition and relocation programs for areas within floodways, 9) Require an annual inspection of approved flood-proofed buildings to ensure that (a) all flood-proofing components will operate properly under flood conditions and (b) all responsible personnel are aware of their duties and responsibilities as described in their building's Flood Emergency Operation Plan and Inspection & Maintenance Plan, ECON-g. Landslides andErosion I) Increase efforts to reduce landslides and erosion in existing and future development by improving appropriate code enforcement and use of applicable standards, such as those appearing in the California Building Code, California Geological Survey Spec;ial Report 117 - Guidelines for Evaluating and Mitigating Seismic" Hazards in California17, American Society of Civil Engineers (ASCE) . 16 See http://www.seismic.ca.gov/pub/CSSC 2002-03 Natural%20Gas%20Safety,pdf, Note: any values that are installed may need to have both excess flow and seismic triggers ("hybrid" valves), 17 See http://gmw.consrv.ca.gov/shmp/SHMPsp 117 .asp. Taming Natural Disasters 21 March 17,2005 report Recommended Procedures for Implementation of DMG Special Publication . 117: Guidelines for Analyzing and Mitigating Landslide Hazards in CaliforniaJ8, and the California Board for Geologists and Geophysicists Guidelines for Engineering Geologic Reports19, Such standards should cover excavation, fill placement, cut-fill transitions, slope stability, drainage and erosion control, slope setbacks, expansive soils, collapsible soils, environmental issues, geological and geotechnical investigations, grading plans and specifications, protection of adjacent properties, and review and permit issuance, 2) Increase efforts to reduce landslides and erosion in existing and future development through continuing education of design professionals on mitigation strategies, ECON-h. Construction 1) Continue to require that all new commercial and industrial buildings be , constructed in compliance with structural requirements of the most recently adopted version of the California Building Code. 2) Conduct appropriate employee training and support continued education to ensure enforcement of construction standards, 3) Recognize that many strategies that increase earthquake resistance also decrease damage in an explosion. In addition, recognize that ventilation systems can be designed to contain airborne biological agents. ECON-i. Building Reoccupancy . 1) Institute an aggressive program similar to San Francisco's Building Occupancy Resumption Program (BORP). This program permits owners of private buildings to hire qualified structural engineers to create building-specific post-disaster inspection plans and allows these engineers to become automatically deputized as City/County inspectors for these buildings in the event of an earthquake or other disaster, 2) Actively notify owners of historic or architecturally significant buildings of the availability of the local BORP-type program and encourage them to participate to ensure that appropriately qualified structural engineers are inspecting their buildings, thus reducing the likelihood that the buildings will be inappropriately evaluated following a disaster. 3) Actively notify owners of educational facility buildings of the availability of the local BORP-type program and encourage them to participate to ensure that appropriately qualified structural" engineers are inspecting their buildings, thus reducing the likelihood that the buildings will be inappropriately evaluated following a disaster. 4) Allow owners to participate in a BORP-type program as described above, but not actively encourage them to do so, 5) Develop and enforce an ordinance for disaster-damaged structures to ensure that damaged buildings are repaired in an appropriate and timely manner, 18 See http://www.scec.org/resources/catalog/LandslideProceduresJune02.pdf. . 19 See http://www.geologY.ca.gov/publications/engineering.pdf. Taming Natural Disasters 22 March 17,2005 . 6) Establish preservation-sensitive measures for the repair and reoccupancy of historically significant structures, including requirements for temporary shoring or stabilization where needed, arrangements for consulting with preservationists, and expedited permit procedures for suitable repair or rebuilding of historically or architecturally valuable structures. . ECON-j. Public Education 1) Provide information to business owners and employees on the availability of interactive hazard maps on ABAG's web site. 2) Develop printed materials, utilize existing materials (such as developed by FEMA and the American Red Cross), conduct workshops, and/or provide outreach encouraging businesses' employees to have family disaster plans that include drop-cover-hold earthquake drills, fire and storm evacuation procedures, and shelter-in-place emergency guidelines. 3) Develop printed materials, conduct workshops, and provide outreach to Bay Area businesses focusing on business continuity planning. 4) Better inform Bay Area business owners of mitigation activities, including elevation of appliances above expected flood levels, use of fire-resistant roofing and defensible space in wildland-utban- interface fire-threatened communities or in areas exposed to high-to-extreme fire threat, structural retrofitting techniques for older buildings, and use of intelligent grading practices through workshops, " publications, and media announcements and events. 5) Sponsor the formation and training of Community Emergency Response Teams (CERT) training through partnerships with local businesses. [Note - these programs go by a variety of names in various cities and areas.] 6) Assist businesses in the development of defensible space through the use of, for example, "tool libraries" for weed abatement tools, roadside collection and/or chipping services (for brush, weeds, andtree branches) in wildland-urban- interface fire-threatened communities or in areas exposed to high-to-extreme fire threat. 7) Make use of the materials developed by others (such as found on ABAG's web site at http://quake,abag,ca.govlbusiness) to increase mitigation activities related to earthquakes, ABAG plans to continue to improve the quality of those materials over time, 8) Develop a "Maintain-a- Drain" campaign, similar to that of the City of Oakland, encouraging businesses and residents to keep storm drains in their/neighborhood free of debris, 9) Encourage the formation of a community-based approach to wildfire education and action through local Fire Safe Councils and the Fire Wise Program, 10) Encourage businesses and laboratories handling hazardous materials or pathogens increase security to a level high enough to create a deterrent to crime and terrorism, including active implementation of "cradle-to-grave" tracking systems, 11) Encourage joint meetings of security and operations personnel at major employers to develop innovative ways for these personnel to work together to increase safety and security. . Taming Natural Disasters 23 March 17, 2005 12) Inform shoreline-property owners of the possible long-term economic threat posed by rising sea levels. 13) Develop and distribute culturally appropriate materials related to disaster mitigation and preparedness, such as those on the http://www,preparenow.org website, " . 5. Government Services (GOVT) Bay Area city and county governments, as well as community services agencies, provide essential services during and immediately following disasters, as well as critical functions during recovery, that need to be resistant to disasters, GOVT-a. Focus on Critical Facilities 1) Assess the vulnerability of critical facilities (such as city halls, fire stations, community service centers, seaports, and airports) to damage in natural disasters and make recominendations for appropriate mitigation, " 2) Retrofit or replace criticaHacilities that are shown to be vulnerable to damage in natural disasters, 3) Clarify to workers in critical facilities and emergency personnel, as well as to elected officials and the public, the extent to which the facilities are expected to perform only at a life safety level (allowing for the safe evacuation of personnel) or are expected to remain functional following an earthquake, 4) Conduct comprehensive programs to identify and mitigate problems with facility contents, architectural components, and equipment that will prevent critical buildings from being functional after major natural disasters. 5) Encourage joint meetings of security and operations personnel at critical facilities to develop innovative ways for these personnel to work together to increase safety and security, 6) Install micro and/or surveillance cameras around critical public assets tied to web- based software, and develop a surveillance protocol to monitor these cameras. 7) Identify and undertake cost-effective retrofit measures on critical facilities (such as moving and redesigning air intake vents and installing blast-resistant features) when these buildings undergo major renovations, 8) Coordinate with the State Division of Safety of Dams to ensure that cities and counties are aware of the time line for the maintenance and inspection of dams whose failure would impact their jurisdiction. 9) As a secondary focus, assess the vulnerability of non-critical facilities to damage in natural disasters based on occupancy and structural type, make " recommendations on priorities for structural improvements or occupancy reductions, and identify potential funding mechanisms. 10) Ensure that government-owned facilities are subject to the same ormore stringent regulations as imposed on privately-owned development. 11) Comply with all applicable building and fire codes, as well as other regulations (such as state requirements for fault, landslide, and liquefaction investigations in particular mapped areas) when constructing or significantly remodeling government-owned facilities, . . Taming Natural Disasters" 24 March 17,2005 . 12) Prior to acquisition of property to be used as a critical facility, conduct a study to ensure the absence of significant hazards, , " . GOVT -b. Maintain and Enhance Local Government's Emergency Response and Recovery Capacitj 1) Establish a framework and process for pre-event planning for post-event recovery that specifies roles, priorities, and responsibilities of various departments within the local government organization, and that outlines a structure and process for policy-making involving elected officials and appointed advisory committees, 2) Prepare a basic Recovery Plan that outlines the major issues and tasks that are likely to be the key elements of community recovery, as well as integrate this planning into response planning, 3) Establish a goal for the resumption of local government services that may vary from function to function, 4) Develop a plan for short-term and intermediate-term sheltering of impacted residents, 5) Periodically assess the need for new or relocated fire or police stations and other emergency facilities, changes in staffing levels, and additional or updated supplies, equipment, technologies, and in-service training classes. 6) Ensure that fire and police department personnel have adequate radios, breathing apparatuses, protective gear, and other equipment to respond to a major disaster. 7) Develop and maintain a system of interoperable communications for first responders from cities, counties, special districts, state, and federal agencies. 8) Harden emergency response communications, including, for example, building redundant capacity into public safety alerting and/or answering points, replacing or hardening microwave and simulcast systems, adding digital encryption for programmable radios, and ensuring a plug-and-play capability for amateur radio. 9) Purchase command vehicles for use as mobile command/EOC vehicles if current vehicles are unsuitable or inadequate. 10) Maintain the local government's emergency operations center in a fully functional state of readiness. 11) Expand or participate in expanding traditional disaster exercises involving city and county emergency personnel to include airport and port personnel, transit and infrastructure providers, hospitals, schools; park districts, "and major employers. 12) Maintain and update as necessary the local government's Standardized Emergency Management System Plan, 13) Continue to participate not only in general mutual-aid agreements, but also in agreements with adjoining jurisdictions for cooperative response to fires, floods, earthquakes, and other disasters, 14) Install an alert and warning system with outdoor sirens, coordinating them, to the extent possible, with those of neighboring jurisdictions, 15) Conduct periodic tests of the alerting and warning system's outdoor sirens no less frequently than once per month, 16) Regulate and enforce the location and design of street-address numbers on buildings and minimize the naming of short streets (that are actually driveways) to single homes. . Taming Natural Disasters 25 March 17,2005 17) Monitor weather during times of high fire risk using, for example, weather stations tied into police and fire dispatch centers, 18) Establish regional protocols on how to respond to the NOAA Monterey weather forecasts, such as the identifying types of closures, limits on work that could cause ignitions, and prepositioning of suppression forces. A multi-agency coordination of response also helps provide unified messages to the public about how they should respond to these periods of increased fire danger. 19) Increase local patrolling during periods of high fire weather. 20) Create and maintain an automated system of rain and flood gauges that is web enabled and publicly accessible, 21) Place remote sensors in strategic locations for early warning of hazmat releases or use of weapons of mass destruction. 22) Investigate the use of phone-based warning systems for selected geographic areas, 23) Review and update, as necessary, procedures pursuant to the State Dam Safety Act for the emergency evacuation of areas located below major water-storage facilities. 24) Develop procedures for the emergency evacuation of areas identified on tsunami evacuation maps as these maps become available, 25) Develop "a business continuity plan that includes back-up storage of vital records, such as essential medical records and financial information, . " GOVT -c. Participate in National, State, Multi-Jurisdictional and Professional Society Efforts to Identify and Mitigate Hazards 1) Promote information sharing among overlapping and neighboring local governments, including cities, counties, and special districts, as well as utilities, 2) Recognize that emergency services is more than the coordination of police and fire response, for it also includes planning activities with providers of water, food, energy, transportation, financial, information, and public health services, 3) Recognize that a multi-agency approach is needed to mitigate flooding by having flood control districts, cities, counties, and utilities meet at least annually to jointly discuss their a capital improvement programs for most effectively reducing the threat of storm-induced flooding, 4) As new flood-control projects are completed, request that FEMA revise its flood- insurance rate maps and digital geographic information system data to reflect flood risks as accurately as possible. 5) Participate in FEMA's National Flood Insurance Program, 6) Participate in multi-agency efforts to mitigate fire threat, such as the Hills Emergency Forum (in the east Bay), various FireSafe Council programs, and city- utility task forces. 7) Work with major employers and agencies that handle hazardous materials to coordinate mitigation efforts for the possible release of these materials due to a natural disaster such as an earthquake, flood, fire, or landslide. 8) Encourage staff to participate in efforts by professional organizations to mitigate earthquake and landslide disaster losses, such as the efforts of the Northern California Chapter of the Earthquake Engineering Research Institute, the East Bay-Peninsula Chapter of the International Code Council, the Structural Taming Natural Disasters 26 March 17,2005 . . . "'" . Engineers Association of Northern California, and the American Society of Grading Officials. 9) Conduct and/or promote attendance at local or regional hazard conferences and workshops for elected officials to educate the officials on the critical need for programs in mitigating earthquake, wildfire, flood, and landslide hazards, 10) Cooperate with researchers working on government-funded projects to refine information on hazards, for example, by expediting the permit and approval process for installation of seismic arrays, gravity survey instruments, borehole drilling, 'fault trenching, landslide mapping, flood modeling, and/or damage data collection, 6. Education (EDUC) . Safe and disaster-resistant school, education, and childcare-related facilities are critical to the safety of our children, as well as to the quality of life of Bay Area families, EDUC':a. Focus on Critical Facilities I) Assess the vulnerability of critical education facilities to damage in natural disasters and make recommendations for appropriate mitigation, 2) Retrofit or replace critical education facilities that are shown to be vulnerable to damage in natural disasters, 3) Conduct comprehensive programs to identify and mitigate problems with facility contents, architectural components, and equipment that will prevent critical buildings from being functional after major disasters, 4) As a secondary focus, assess the vulnerability of non-critical educational facilities to damage in natural disasters based on occupancy and structural type, make recommendations on priorities for structural improvements or occupancy reductions, and identify potential funding mechanisms, .5) Participate in or facilitate adoption of a program to formalize arrangements' with structural engineers to report to the district, assess damage, and determine if the buildings can be reoccupied, The program should be similar to San Francisco's Building Occupancy Resumption Program (BORP) that permits owners of buildings to hire qualified structural engineers to create building-specific post- disaster inspection plans and allows these engineers to become automatically deputized as inspectors for these buildings in the event of an earthquake or other disaster. Unlike the buildings of most special districts, however, these plans should be developed with the review and guidance of the Division of the State Architect because this agency has the authority and responsibility for the structural integrity of these structures. . EDUC-b. Use of Educational Facilities as Emergency Shelters I) Work cooperatively with the American Red Cross and others to set up memoranda of understanding for use of education facilities as emergency shelters following disasters, 2) Work cooperatively to ensure that school district personnel and relevant staff understand and are trained that being designated by the American Red Cross or others as a potential emergency shelter does not mean that the school has had a Taming Natural Disasters 27 March 17,2005 hazar~ or structural evaluation to ensure that it can be used as a shelter following . any specific disaster. " "3) Wor~ cooperatively to ensure that school district personnel understand and are trained that they are designated as disaster service workers and must remain at the school "until released, EDUC-c. Use of Schools as Conduits for Information to Families About Emergencies 1) Work on and/or support efforts by schools, local governments, and other agencies to utilize their unique ability to reach families through educational materials on hazards, mitigation, and preparedness, particularly after disasters and at the beginning of the school year. These efforts will not only make the entire community more disaster-resistant, but speed the return of schools from use as shelters to use as teaching facilities, 2) Work on and/or support joint efforts of schools and fire jurisdictions to develop plans for evacuation or sheltering in place of school children during periods of high fire danger, thereby recognizing that overloading of streets near schools by parents attempting to pick up their children during these periods can restrict access by fire personnel and equipment. 3) Offer the 20-hour basic CERT training to teachers and after-school personnel. 4) Offer the 20-hourbasic CERT training to middle school and/or high school students as a part of the basic science or civics curriculum, as an after school club, or as a way to earn public service hours. , 5) Offer the 20-hour basic CERT training course through the Adult School system and/or through the Community College system, . 6) Develop and maintain the capacity for schools to take care of the students for the first 48 hours after a disaster, and notify parents that this capacity exists, 7) Develop and distribute culturally appropriate materials related to disaster mitigation and preparedness, such as those on the http://www,preparenow,org website, 7. Environment (EN VI) Disaster resistance need to further environmental sustainability, reduce pollution, strengthen agriculture resiliency, and avoid hazardous material releases in the Bay Area, ENVI-a. Environmental Sustain ability and Pollution Reduction 1) Continue to enforce State-mandated requirements, such as the California Environmental Quality Act, to ensure that mitigation activities for hazards, such as vegetation clearance programs for fire threat and seismic retrofits, are conducted in a way that reduces environmental degradation such as air quality impacts, noise during construction, and loss Of sensitive habitats and species, while respecting the community value of historic preservation, 2) Encourage regulatory agencies to work collaboratively with safety professionals to develop creative mitigation strategies that effectively balance environmental and safety needs, particularly to meet critical wildfire, flood, and earthquake safety levels. . Taming Natural Disasters 28 \ March 17, 2005 . . 3) Continue to enforce and/or comply with State-mandated requirements, such as the California Environmental Quality Act and environmental regulations to ensure that urban development is conducted in a way to minimize air pollution, For example, air pollution levels can lead to global warming, and then to drought, increased vegetation susceptibility to disease (such as pine bark beetle infestations), and associated increased fire hazard. 4) Develop and implement a comprehensive program for watershed maintenance, optimizing forest health with water yield to balance water supply, flooding, fire, and erosion concerns, 5) Balance the need for the smooth flow of storm waters versus the need to maintain wildlife habitat by developing and implementing a comprehensive Streambed Vegetation Management Plan that ensures the efficacy of flood control efforts and maintains the viability of living rivers, 6) Stay informed of emerging scientific information on the subject of rising sea levels, especially on additional actions that local governments can take to mitigate this hazard, < 7) Monitor the science associated with global warming to be able to act promptly when data become available to warrant special design and engineering of government-owned facilities located in low-lying areas, such as wastewater treatment plants, ports, and airports, 8) Comply with applicable performance standards of any National Pollutant Discharge Elimination System municipal stormwater permit that seeks to manage increases in stormwater run-off flows from new development and redevelopment construction projects, " 9) Enforce and/or comply with the grading, erosion, and sedimentation requirements by prohibiting the discharge of concentrated stormwater flows by other than approved methods that seek to minimize associated pollution, 10) Explore ways to require that hazardous materials stored in the flood zone be elevated or otherwise protected from flood waters, 11) Enforce and/or comply with the hazardous materials requirements of the State of California Certified Unified Program Agency (CUP A), 12) Provide information on hazardous waste disposal and/or drop offlocations. 13) Develop and implement a program to control invasive and exotic species that contribute to fire and flooding hazards (such as eucalyptus, cattails, and cordgrass), , 14) Enforce provisions under creek protection, stormwater management, and discharge control ordinances designed to keep watercourses free of obstructions and to protect drainage facilities to conform with the Regional Water Quality Control Board's Best Management Practices, ENVI-b. Agricultural and Aquaculture Resilience 1) Maintain a variety of crops in rural areas of the region to increa.se agricultural diversity and crop resiliency, , 2) Promote and maintain the public-private partnerships dedicated to preventing the introduction of agricultural pests into regionally-significant crops, such as the glassy-winged sharpshooter into vineyards, . Taming Natural Disasters" 29 March 17, 2005 3) Remove septic tanks and other sources of contamination adjacentto economically-significant aquacultural and agricultural resources, 4) Encourage livestock operators to develop an early-warning system to detect animals with communicable diseases (due to natural causes or bioterrorism), . 8. Land Use (LAND) Land use change needs to be accompanied by a respect for hazardous areas and facilities, as well as recognize the interconnected nature of the Bay Area. LAND-a. Earthquake Hazard Studiesfor New Developments 1) Enforce and/or comply with the State-mandated requirement that site-,specific geologic reports be prepared for development proposals within Alquist-Priolo Earthquake Fault Zones, and restrict the placement of structures for human occupancy, (This Act is intended to deal with the specific hazard of active faults that extend to the earth ' s surface, creating a surface rupture hazard,) 2) Require preparation of site-specific geologic or geotechnical reports for development and redevelopment proposals in areas subject to earthquake-induced landslides or liquefaction as mandated by the State Seismic Hazard Mapping Act in selected portions of the Bay Area when~ these maps have been completed, and condition project approval on the incorporation of necessary mitigation measures related to site remediation, structure and foundation design, and/or avoidance. 3) Recognizing that some faults may be a hazard for surface rupture, even though they do not meet the strict criteria imposed by the Alquist-Priolo Earthquake Fault . Zoning Act, identify and require geologic reports in areas adjacent to locally- significant faults, 4) Recognizing that the California Geological Survey has not completed earthquake- induced landslide and liquefaction mapping for much of the Bay Area, identify and require geologic reports in areas mapped by others as having significant liquefaction or landslide hazards, 5) Support and/or facilitate efforts by the California Geological Survey to complete the earthquake-induced landslide and liquefaction mapping for the Bay Area. 6) Require that local government reviews of geologic and engineering studies are conducted by appropriately trained and credentialed personnel. LAND-b. Wildfire and Structural Fires 1) Review development proposals to ensure that they incorporate required and appropriate fire-mitigation measures, including adequate provisions for occupant evacuation and access by emergency response personnel and equipment. 2) Develop a clear legislative and regulatory framework at both the state and local levels to manage the wildland-urban-interface consistent with Fire Wise and sustainable community principles. LAND-c. Flooding 1) Establish and enforce requirements for new development so that site-specific designs and source-control techniques are used to manage peak stormwater runoff flows and impacts from increased runoff volumes, . Taming Natural Disasters 30 March 17, 2005 . 2) Incorporate FEMA guidelines and suggested activities into local government plans and procedures for managing flood hazards, 3) Provide an institutional mechanism to ensure that development proposals adjacent to floodways and in floodplains are referred to flood control districts and wastewater agencies for review and comment (consistent with the NPDES program), 4) Establish and enforce regulations concerning new construction (and major improvements to existing structures) within flood zones in order to be in compliance with federal requirements and, thus, be a participant in the Community Rating System of the National Flood Insurance Program, 2) 3) 4) . 5) LAND-e. 1) 2) LAND-d. Landslides and Erosion 1) Establish and enforce provisions (under subdivision ordinances or other means) that geotechnical and soil-hazard investigations be conducted and filed to prevent grading from creating unstable slopes, and that any necessary corrective actions be taken prior "to development approval. Require that local government reviews of these investigations are conducted by appropriately trained and credentialed personnel. Establish and enforce grading, erosion, and sedimentation ordinances by requiring, under certain conditions, grading permits and plans to control erosion and sedimentation prior to development approval. Establish and enforce provisions under the creek protection, storm water " management, and discharge control ordinances designed to control erosion and sedimentation. Establish requirements in zoning ordinances to address hillside development constraints, especially in areas of existing landslides, Hillside - Multi-Hazard Establish a buffer zone between residential properties and landslide or wildfire hazard areas. Discourage, add additional mitigation strategies, or prevent construction on slopes greater than a set percentage, such as 15%, due to landslide or wildfire hazard concerns. LAND-f. Smart Growth to Revitalize Urban Areas and Promote Sustain ability 1) Prioritize retrofit of infrastructure that serves urban areas over constructing new infrastructure to serve outlying areas, 2) Work to retrofit homes in older areas to provide safe housing close to job centers, 3) Work to retrofit older downtown areas to protect architectural diversity and promote disaster-resistance. 4) Protect as open space areas susceptible to extreme hazards, 5) Provide new buffers and preserve existing buffers between development and existing users oflarge amounts of hazardous materials, such as major industry, due to the potential for catastrophic releases due to an earthquake or terrorism, (Flooding might also result in release or spread of these materials, however it is unlikely,) . Taming Natural Disasters 31 March 17, 2005 APPENDIX A The Planning Process . Introduction Development ofthis multi-jurisdictional plan addressing the diverse concerns and challenges of a region of seven million people has required a planning process that employs a variety of forums and techniques. These are described in the sections that follow, Development of the plan began with a discussion of the overall scope of work and selection of the key hazards to be addressed and our vulnerabilities, The process then proceeded to a framing of policy goals and finally to a selection of specific mitigation strategies to address the hazards and risks, This process was familiar to the local governments of the Bay Area, All of the local governments involved in the development of this plan have plans, policies, and/or programs that predate this plan because of: . the vulnerability of the Bay Area to natural hazards; . our experiences with past disasters; . the requirements of the State of California for Safety (and, earlier, Seismic Safety) Elements in city and county General Plans since the early 1970s; . California Environmental Quality Act (CEQA) requirements (particularly since 1988); . the need to develop sophisticated risk and mitigation information on infrastructure as transportation providers and utilities have worked to gain public acceptance for major . programs to strengthen the disaster resistance of thes~ facilities; and . ABAG's long history of developing hazard maps and risk assessment information. Our effort has focused on building on these pre-existing efforts and identifying gaps that may lead to disaster vulnerabilities in order to work on ways to address risks through mitigation. Initial Workshops with Local Government Staff to Identify Hazards, Concerns, and Needs From June 1 through August 5, 2004, ABAG staff held a series of nine 3-hour forums, one in each of the nine counties in the San Francisco Bay Area. Email invitations were sent to city and town managers, county administrators, planning directors, public works directors, building officials, fire chiefs, and emergency managers of cities and counties, Separate invitations were emailed and faxed to all of the city and county elected officials on ABAG standing committees and the ABAG Executive Board. County emergency managers forwarded the information to their contacts in special districts, ABAG worked with staff of the Metropolitan Transportation Commission (MTC) so that transit districts would be notified. A total of 260 staff (and two elected officials) from counties, cities, and special districts attended these workshops, At these meetings, ABAG staff spent approximately two hours discussing the scope of work in developing this plan, demonstrating proposed Internet-based hazard mapping capabilities, discussing the types of risk assessments to be performed, and talking about the general format of the plan. . Taming Natural Disasters , 32 March 17,2005 . An hour during each of these three.:.hour workshops was spe~t discussing hazards to be addressed, hazard mapping, risk assessment, and hazard mitigation strategies. Each person was individually queried regarding their views on the process, their concerns, and what they viewed as the most important outcomes of this process, This hour-long discussion became more focused and interactive in the later workshops than in the earlier ones, However, the issues identified in later workshops were brought to the attention of the attendees of the earlier workshops through email to ensure adequate feedback. The immediate result of these workshops and follow-up emails was the "fmalization" of the key hazards to be addressed, as well as the draft list of 53 hazard maps to be put into ABAG's on-line geographic information system (GIS), In addition to the more general issues, some specific concerns were also addressed, For example, several attendees stressed the need to provide adequate explanatory materials on the hazard maps being developed for non-technical local government staff members, elected officials, and the general public. They had discovered this problem while showing hazard maps at past city council meetings, This discussion resulted in a redesign of the map layouts, ABA G outlined the existing technical reports and studies that have been used as. a basis for the hazard assessment, exposure, and vulnerability portion of this plan and encouraged feedback to ensure that they are the most comprehensive and technically accurate reports and studies available, These specific reports are discussed and referenced in the applicable plan sections, . . ABAG staff also outlined the pros and cons of organizing the mitigation section of the plan based on the traditional categories of hazards versus organizing this section along functional areas. The consensus of these groups was to organize the plan by functional area (health, housing, education, etc. - not fire, earthquake, flood, etc,), The advantages of this organization scheme were viewed as: . stressing opportunities for multi-hazard mitigation; . focusing on the positive aspects of what we want to have (housing and a functional transportation system, for example), rather than what we do not want (a fire or earthquake disaster, for example);' , . providing stronger opportunities to integrate hazard mitigation into other areas of planning, such as transportation, housing, and land use, rather than isolating it as an offshoot of emergency response; and . creating ways to have a large and diverse region containing numerous cities, counties, and special districts identify what we can do together, Review and Incorporation of Existing Information ABAG directed local governments to feview the plans and studies described in the Introduction to this appendix and provide ABAG with relevant information, In addition, ABAG itself examined the existing technical information available on the various hazards affecting the Bay Area and their impacts. ABAG is very familiar with this information because of the extensive amount of research it has conducted with funding from the U, S, Geological Survey, the National Science Foundation, and others, However, many of the relevant flooding, landsliding, and wildfire data and reports were provided to ABAG following extensive outreach to state and . federal agencies, as well as to relevant professional organizations, The result was an extensive Taming Natural Disasters 33 March 17, 2005 library of publications, including plans, studies, reports, and technical data, The most relevant are referenced as footnotes or are summarized briefly in Appendix C. Additional reports are more relevant to specific local government issues and are cited in specific local annexes to this overall plan, . Mitigation Policy Outline and Review Having reviewed the discussions at eight of the nine county forums, as well asthe draft plans of Berkeley, Napa, and the State of California, ABAG staff developed a draft overall goal and eight basic commitments for the plan, These general policies were presented for comment at the July 15, "2004 meeting of ABAG's Executive Board. This Board is the principal policy Board for ABAG. It meets once every two months and is composed of County Supervisors and City Council members representing all of the counties in the Bay Area and the cities in those counties, Meeting agendas are publicly announced as required by California's Brown Act and are mailed to hundreds of individuals who have requested to receive the agendas, The meetings of this Board are open to the public, While there was considerable discussion on the need to address hazard issues, no substantive changes in the goal or commitments were made. Next, the goal and policies were presented to ABAG's Regional Planning Committee (RPC) at the September 1,2004 meeting, RPC is the planning policy committee for ABAG, It meets once every two months and is composed of County Supervisors and City Council members representing all of the counties in the Bay Area and the cities in those counties, as well as environmental, economic, and equity groups, Meeting agendas are publicly announced as . required by California's Brown Act and are mailed to hundreds of individuals who have requested to receive the agendas, The meeting was also open to the public and the public had the opportunity to comment. The group discussed the general commitments, recommended a change in the "way the commitments were ordered (to their current order), and supported the commitments in concept. Use of Two ABAG Special-Issue Review Committees Two committees were used to develop the sections of the plan that address housing safety, business risk, and lifeline issues. The ABAG Earthquake and Hazards Outreach Committee was tasked to help with development and review of the mitigation strategies related to housing and business. The committee is chaired by an elected official and has members consisting of city staffs, private construction contractors, California Geological Survey and U.S, Geological Survey scientists, and structural engineers , (including both private-sector engineers and an engineer from the State Seismic Safety Commission staff), At the meetings of this Outreach Committee on June 30, 2004 and September 15,2004, continued integration with the International Code Council (ICC) Joint East Bay-Peninsula Chapter effort to develop housing retrofit standards was discussed, and supported.' ABAG's proposed new effort to coordinate with the American Association of Grading Officials on landslide mitigation was also presented and discussed. Concerns for soft-story apartments were . Taming Natural Disasters 34 March 17,2005 . . discussed and the need for a full-day charrette and policy forum was expressed, ABAG has been working with, and was encouraged to continue to work with, Lakeshore Ave. businesses in Oakland in an effort to identify ways to improve the resiliency of downtown retail businesses, The second committee, the ABAG Hazards Transportation and Lifelines Review Committee, is also chaired by an elected official and has members from city and county staffs, local transit districts, the California Highway Patrol (CHP), Caltrans District 4, local water districts, PG&E, SBC Communications, the American Red Cross-Bay Area, the U.S, Geological Survey, and the Coastal Region office of the California Office of Emergency Services, This group met on July 26,2004 to discuss the development of this plan and to brainstorm potential mitigation strategies, particularly those related to transportation, water supply, sewage, power, and communications systems, The ways these issues interrelate to health, education, and the environment were also discussed, A particular effort was made to develop additional, and improve existing, mitigation strategies related to flooding hazards, Additional comments and ideas were obtained from this committee at its meeting of September 16,2004, Creation of First Draft of Mitigation Strategies ABAG staff drafted an outline of mitigation strategies and circulated the strategies to all participating local government agencies and various professional organizations during September 2004, The strategies were created based on comments and discussions of the groups listed above, as well as from a review of the State Hazard Mitigation Plan and draft (at the time) Local Hazard Mitigation Plans of Berkeley, Napa ( City), Napa County, and Oakland, Interaction with Professional Groups From late July 2004 through November 2004, ABAG staff actively approached various professional organizations and advocacy groups to obtain feedback on the preliminary commitment policy statements and mitigation strategies in the plan, These meetings and workshops were invaluable, in part because they generated active involvement of staff members of consulting firms, construction contractors, universities, and non-governmental agencies. Formal and informal presentations were given to meetings or workshops of: . the Earthquake Engineering Research Institute Northern California Chapter (EERI-NC) " Governmen~ Committee (July 26,2004), . the ICC East Bay/Peninsula Chapter (July 21,2004), . the American Society of Grading Officials (July 21,2004), and . the FireSafe Councils (August 25,2004), At these meetings, ABAG staff stressed the need for feedback and assistance in drafting mitigation strategies that could be incorporated into the general outline of the eight key. commitments of this multi-jurisdictional plan. The EERI-NC meeting resulted in a revised draft of the mitigation strategies related to various types of privately-owned and local governinent buildings vulnerable to earthquake damage. The ICC meeting resulted in an outline of the mitigation strategies related to vulnerability of single-family homes. The ASGO meeting resulted in strategies related to mitigation oflandslides, Finally, the FireSafe Councils meeting resulted . the development of the range of strategies related to fire. Taming Natural Disasters 35 March 17, 2005 . Additional outreach to professional organizations occurred in October and November after the first formal plan release on October 6, 2004. (More information on the October 6th event is included in the following section,) These efforts focused on obtaining comments and peer review for the draft strategies and were more outreach than plan development. Presentations were made to the following groups: . the Geotechnical Engineering Earthquake Reconnaissance (GEER) group (October 7, 2004) related to landslide mitigation strategies, . the Earthquake Engineering Research Institute Northern California Chapter(EERI-NC) Lifeline Committee (October 28,2004) related to the Infrastructure area, . San Francisco Community Agencies Responding to Disasters (SF-CARD) (November 4, . 2004) related to the Health area, . the Structural Engineers Association of Northern California (SEAONC) (November 9, 2004), and . the California Preservation Foundation (November 18,2004) related to historic issues under Housing, Economy, and Government, . Initial General Public Outreach The DRAFT Local Hazard Mitigation Plan was distributed at the ABAG General Assembly conference on "Taming Natural Disasters" on October 6,2004. This conference was widely advertised with printed and email fliers sent to 60,000 people representing' local governments, business, social services, engineering, and environmental groups. Comments on additional strategies were solicited at the conference. Conference attendees were encouraged to submit comments, . ABAG used the October 6th conference to encourage the media to help publicize the plan and posted a request for comments pn our web site to collect comments from the public, Additional press outreach occurred before October 17, 2004, the 15th anniversary of the Lorna Prieta earthquake, including an article in the San Jose Mercury News, the largest circulation newspaper in the region, We encouraged the public to mail in or em<iil suggestions, Based on the comments received, the DRAFT Local Hazard Mitigation Plan was revised, All of the comments were addressed, Most were incorporated directly in the plan, People who suggested changes that were not incOlporated into the plan were sent replies explaining why the changes were not made, Largely the changes that were not made would have added duplication or would haveput the plan's focus oil emergency response, rather than on mitigation, The revised Local Hazard Mitigation Plan was forwarded to FEMA Region IX and the California Office of Emergency Services on October 27,2004, Focused Issue Workshops and Additional Outreach and Review Based on the comments received on the Draft Local Hazard Mitigation Plan distributed at the October General Assembly on "Taming Natural Disasters," four issues were identified that- would benefit from immediate further work - health and disasters, education and schools, . Taming Natural Disasters 36 March] 7, 2005 . . . historic structures, and soft-story multi-family residential buildings, ABAG held focused workshops were held on each of these issues: . Health and Disasters on December 14,2004 - attended by 8 people (including local government public health experts and non-profits), . Education and schools on December 16, 2004 - attended by 22 people (largely school district employees), and . Soft-Story Residential January 27, 2005 - attended by 45 people (including private contractors, architects, and engineers as well as local government building officials, planners, and elected officials), ABAG staff used an existing forum organized by the City and County of San Francisco on historic buildings attended by approximately 20 people on January 12, 2005 to gain insight on how to modify the plan rather than holding the meeting at ABAG, Comments received from OES, FEMA, professional organization outreach in late October and November, and the first two of these focused workshops were incorporated into another version of this Local Hazard Mitigation Plan. These revisions were provided to. cities, counties, and special districts for a fmal round of comment in early January 2005, Again, all of the comments received were reviewed, Again, most suggestions were incorporated directly in the plan, Again, people who suggested that changes be made that were not incorporated into the plan were sent replies explaining why the changes were not made. Again, almost all suggested changes that were not incorporated were not made because they would have added duplication or made the plan's focus on emergency response, rather than on mitigation, All changes to the mitigation portion of this plan were finalized on January 28,2005, A Note on General Public Participation and Outreach While every effort has been made to make this entire process open and accessible for public partiCipation, the general low level of interest and knowledge of hazards and mitigation by a many members of the public makes outreach more difficult than for other issues, such as traffic, education, or crime, Thus, an extensive effort was made to supplement typical outreach efforts with extensive interaction with "publics" that, by defmition, are more interested in this process - existing ABAG committees, local governments, and professional organizations, This conclusion does not mean that the public did not examine the plan, For example, the "home page" for the "web site" set up for this effort, http://quake.abag.ca,gov/mitigation, received 2,870 "hits" from October-December 2004, In addition, the plan was developed by focusing outreach both on each hazard, and on each commitment (orfunctional area), While outreach to neighboring local governments might normally be appropriate in the development of a plan such as this, because the area covered by this plan is so large, the logical neighboring entity is the State of California. Staff members of the State Seismic Safety Commission, California Geological Survey, California Department of Forestry, and Coastal Regional Office of Emergency Services were all involved in the development of this plan, Some additional outreach with reclamation districts that own levees in the delta areas will be brought into future workshops held by the ABAG Hazards Transportation and Lifelines Review Committee. Taming Natural Disasters 37 March 17,2005 Additional Information on the Local Planning Process, Public Participation, and Outreach In addition to the information provided in this section, many cities, counties, and special districts held additional meetings and workshops as part of the process needed to identify their specific hazards, risks, and appropriate mitigation strategies. At a minimum, the mitigation strategies were reviewed at an open meeting of the organization's Councilor Board. For more information on each jurisdiction's planning process, see the specific annexes prepared by that local government. Finally, the contributions of each local governnient to the development of this overall plan are detailed in Appendix E. The tables in this appendix specify which local governments attended which ABAG forum or workshop, those that provided written or oral comments on various aspects ofthe overall plan (including providing information on critical government facilities), and the name and contact informationJor those individuals who worked directly on this effort. While Appendix E is not on ABAG's web site, it has been forwarded to State OES and FEMA. This Local Hazard Mitigation Plan, as well as the ABAG Annex to the Plan, were adopted at the public meeting of ABAG's Executive Board on March 17,2005. Taming Natural Disasters 38 March 17, 2005 . . . . ^', . . - APPENDIX B The Plan Maintenance and Update Process Background ABAG received funding for the preparation of this multi-jurisdictional plan from the California Governor's Office of Emergency Services (OES) through the Federal Emergency Management Agency (FEMA) Pre-Disaster Mitigation Grant Competitive (PDM-C) program in mid-April 2004. While cities and counties must complete the initial plan by May 1,2005 to be eligible for the 05 PDM-C program,.the ABAG funding is for a two-year project. Thus, this initial Local Hazard Mitigation Plan for the San Francisco Bay Area must be viewed in this unique context. Preparation Schedule for the "Interim" and "Comprehensive" Plan Our goal is to have an "interim" plan developed, adopted by many local governments, and approved by OES and FEMA by March 17,2005. This "interim" plan will meet all of the minimum requirements of a Local Hazard Mitigation Plan. However, it will be missing several plan pieces that are in the regulations defming the plan contents with the language that the plan "should" contain versus the plan "shall" contain these items. These pieces are typically related to loss estimation and the clear tie between risk and mitigation impacts. Our goal is to have a "comprehensive" plan by April 1, 2006 near the end of the 24-month grant. This complete plan will include much more extensive loss estimation data, clear ties between risk assessment data and mitigation strategies, and additional information on the mitigation strategies, including criteria for measuring progress toward the goal of disaster resistance. Integration into Existing Planning Mechanisms Typically, cities and counties have three major mechanisms for integrating the programs and policies identified in this plan: the Safety Element of their local General Plan, the requirements for project review of the California Environmental Quality Act (CEQA), and on-going capital improvement programs. The components of some of these other programs are identified as "Existing Programs" in the Annex of each participating local government. In addition, the recommendation of this overall plan is for local governments to adopt the specific mitigation strategies identified as an "Implementation Appendix" of their Safety Element. The situation for special districts and other governmental agencies is slightly different. However, the recommendation of this overall plan is to identify a variety of funding sources and implementation mechanisms for the higher priority mitigation strategies identified in each local government's annex. Future Updates of This Plan ABAG will continue to update this plan over time. The plan will be updated at least every five years, as required by DMA 2000. However, it will be updated more frequently as time and money allow. ABAG's Planning Department will take the lead in updating hazard mapping and Taming Natural Disasters 39 March 17, 2005 risk information, while participating local governments will take the lead in developing and updating mitigation goals and strategies. . For example, ABAG will continue to update its geographic information system based on new information from state and federal agencies, as well as from research projects conducted by ABAG and others. The lead in this effort at ABAG will be the Planning Department, specifically the Earthquake and Hazards Program. When an update occurs, participating local governments will be notified of the planned update and encouraged to provide comments. If changes are significant (that is, involve more than minor changes to, for example, the hazard mapping), all participating local governments will be involved in any needed updates in mitigation strategies and all will be asked to submit another resolution approving the plan. In addition, public participation will be encouraged at specific issue-oriented workshops and forums as time and funding allow. As at the numerous workshops and forums held during the development of this initial plan, a wide variety of participation will be encouraged, including: . local and state government staff and elected officials, . private engineers, construction contractors, financial experts, and business owners, . professional organizations, . university professors, and . nonprofits. If ABAG is unwilling or unable to act as the lead agency in the multi-jurisdictional effort, . participating local governments will contact each County's Office of Emergency Services. Counties should then work together to identify another regional forum for developing a multi- jurisdictional plan. Unlike in other metropolitan areas of the country, the Bay Area has no single dominant city or county. Many special districts, including BART, MTC, AC Transit, and the East Bay Regional Park District also have multi-county service areas. Thus, although counties could be used as lead agencies in updating the plan, this option is not as appropriate as in other areas of the country. . Taming Natural Disasters 40 March 17, 2005 . . . APPENDIX C Natural Hazard Risk Assessment What Makes a Disaster? A disaster is a natural or man-made emergency whose response needs exceed available resources. Thus, disasters are not just emergencies that make the national news! There were 4,215 traffic-related fatalities in California in 2003, yet this was not called a "disaster.20" The number of homicides in California in 2003 was roughly half as large, with 2,402 deaths.21 Again, homicides aren't disasters - unless committed in mass as an act of terrorism. For comparison, all of the deaths associated with the September 11,2001 attacks totaled 2,99222. In addition, the attacks caused billions of direct and indirect economic losses. Traffic-Related Fatalities in 2003 Alameda-114 Contra Costa - 70 Marin - 13 Napa - 20 San Francisco - 52 San Mateo - 36 Santa Clara - 91 Solano - 56 Sonoma - 57 TOTAL = 509 in the Bay Area Homicides in 2003 Alameda - 139 Contra Costa - 74 Marin - 0 Napa - 2 San Francisco - 69 San Mateo - 20 Santa Clara - 48 Solano - 20 Sonoma-12 TOTAL = 384 in the Bay Area. Deaths Associated with 9/11 2,749 deaths associated with the World Trade Center 184 deaths in the Pentagon tragedy 40 deaths when a hijacked jet crashed in Pennsylvania. 19 suicides by hijackers TOTAL = 2,992 A single homicide is a crime, and an attack with political intent is terrorism. But both. may not be a disaster. 20 Source - August 2004. National Highway Traffic Safety Administration. 2003 Annual Assessment of Motor Vehicle Crashes (based on Fatality Analysis Reporting System - F ARS): National Highway Traffic Safety Administration. . Published at htto://www-fars.nhtsa.dot.gov/finalreport.cfm?vear=2003&stateid =6&title =States&title2=Fatalities and Fatality Rates&SpeciaIRpt=quervl countv&SpecialRpt Ivl=2 21 Source - July 2004. California Department of Justice Criminal Justice Statistics Center. Crime in California, 2003 Advance Release: Attorney General's Office. Published at htto:! lag .ca.gov I ci sc/publicationsl advrelease/ ad/ ad03/ ad03. pdf 22 Source - 2004. National Commission on Terrorist Attacks Upon the United States (9-11 Commission). Final Report of the National Commission on Terrorist Attacks Upon the United States, Official Government Edition. (Ch. 9, Footnote 188.) Published at http://www.gpoaccess.gov/911/ Taming Natural Disasters 41 March 17, 2005 On the other hand, the San Simeon earthquake of December 2003 that resulted in only 2 fatalities, but caused hundreds of millions in property losses, was a disaster23. As stated above, disaster professionals define a disaster as a natural or man-made emergency whose response needs exceed available resources. When local government resources are exceeded, the California Governor's Office of Emergency Services (State OES) is contacted and the Governor is requested to declare a State Disaster. When State resources are exceeded, State OES contacts the U.S. Department of Homeland Security's Federal Emergency Management Agency (FEMA) and the President is requested to declare a National Disaster. This Presidential Declaration triggers funding resources for the public, the state, and local governments to use for clean-up, repair, recovery, and mitigation. . What Are Our Natural Hazards? The focus of this effort is on natural hazards, that is, natural occurrences that can pose a risk of injury, loss oflife, or damage to property. The nine most significant of these affecting the Bay Area, based on our past history, as well as on the State Hazard Mitigation Plan, are related to: . earthquakes (surface faulting, ground shaking, liquefaction, landslides, and tsunamis), or . weather (flooding, landslides, wildfires, and drought). Other hazards relate to man-made conditions, including releases of hazardous materials, dam failures, energy shortages, and weapons of mass destruction. These other hazards are only addressed as they relate to earthquake and weather-related hazards. The only one of these additional hazards that is readily mapped and analyzed is dam failure. . Finally, people and the food they eat are subject to disease. These concerns are also not addressed in great detail, except as they relate to earthquake and weather-related hazards. As part of this hazard identification process, ABAG has created a web site with access to 53 hazard maps. These maps are referenced to the "hard copy" maps in this document. However, these maps can be interactively zoomed by address, zip code, city, county, school district, fire jurisdiction, and water district for use in the preparation of local Annexes to this plan. They also are all publicly accessible on the web at http://quake.abag.ca.gov/mitigation/. Why Are We Concerned with Exposure and Probability, Not Just Hazards? If a river overflows its bank in an uninhabited area with no roads and no buildings, it is a flood, but not a flood disaster. If a major earthquake occurs in the desert of southeastern Calif()rnia where no one lives, it is still an earthquake, but not an earthquake disaster. Thus, this hazard mitigation plan is concerned about the location of people, buildings, and infrastructure relative to the hazards of floods, earthquakes, wildfires, and landslides - our hazard 'exposure. 23 Source ~ 2004. FEMA. "President Orders Aid for California Earthquake Recovery." FEMA News Press Release . HQ04-003. Published at htto:llwww.fema.gov/news/newsrelease.fema?id=] 0390 Taming Natural Disasters 42 March 17, 2005 . . Hazards also need to be expressed with some sort of probability. Typically, hazards that cause disasters are not common, or these disasters would have long ago triggered an increase in response capability and hazard mitigation. For example, Bay Area cities and counties have adopted mitigation strategies and building codes that allow moderate earthquakes to occur with minimal damage. Because these hazards cause rare disasters, the probability information on their future occurrence is incomplete or subject to large errors. A complete risk assessment should identify: . the existing land uses, buildings, infrastructure, and critical facilities located in each of these hazard areas (exposure); . a general description of land use and development trends along with associated anticipated changes in exposure; . an estimate of the potential deaths and injuries, property damages (dollar losses), and functional losses (disruption) based on exposure and vulnerability of various types of structures; and .. estimates of the probabilities of these losses over time. The risk assessment ABAG is creating for the Bay Area is incomplete at this time. However, we anticipate that it will become more complete as we work with cities, counties, and special districts to incorporate additional information on critical and vulnerable facilities. ABAG plans to develop additional vulnerability information, as well as additional information on the potential impacts of mitigation strategies on vulnerability, from the fall of 2004 through the spring of 2006. / The following sections focus on.describing the most significant natural hazards affecting the San Francisco Bay Area so that options for mitigation of those hazards can be developed. What Is Hazard Mitigation? There are two ways to deal with disasters. 1. We can incr~ase emergency response capability. Thus, more damage needs to occur for those capabilities to be exceeded. Large incidents become manageable emergencies. 2. Projects can be undertaken to prevent or lessen the impacts of future incidents, and thus reduce the need for larger and larger response capability. Homes can be moved from areas suffering repeated floods. Buildings and infrastructure can be built to reduce expected damage in earthquakes. Wood shakes on homes in woodland areas can be replaced with asphalt shingles or tile. These actions are called "mitigation." More specifically, the Stafford Act defines "mitigation" as "any sustained action taken to reduce or eii'minate the long-term risk to human life and property from hazards.,,24 Thus, as mitigation activities are undertaken, the risks associated with disasters decrease. . 24 Source - 44 CFR Section 201.2 pertaining to Section 322 of the Stafford Act, 42 D.S.C. 5165. Taming Natural Disasters 43 March 17, 2005 Earthquakes Probabilitv of earthquake-related hazards The Bay Area is in the heart of Earthquake Country. The Bay Area is crossed by many active faults. This ma figure shows that major active faults ruJ through or adjacent to all nine Bay Are; counties. . Whilerecent research by the U.S. Geological Survey (USGS) has provide more reliable probability information f{ future Bay Area earthquakes than for any other area of the country (62% of a magnitude 6.7 or larger earthquake), it has a wide error range - from a low of 37% to a high of 87%, or plus or minus 25%25, Probability information for the rupture of individual faults has also been prepared by USGS, as shown on the following table.26 Note that there are major faults in the Bay Area, such as the West Napa fault and the Maacama fault, for which there is insufficient information to produce probability estimates. Location and extent of earthquake-related hazards Earthquakes result in five different hazards that have been mapped in the Bay Area. The following sections describe those hazards, as well as reference the map plates showing the location and extent of the hazard in the Bay Area. Surface Rupture Earthquakes occur in the Bay Area when forces underground cause the faults beneath us to rupture and suddenly slip. If the rupture extends to the surface, we see movement on a fault (surface rupture). Because faults are weaknesses in the rock, earthquakes tend to occur over and over on these same faults. . 25 Source - 2003. USGS Working Group on Earthquake Probabilities. Is a Powerful Earthquake Likely to Strike in the Next 30 Years? - USGS Fact Sheet 039-03 at htto:llgeopubs.wr.usgs.gov/fact-sheet/fs039-03!fs039-03.odf and Earthquake Probabilities in the San Francisco Bay Region - USGS Open-File Report 03-214 at http://geopubs. wr. USgs.gov/ope.n- file/otD3-2 14/. 26 The probability information provided by the USGS for earthquakes on each fault also applies to the associated earthquake-related hazards (ground shaking, liquefaction, landslides, and, except for faults that do not extend to the surface, fault surface rupture). Tsunamis probabilities are more complicated, however, as noted on page 48 and 49. Taming Natural Disasters . 44 March 17, 2005 . TABLE 1 ~ Probabilities of Selected Earthquake Scenarios Occurring in the Next 30 Years and Slip Rates on Associated Fault Segments [based on USGS Working Group on California Earthquake Probabilities. 2003, except slip rates for last three faulis from Petersen and others, 2002 update] [Scenario maps on ABA G web site are shaded.] . San Andreas Fault Segment (s) % Probability of Characteristic Quake 2002-2031 Calaveras San Gre orio Greenville Mt. Diablo Thrust Maacama Monte Vista - Shannon . WestNa a Taming Natural Disasters 45 March 17, 2005 The California Geological Survey (CGS) publishes maps of the active faults in the Bay Area that . reach the surface as part of its work to implement the requirements of the Alquist-Priolo Earthquake Fault Zone Act. These maps show not only the most comprehensive depiction of fault traces that can rupture the surface, but also the zones in which cities and counties must require special geologic studies to prevent the building of structures intended for human occupancy from being built and in which the surface rupture hazard must be disclosed in real estate transactions. The regional depiction of the location of this hazard is on Plate 1 - Fault Surface Rupture Hazard. In some respects, fault rupture is a relatively minor problem in earthquakes. For example, strong earthquakes can occur when the fault rupture does not extend to the surface, and that fault-related . damage is rare when compared to shaking-related damage. Neither the Lorna Prieta nor the Northridge earthquakes resulted in surface rupture. In addition, the major thrust faults listed in Table 1 have not experienced surface rupture. While the faults shown on Plate 1 only include those faults that have experienced surface rupture, only structures that are directly astride the fault trace that ruptures will be damaged in a future earthquake, not all of the structures in the study zones. That said, the amount of ground displacement can be quite large, particularly when a major strike-slip fault is involved. For example, in a study conducted by ABAG examining the potential impact of this hazard on road closures27, the amount of horizontal displacement on the large strike-slip faults was estimated as 2 - 4 meters, and the amount of vertical displacement was estimated as 0 - 0.4 meters, with actual values sometimes reaching double these values. Maps of fault rupture hazard for individual local governments are on line at http://quake. abag.ca. gov /faults. . Ground Shaking The fault rupture of the ground generates vibrations or waves in the rock that we feel as ground shaking. Larger magnitude earthquakes generally cause a larger area of ground to shake hard, and to shake longer. Thus, one principal factor in determining shaking hazard is the magnitude of expected earthquakes. However, an earthquake shakes harder in one area versus another based not only on the magnitude, but also on other factors, including the distance of the area to the fault source of the earthquake and the type of geologic materials underlying the site, with stronger shaking occurring on softer soils.. Earthquake intensity measures the strength of ground shaking in an individual earthquake at a particular location. ABAG and the U.S. Geological Survey (USGS) have developed several maps to aid in depicting shaking intensity, and thus ground shaking hazard. . ABAG, in conjunction with scientists at USGS, has developed shaking intensity maps for 18 likely future earthquakes, as shown on Plates 2 -19 - ABA G Earthquake Shaking Scenarios. These maps are appropriate for use in disaster exercises and in earthquake disaster planning. . . USGS has also developed several earthquake shaking intensity maps for anticipated future earthquakes. These maps are based on the ground motion models that are used to 27 Source - 1997. Perkins, J., and others. Riding Out Future Quakes - ABAG, 198 pp. See fault rupture discussion on pages 15-19. . Taming Natural Disasters 46 March 17, 2005 . . . generate Shake Maps for large and moderate earthquakes immediately after these earthquakes occur. A comparison of the USGS ShakeMap versus ABAG Earthquake Shaking Scenario map for the North and South Hayward fault scenario has been included. as Plate 20 for information. As can be ~een from this comparison, the ABAG Earthquake Shaking Scenario maps show higher shaking near the fault than the ShakeMaps for the large strike-slip faults that are common in the Bay Area. Estimating ground motions near rupturing faults is an active area of earthquake research. Records of strong ground motions with peak velocities consistent with the ABAG model were obtained from near- fault stations for the recent 2002 Denali and 1999 Chi-Chi earthquakes. Because of our desire to be conservative, ABAG is using the ABAG Earthquake Shaking Scenario maps for this disaster planning effort. As is obvious when examining the explanation on these maps, higher modified Mercalli I intensities translate into higher shaking. The impact of this increased shaking varies. For example, higher shaking translates into higher numbers of landslides, greater areas of liquefaction, and more damaged buildings. More information on this subject is available at http://www.abag.ca.govlbavarea/eqmaps/doc/mmi.html for the modified Mercalli intensity (MMI) scale itself, and at http://www.abag.ca.govlbavarea/eqmaps/doc/1998gs.html for what higher ground shaking means in a way that is mote quantified than the MMI scale itself. This information was developed by ABAG for the U.S. Geological Survey in 199828. . Finally, it is often useful to have a single hazard map containing the shaking hazard information for the Bay Area for long-term risk analysis. USGS cooperated with CGS, the California Seismic Safety Commission (CSSC), and State OES to develop such a "composite" scenario map. There are two principal caveats to use of this map. First, it incorporates probability ( information that has a wide margin of error. As stated earlier, while recent research by USGS has provided more reliable probability information for future Bay Area earthquakes than for any other area of the country (62% of a magnitude 6.7 or larger earthquake), it has a wide error range (from a low of37% to a high of87%, or plus or minus 25%29)! In addition, the December 2003 San Simeon earthquake occurred in an area shown on this map as having less potential for strong shaking than many other areas of coastal California. The second caveat is that the shaking intensity levels are based on the ShakeMap models, and may underestimate the hazard near the Bay Area's large strike-slip faults, as noted above. See Plate 21- Earthquake Shaking Potential for a regional depiction of this hazard map. See http://quake.abag.ca.gov/mapsba.html for more information and local government-specific depictions of these 20 earthquake shaking hazard maps. Liquefaction Ground shaking can lead to liquefaction. When the ground liquefies in an earthquake, sandy or silty materials saturated with water behave like a liquid, causing pipes to leak, roads and airport runways to buckle, and building foundations to be damaged. As with ground shaking, several types of maps aid in depicting this hazard. 28 Source -1998. Perkins, J. The San Francisco Bay Area - On Shaky Ground - Supplement - ABAG, 28 pp. See discussion on meaning of MMI on pages 2-11. Note - this information is also on the web at http://www.abag.ca.gov/bavarea/eqmaos/doc/1998gs.html. . 29 Source - 2003. USGS Working Group on Earthquake Probabilities. Is a Powerful Earthquake Likely to Strike in the Next 30 Years? - USGS Fact Sheet 039-03 atl1tto:l/geopubs.wr.usgs.gov/fact-sheet/f<;039-03/fs039-03.pdf. Taming Natural Disasters 47 March 17, 2005 . Liquefaction susceptibility maps show areas with water-saturated sandy and silty . materials. Plate 22 shows a map of liquefaction susceptibility for the Bay Area published by USGS showing various levels of liquefaction susceptibility. Plate 23 shows the liquefaction susceptible areas as depicted by CGS. Unlike Plate 22, the map groups most of the moderate to very high susceptible areas shown on the USGS map into official seismic hazard map zones where real estate disclosure and hazard analysis are required. Note, however, that this type of map is only available for a portion of the Bay Area. . Liquefaction hazard maps for specific earthquake scenarios show areas where the ground is both susceptible to liquefaction and that are likely to be shaken hard enough in a particular earthquake to trigger liquefaction. These maps are depicted in Plates 24 - 41. ABAG has conducted extensive studies looking at the ways that liquefaction could potentially impact the Bay Area summarized in an ABAG report.30 In general, the potential impacts to infrastructure are more significant than to building structures. See http://quake.abag.ca.gov/liquefac/liquefac.html for more information and local government- specific depictions of these two liquefaction susceptibility and 18 liquefaction hazard maps. Earthquake-Induced Landslides Ground shaking can also lead to ground failure on slopes, or earthquake-induced landslides. While USGS has created several demonstration maps for this type of hazard, the best depiction is shown in Plate 42, the CGS seismic hazard map for earthquake-induced landslides. As with the CGS liquefaction susceptibility map, this map is only available for a portion of the Bay Area. The list of mitigation strategies includes several relating to ways in which local governments can . increase the speed of completion of hazard maps, particularly GOVT -c-l 0, LAND-a-2, LAND-a- 4, and LAND-a-5. ABAG is also working to secure funding for additional studies related to earthquake~induced landslide hazards in the Bay Area. . More detailed maps for individual local governments and additional landslide hazard information . are available on line at http://quake.abag.ca.gov/landslide. Tsunamis Large underwater displacements from maJor earthquake fault ruptures or underwater landslides can lead to ocean waves called tsunamis. 1 Since tsunamis have high velocities, the damage from a particular level of inundation is far greater than with a normal flood event. Tsunamis can result from off-shore earthquakes within the Bay Area, or from distant events. I A large effort is underway to develop tsunami hazard maps for the western coast of the United States. The State of California Governor's Office of Emergency Services (OES) is leading this effort. As of February 2005, a map of a portion of the Bay Area ocean coastline from San Gregorio in San Mateo County to Lincoln Park in San Francisco has been published. The map shows a "worst case" tsunami event for evacuation planning. The map is based on a maximum run-up to a specific contour, in this case, 12.8 meters (42 feet). While no maps of the area south 30 Source - 2001. Perkins, 1. The San Francisco Bay Area - The Real Dirt on Liquefaction - ABAG, 25 pp. See discussion on "What Happens to Our Built Environment" on pages] ] -19. Note - this information is also on the web at hup:! Iquake.abag.ca.gov/liquefac/liquefac.htrnl. 31 Waves in enclosed bodies, such as lakes or Bays, are called seiches. There are no publisheclmaps or hazard . information on seiche hazards in the Bay Area.' . Taming Natural Disasters 48 March 17, 2005 . . . of San Gregorio tothe southern tip of San Mateo County have been published, the coastal bluffs. in the area would tend to confine the inundation area to the beaches. The regional depiction of this hazard is on Plate 43 - Tsunami Evacuation Planning Areas. ABAG has worked with OES and the two affected counties to make the regional map, more detailed maps for individual local governments, and additional tsunami hazard information publicly available at http://quake.abag.ca.gov /tsunami. Maps of the coastline portions of Sonoma and Marin counties are expected by fall 2005. No maps have been published as part of this OES effort for the area within San Francisco Bay, although an ongoing studl2 indicates that if the run-up height is 10 meters at the Golden Gate, it might be half as high when it reaches the East Bay, and only 10% as high (1 meter) by the time it reaches the northern and.southern ends of the Bay. ABAG continues to work with OES and the affected counties and hopes to make additional maps of this type available in the coming months. It is important to understand that, even when the current OES mapping is complete, no probability information is available for the Bay Area tsunami hazard. ABAG and others are working with State OES to encourage more mapping that has an estimate of probability associated with it. OES and the California Geological Survey will be discussing this issue in a meeting tentatively scheduled for the fall of2005. The tsunami hazard map is not even officially called a hazard map, but an evacuation planning map, because it is not based on probabilities. The list of mitigation strategies includes several relating to ways in which local governments can increase the speed of completion of hazard maps, particularly GOVT-h-24 and GOVT-c-IO. Past occurrences of Bay Area earthquake-related disasters The fact that a devastating earthquake occurred in 1906 ~ the San Francisco earthquake - is common knowledge. Larger earthquakes generally affect larger areas; the San Francisco earthquake caused extensive damage in Oakland, San Jose and Santa Rosa. More recently, the 1989 Lorna Prieta earthquake caused extensive damage in the Santa Cruz Mountains, as well as in Oakland and San Francisco tens of miles away. But many moderate to great earthquakes (over magnitude 6.0) have affected the Bay Area; 22 such events have occurred in the last 160 years- for an average of one every seven years. There have been only three earthquake-related natural disasters in the Bay Area since 1950 - the September 3, 2000 Napa earthquake (declared a disaster in only Napa County), the 1989 Loma Prieta earthquake (declared a disaster in Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Solano counties), and the April 1984 Morgan Hill earthquake (declared a disaster in Santa Clara County). In addition, the April 1964 Good Friday Alaskan earthquake triggered mitigation conducted for the tsunami warning in Marin County. See Appendix D and http://quake.abag.ca. gov /mitigation/ disaster-history .htmL Vulnerability of the Bay Area to earthquakes ABAG 'has focused its assessment of Bay Area earthquake vulnerability assessment by conducting several major analyses - three exposure analyses as part of its development of this .' 32 Dengler, L., Borrero, J., Patton, J., 2004. "The Tsunami Hazard in San Francisco Bay" ill Eos Trans. AGU, 85(47), Fall Meet, Suppl., Abstract OS23D-1354. Taming Natural Disasters 49 March 17, 2005 multi-jurisdictional Local Hazard Mitigation Plan (with plans to conduct additional ones when more complete mapping is available), and three as part of earlier efforts. Fault surface rupture hazard and exposure of existing land use- The analysis of the types ofland use and facilities focuses on the California Geological Survey's map of surface fault rupture hazard study zones (Plate 1) described earlier under the Alquist- Priolo Earthquake Fault Zoning Act. These zones are not fault zones, but zones in which studies are required to ensure that no structures intended for human occupancy are placed across active faults. Thus, only a small fraction of the land use areas and infrastructure miles in these zones are actually subject to fault rupture. . Of the 4.36 million acres ofland in the Bay Area, 1.8% is in areas designed as subject to the study requirement of the Alquist-Priolo Earthquake Fault Zoning Act. . 2.2% of the urban land is in one of these areas, versus 1.7% of the non-urban land. . Types of existing urban land uses with the highest percentages in these areas are urban open (3.1%), mixed residential-commercial (2.9%), and residential use (2.3%). . The percentage of urban land located in these areas ranged from a high of over 4% in Alameda and San Mateo counties toa low of 0% in San Francisco. These percentages are based on information in Table 2: Surface Rupture Hazard and Existing (2000) Land Use. See Plate 1 and http://quake.abag.ca.gov/mitigation/pickdbh2.html for more '. specific information for in.dividual counties and cities. . Fault surface rupture hazard and exposure of existing infrastructure- Rather than discuss the percentages of road miles in these areas, it is useful to note the number of road closures in these areas in various earthquake scenarios. See . http://www.abag.ca.gov/bavarea/egmaps/egtrans/result.html and select a specific scenario. For example, of the 1,734 road closures expected in a future North-South Hayward fault earthquake, 520 will be due to surface rupture. (These estimates are an update of the Riding Out Future Quakes report discussed earlier.) Pipelines have different issues, particularly the large water importation aqueducts of the East Bay Municipal Utility District (EBMUD), the Hetch-Hetchy system administered by the Public Utility Commission of the City and County of San Francisco (SF-PDC), and the Santa Clara Valley Water District. These local government agencies have unique issues with each major fault crossing. For example, EBMUD is continuing to work on its fault crossing issues, in spite of major construction projects that have already been completed. Fault surface rupture hazard and exposure of existing critical facilities - . Of the 812 critical health care facilities in the Bay Area, 1.8% are in areas designed as subjectto the study requirement of the Alquist-Priolo Earthquake Fault Zoning Act. . Only 1.1 % of the 2,063 public schools are in these areas. . Of the 3,991 critical facilities owned by cities, counties, and other special districts, 1.5% are in these areas. . Of greater concern than a facility actually being astride,a fault, however, is that the fault rupture will impede access and the functioning of infrastructure service to those facilities. These percentages are based on information in Table 2: Surface Rupture Hazard and Existing (2000) Land Use. See Plate 1 and http://quake.abag.ca.gov/mitigation/pickcrit.html for more specific information for individual counties and cities. . Taming Natural Disasters 50 March 17, 2005 . . . TABLE 2: Surface Rupture Hazard and Existing (2000) land Use In Alquist-Priolo . . Earthquake Fault % of Land in Total Acres Rupture Study Zones Study Zones Total 4,395,975 81,300 1.8% Urban 1,082,285 23,431 2.2% Non-Urban 3,313,690 57,869 1.7% URBAN ONLY: Residential 578,048 ' 13,225 2.3% Mixed R+C 2,345 68 2.9% Commercial! Services 100,396 2,072 2.1% Mixed C+I 12,137 43 0.4% Industrial 66,861 586 0.9% Military 31,409 95 0.3% Infrastructure 146,061 2,793 1.9% Urban Open 145,028 4,547 3.1% URBAN ONLY: Alameda 168,564 7,114 4.2% Contra Costa 192,006 3,475 1.8% Marin 52,784 723 1.4% Napa 34,826 394 1.1% San Francisco 29,187 0 0.0% San Mateo 103,990 4,506 4.3% Santa Clara 199,139 3,356 1.7% Solano 102,317 930 0.9% Sonoma 199,470 2,932 1.5% In Alquist-Priolo , Earthquake Fault % of Miles in Total Miles Rupture Study Zones Study Zones INFRASTRUCTURE: Roads 33,995. 819 2.4% Transit 173 1 0.6% Rail 951 10 1.1% Pipelines 32,022 762 2.4% In Alquist-Priolo Total Earthquake Fault % of Facilities in Number Rupture Study Zones Study Zones CRITICAL FACILITIES: Health Care 812 15 1.8% Schools 2,063 22 1.1% Bridges 4,159 101 2.4% Local Government 3,991 60 1.5% See http://Quake.abaa.ca.aov/mitiaation/pickdbh2.html and http://auake.abaa.ca.Qov/mitiaation/pickcrit.html for more specific information. Taming Natural Disasters 51 March 17,2005 Shaking hazard and exposure of existing land use - Rather than perform this analysis for each of the many earthquake scenarios developed by USGS and ABAG, we have used the shaking potential map (Plate 21) described earlier. . Of the 4.36 million acres ofland in the Bay Area, 8.1% is in the areas with highest shaking potential, while 29.0% is in the next to highest area of shaking potential. . 55.5% of the urban land is in one of these two areas, versus 31.1 % of the non-urban land. . Types of existing urban land uses with the highest percentages in these two areas are mixed commercial-industrial complexes (93.6%), mixed residential-commercial (80.7%), and commercial use (66.4%). . Of the 115,986 acres of urban land in the highest shaking potential category, 47.1% is in residential use. . The percentage of urban land located in the highest two shaking potential areas ranged from a high of over 78% in Alameda, San Francisco, San Mateo, and Santa Clara counties to lows of less than 7% in Napa and Solano counties. These percentages are based on information in Table 3: Shaking Hazard and Existing (2000) Land Use. See Plate 21 and http://quake.abag.ca.gov/mitigation/pickdbh2.html for more specific information for individual counties and cities. Shaking hazard and exposure of existing infrastructure - Rather than perform this analysis for each of the many earthquake scenarios developed by USGS and ABAG, we have used the shaking potential map (Plate 21) described earlier. . A huge 86:7% of the fixed transit in the Bay Area is in the two highest shaking potential areas, including 84.8% of the BART lines. This finding on exposure is consistent with the BART effort to upgrade and strengthen its facilities. . In comparison, 55.7% of the miles of roads, 56.8% of the rail lines, and 55% of the pipelines are in these areas. These percentages are based on information in Table 3: Shaking Hazard and Existing (2000) Land Use. See Plate 21 and http://quake.abag.ca.gov/mitigation/pickdbh2.html for more specific information for individual counties and cities. , Shaking hazard and exposure of existing critical facilities - Rather than perform this analysis for each of the many earthquake scenarios developed by USGS and ABAG, we have used the shaking potential map (Plate21) described earlier. . Of the 812 critical health care facilities in the Bay Area, over three-quarters (77.7%) are in the two highest shaking potential areas. . In addition, 70.1 % of the 2,063 public schools are in the two highest shaking potential areas. . Of the 3,991 critical facilities owned by owned by cities, counties, and other special districts in the Bay Area, 72.8% are in the two highest shaking potential areas. . 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Rather than perform this analysis for each of the earthquake scenarios developed by USGS and ABAG, we used the liquefaction susceptibility map (Plate 22) described earlier. The areas mapped as having moderate, high, and very high liquefaction susceptibility are roughly equivalent to the areas mapped by CGS as areas where studies are required (Plate 23). . Of the 4.36 million acres ofland in the Bay Area, 2.4% is in areas mapped as having very high liquefaction susceptibility, while 22.3% is the areas mapped in the combined moderate-high-very high liquefaction susceptibility. category. . 6.1 % of the urban land is in the areas mapped as having very high liquefaction susceptibility, versus only 1.2% of the non-urban land. . 39.1 %of the urban land is in the areas mapped in the combined moderate-'high-very high liquefaction susceptibility category, versus only 16.9% of the non-urban land. . Types of existing urban land uses with the highest percentages in those areas mapped as having very high liquefaction susceptibility are mixed commercial-industrial complexes (18.6%), industrial (13.8%), military use (11.9%), and infrastructure (10.4%). . The percentage of urban land located in these areas mapped as having very high liquefaction susceptibility ranged from a high of 16.8% in San Francisco to lows of less than 5% in Contra Costa, Napa, Santa Clara, Solano, and Sonoma counties. These percentages are based on information in Table 4: Liquefaction Susceptibility and Existing (2000) Land Use. See Plate 22 and http://quake.abag.ca.gov/mitigationlpickdbh2.html ,for more specific information for individual counties and cities. Liquefaction susceptibility and exposure of existing infrastructure - Again, we have used the liquefaction susceptibility map (Plate 22) descnbed earlier. . . Of the 33,995 miles of roads in the Bay Area, 4.6% are in areas mapped as having very high liquefaction susceptibility, while 27.9% are the areas mapped in the combined moderate-high-very high liquefaction susceptibility category. . In comparison, 51.9% of the miles of rail, 34.6% of transit lines, and 27.5% of pipelines are inthe combined moderate-high-very high liquefaction susceptibility category. These exposures are of concern because of the potential vulnerability of these lines to damage. These percentages are based on information in Table 4: Liquefaction Susceptibility and Existing (2000) Land Use. See Plate 22 and http://quake.abag.ca.~ov/mitigationlpickdbh2.html for more specific information for individual counties and cities. Liquefaction susceptibility and exposure of existing critical facilities - Again, we have used the liquefaction susceptibility map (Plate 22) described earlier. . Of the 812 critical health care facilities in the Bay Area, 5.4% are in areas mapped as having very high liquefaction susceptibility, while 56.7% are the areas mapped in the combined moderate-high-very high liquefaction susceptibility category. . Of the 2,063 public schools in the Bay Area, 4.8% are in areas mapped as having very high liquefaction susceptibility, while 50.8% are the areas mapped in the combined moderate-high-very high liquefaction susceptibility category. . Of the 3,991 critical facilities owned by cities, counties, and other districts, 16.2% are in areas mapped as having very high liquefaction susceptibility, while 58.0% are the areas mapped in the combined moderate-high-very high liquefaction susceptibility category. These percentages are based on information in Table 4: Liquefaction Susceptibility and Existing (2000) Land Use. See Plate 22 and http://quake.abag.ca.gov/mititmtion/pickcrit.html for more specific information for individual counties and cities. . 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"E CD E c Cii > o lft<9 ~ri .... 0 m....J - :E CD CD (/) Earthquake-induced landslide susceptibility and exposure of existing land use, infrastructure, . and critical facilities - The best available map for showing earthquake-induced landslide susceptibility is the one prepared by CGS showing the areas where studies are required (Plate 42). The problem with any type of regional assessment using this map is that it does not cover the entire Bay Area. Thus, while the database of exposed land uses exists at http://guake.abag.ca.gov/mitigation/pickdbh2.html, the data for the region does not exist in a format for a regional analysis. Housing damage due to earthquake ground shaking damage (last updated in 2003)- . The 1989 Loma Prieta earthquake caused a total of over I 6,000 units to be uninhabitable throughout the Monterey and San Francisco Bay Areas (including almost 13,000 in the Bay Area). . As shown in Table 5: Predicted Uninhabitable Units for Bay Area Counties and Selected Earthquake Scenarios, thirteen of 18 potential Bay Area earthquakes analyzed are expected to have a far larger impact than the Lorna Prieta earthquake. In fact, eight of these earthquakes will probably have a greater impact than the 1994 Northridge earthquake in the Los Angeles area, where over 46,000 housing units were made uninhabitable. See http://www.abag.ca.govlbayarea/egmaps/eghouse.html for additional information. Transportation system disruption due to earthquakes (last updated in 2003)- . The 1989 Lama Prieta earthquake caused a total of only 142 road closures throughout the Monterey and San Francisco Bay Areas, whereas the Northridge earthquake resulted in only . 140 road closures. . As shown in Table 6: Predicted Road Closures for Bay Area Counties and Selected Earthquake Scenarios, 16 of 18 potential Bay Area earthquakes analyzed are expected to have a far larger impact than either the Lorna Prieta or the Northridge earthquake. In fact, five of these earthquakes are predicted to have over 1,000 road closures. . One of the major causes of potential road and transit closures is BART. See http://www.abag.ca.govlbayarea/eqmaps/eqtrans/egtrans.html for additional information. Assessment of HAZUS for earthquake loss estimation (2003) - . The 1994 Northridge earthquake caused over $40 billion in losses, while the 1989 Loma Prieta earthquake caused about $6 billion in losses. . ABAG collaborated with USGS, CGS, and OES to write a paper on the results of several HAZUS33 runs for earthquake-related losses associated with future scenario earthquakes. . ABAG staff identified several potentially significant problems with using a combination of ShakeMap scenarios (which, as explained earlier, tend to produce shaking levels lower than the ABAG Shaking Scenario maps), the existing vulnerability formulas (which are prone to underestimate housing losses and losses to wood-frame structures such as dominate the building stock in the Bay Area), and incomplete building inventory data. . These HAZUS loss estimates are inadequate for planning purposes at the present time. . See http://guake.abag.'ca.gov/mitigation/HAZUS Paper.pdf for the entire paper. 33 HAZUS is a software package developed by FEMA for loss modeling. . Taming Natural Disasters 56 March 17, 2005 . . . TABLE 5: Predicted Uninhabitable Units for Bay Area Counties and Selected Earthquake. Scenarios Earthquake Alameda Contra Marin Napa San San Santa Solano Sonoma Scenario Costa Francisco Mateo Clara TOTAL Santa Cruz Mts. 1,968 159 297 0 11,781 223 1,277 2 3 15,710 San Andreas Peninsula-Golden 3,820 188 1,485 3 65,316 22,525 15,094 11 42 108,484 Gate San Andreas Northern Golden 4,345 560 2,988 19 62,654 1,904 449 127 1,804 74,851 Gate San Andreas Entire Bay Area 16,048 1,173 3,495 20 82,354 24,472 29,593 185 2,530 159,870 San Andreas No. San Gregorio 3,104 238 1,176 4 38,306 9,040 589 12 45 52,514 So. Hayward 64,451 1,760 1,030 16 ' 13,940 245 11,892 126 37 93,497 No. Hayward 43,132 7,686 1,653 19 11 ,464 210 303 128 74 64,669 N + S Hayward 88,265 10,102 2,125 36 37,670 1,616 14,273 1,046 559 155,692 Rodgers Creek 3,688 1,418 1,549 53 11 ,460 151 100 1,148 13,988 33,555 Rodgers Creek- 49,284 9,786 2,691 713 29,758 363 402 1,386 14,115 108,498 No. Havward So. Maacama 325 17 27 22 1,986 11 11 15 825 3,239 West Napa 1,382 286 27 4,284 2,011 15 29 1,668 126 9,828 Concord- 3,511 11,363 29 1,307 3,191 76 325 2,868 37 22,707 Green Vallev No. Calaveras 7,836 3,509 27 18 3,191 78 4,882 181 6 19,728 Central Calaveras 3,037 75 27 3 3,191 182 10,145 13 4 16,677 Mt. Diablo 6,128 4,868 751 3 10,489 23 109 17 4 22,392 Greenville 2,701 2,637 27 19 2,005 16 101 190 6 7,701 Monte Vista 323 5 16 1 2,429 2,392 27,223 2 2 32,393 TABLE NOTES - This table is based on ABAG's modeling of uninhabitable housing units in future earthquake scenarios (Shaken Awake!, Perkins and others, 1996) that was last updated in 2003 for consistency with U.S. Geological Survey earthquake scenarios released at that time. This modeling is based on an extensive statistical analysis ofthe housing damage which occurred as a result of the 1989 Loma Prieta and 1994 Northridge earthquakes. However, the expected percentage of pre-1940 single-family homes rendered uninhabitable used to generate this table is larger than published in 1996. New data on lack of retrofitting and reasons for low damage in the Northridge earthquake caused ABAG to increase the uninhabitable percentages used to create this table for pre-1940 single-family homes to 19% and 25% for MMI IX and X, respectively. Note that several fault segments listed above have new segment end points orwere not included in the 1996 report. They are included in this table to reflect ground shaking information published by USGS in 2003. The Santa Cruz Mts.-San Andreas is similar, but not identical, to the fault causing the Loma Prieta earthquake. The Monte Vista and West Napa faults have been added to the faults analyzed by USGS to illustrate the impact of an earthquake in these areas. The Maacama fault could impact the North Bay, but too little was known about the fault for the USGS to issue probabilities for it in 2003. It, too, has been added to illustrate possible damage. On the other' hand, the Southern Calaveras, the Southern San Gregorio, and the northern North Coast-San Andreas faults are outside of the Bay Area. The Bay Area impacts of earthquakes on these fault segments are dwarfed by their Bay Area segments so they are not included. Additional information on earthquakes and housing is available in Shaken Awake! and on the ABAG Earthquake Program Internet site at http://quake:abag.ca.gov . Taming Natural Disasters 57 March 17, 2005 TABLE 6: Predicted Road Closures for Bay Area Counties and Selected Earthquake Scenarios . Earthquake Alameda Contra Marin Napa San San Santa Solano Sonoma Scenario Costa Francisco Mateo Clara TOTAL Santa Cruz Mts. 24 10 3 0 44 9 64 0 154 San Andreas 1 Peninsula-Golden 50 9 22 0 335 300 146 1 4 866 Gate San Andreas Northern Golden 62 20 70 1 321 24 10 4 69 581 Gate San Andreas Entire Bay Area 146 30 77 3 429 315 250 6 75 1,332 San Andreas No. San Gregorio 43 11 20 0 164 144 13 1 6 401 So. Hayward 901 43 15 1 72 8 90 4 4 1,138 No. Hayward 335 238 20 1 48 5 7 5 8 667 N + S Hayward 1,081 268 28 2 214 16 99 10 16 1,734 Rodgers Creek 54 34 20 4 48 3 3 12 223 4 Rodgers Creek- 363 256 34 9 157 11 10 14 230 1,084 No. Hayward So. Maacama 8 3 1 3 6 0 1 1 53 74 West Napa 22 20 1 89 6 1 1 14 5 159 Concord- 56 201 1 19 11 3 7 83 4 386 Green Vallev No. Calaveras 180 107 1 1 11 3 53 6 1 363 Central Calaveras 51 10 1 0 11 4 132 1 1 210 Mt. Diablo 94 78 7 0 41 2 4 2 1 228 Greenville 70 47 1 1 6 1 4 6 1 138 Monte Vista 10 1 0 0 8 23 283 0 1 326 TABLE NOTES - This table is based on ABAG's modeling of road closures in future earthquake scenarios (Riding Out Future Quakes, Perkins and others, 1997) that was last updated in 2003 for consistency with U.S. Geological Survey earthquake scenarios released at that time. This modeling is based on an extensive statistical analysis of the road closures which occurred as a result of the 1989 Lorna Prieta and 1994 Northridge earthquakes. Note that several fault segments listed above have new segment end points or were not included in the 1996 report. They are included in this table to reflect ground shaking information published by USGS in 2003. The Santa Cruz Mts.-Sim Andreas is similar, but not identical; to the fault causing the Loma Prieta earthquake. The Monte Vista and West Napa Taming Natural Disasters . faults have been added to the faults analyzed by USGS to illustrate the impact of an earthquake in these areas. The Maacama fault could impact the North Bay, but too little was known about the fault for the USGS to issue probabilities for it in 2003. It, too, has been added to illustrate possible damage. On the other ' hand, the Southern Calaveras, the Southern San Gregorio, and the northern North Coast-San Andreas faults are outside of the Bay Area. The Bay Area impacts of earthquakes on these fault segments are dwarfed by their Bay Area segments so they are not included. Additional information on earthquakes and housing is available in Riding Out Future Quakes and on the ABAG Earthquake Program Internet site at http://quake.abag.ca.gov . . 58 March 17, 2005 . . . Tsunamis and exposure of existing land use and infrastructure - ABAG has not performed any analysis of the land use and infrastructure exposure within the tsunami evacuation areas as part of this Local Hazard Mitigation Plan. This exposure data is also not available on ABAG' s internet site. The maps are too preliminary and only cover a fraction of the coastline. In addition, the California Governor's Office of Emergency Services has stressed that these maps are NOT appropriate for anything but evacuation planning. Additional earthquake risk assessment plans - In addition, ABAG is in the process of conducting additional analyses on privately-owned hazardous buildings in earthquakes (initially to focus on unreinforced masonry buildings). These analyses will be completed after ABAG receives data from the cities and counties. Weather Weather-related hazards - probabilities. location. and extent Weather can result in three different hazards that have been mapped in this plan, as well as one that has not been mapped. First, large winter storms can result in flooding, landslides, and coastal erosion. Flooding The Federal Emergency Management Agency has mapped flooding hazards in the Bay Area's low-lying areas. These flood hazard maps have built-in probability information - the 100-year floodplain or the 50Q-year floodplain. Plate 44 depicts the 100-year flood zone for the Bay Area, as well as the zone for 500-year floods and other concerns. More detailed maps for individual local governments and additional landslide hazard information are available on line, at http://www.abag.ca. gov Ibayarea/ eqmaps/ eqfloods/floods.html. The maps available on the ABAG web site do not include information on depth of flooding, except that the 500-year flood areas also include areas subject tol00-year flood events with flooding depths expected to be less than one foot. ' . [Note that flooding associated with tsunami hazards are, covered above under earthquake- related hazards, not as part of flooding in this discussion.] Taming Natural Disasters 59 March 17, 2005 Landslides . These same storms also impact our hillsides by triggering debris flows and more slow-moving traditional landslides. The U.S. Geological Survey has developed maps depicting both debris flow source areas (Plate 45) and existing landslides (Plate 46). The map of existing landslides covers areas of severe coastal erosion. No formal estimates of probability are associated with these maps and there is no way to estimate these probabilities within the scope ofthisjnitial Local Hazard Mitigation Plan. There is also no way to estimate the scale of individual landslides in terms of size or extent based on these maps. The list of mitigation strategies includes several relating to ways in which local governments can increase the speed of completion of hazard maps, particularly GOVT-c-lO, LAND-a-2, LAND-a- 4, and LAND-a-5. ABAG is also working to secure funding for additional studies related to rainfall-induced landslide hazards in the Bay Area. More detailed maps for individual local governrrients and additional landslide hazard information are available on line at http://quake.abag.ca.gov/landslide. Wildfire Just as weather can result in too much water, the Bay Area's weather can result in too little water. One of the resulting hazards is wildfire. The California Department of Forestry has developed state-of-the-art maps depicting wildfire hazard areas. The two most useful maps are those depicting Wildland Urban Interface (WUI) wildfire threat (Plate 47) and wildfire threat from wildland fuels in State Responsibility Areas (Plate 48). Additional maps include a map of perimeters of past large fires (300 acre minimum for CDF fires since 1950 and 10 acre minimum for USFS fires since 1910 (Plate 49), a map of fire-related risks to ecosystem health as measured by condition class (Plate 50), a map of the distribution of wildland-urban-interface housing unit density (Plate 51), and a map of post-fire risk of increased surface erosion (Plate 52). More detailed maps for individual local governments and additional wildfire hazard information are available on line at http://quake.abag.ca.gov/wildfire. . Using a combination of the map of past wildfires (Plate 49) in combination with the fire threat maps (Plates 47 and 48), a table of the probability of an area burning in the next 50 years can be calculated. Based on an analysis of data on wildfires during the past 50 years, 27% of the areas mapped as an extreme wildfire threat have burned, 23% of those mapped as very high, and 14% of those mapped as high. In addition, 4.3% of the areas in wildland":urban-interface fire threat, areas have burned.34 Thus, the probability of the areas mapped as very high hazard on the wildfire threat is much greater than those mapped on the wildland-urban-interface fire threat map. On the other hand, the wildland-urban-interface fire threat map shows more urban areas- with a greater potential property value. More specific results of this analysis. are shown in Table 7: Estimate of Probability of Fire Affecting a Given Area Based on Data from Past 50 Years. 34 Source - Data from analysis of Cali fomi a Department of Forestry maps at htto:llwww.aba~.ca.gov/bavarealeqmaps/wildfire/. (Also see Table 5.) . Taming Natural Disasters 6:0 March 17, 2005 . . . TABLE 7: Estimate of Probability of Fire Affecting a Given Area Based on Data from Past 50 Years Threat Cate 0 On Wildfire Threat Ma Total Number of Acres Acres Burned in Past 50 Within Threat Years Classification 16,109 2 1!)9,(3~1. 312,g34Lw 23,012: threat Moderate .....wHig6I. V~ryf:iighl Extreme On Wildland Urban Interface Fire Threat Ma m....WWWww ...~QQ!!03. . 1,1Ei~,~~6. J,J.52,490. 1,3(3(3,!)44 84,661 WU I Acres 34,652: 810,757 Percent of Acres That Burned in Past 50-Year Period 2.68% 2.00% 13.86% 22.83% 27.18% 4.27% Drought and Dam Failure While the Bay Area's annual six-month dry season is associated with an annual wildfire "season" in the fall, what would be a drought in other areas of the country is controlled in this region through the importation ofwatei and the storage of water in reservoirs. Occasionally, the impacts of prolonged periods of drought cause additional drought-related problems, including crop losses and shortages of water for landscaping. Drought can impact the entire Bay Area, not just one particular county or a few cities. In addition, shortages in precipitation in the Sierra Nevada can have a more pronounced impact on water supply in the region than a drought in the Bay Area itself. Thus, drought is not a hazard that can be depicted in map form. There is also no current data on the probability of drought that would be comparable to the USGS effort on earthquakes in the region, or the way 100-year flood maps are created. Such an effort has been proposed by the Western Governors' Association, most recently in 2003. See http://www.westgov.org/wga/initiatives/drought2.htm for more information. The list of mitigation strategies includes several relating to ways in which local governments can help efforts to increase the knowledge of this hazard and/or plan for its impacts, particularly GOVT-c-lO, ENVI-a-3, ENVI-a-4, ENVI-a-6, ENVI-a-7, and ENVI-b-l. On the other hand, the dams built to hold the water in reservoirs can be damaged, due to a huge storm and associated runoff, an earthquake, or a terrorism event. Maps depicting the areas that might be inundated were prepared by the dam owners. No probability information is available for the Bay Area dam failure hazard. These maps have been generalized into a single regional map (Plate 53). More detailed maps for individual local governments and additional dam failure hazard information are available on line at http://www.abag.ca. gov Ibayarea/ eqmaps/ damfailure/ damfail.htmL Taming Natural Disasters 61 March 17, 2005 Other Weather Concerns Not Addressed Directly as Part of This Plan Similarly, the Bay Area can have days that exceed lOOoF. These heat waves would be more life- threatening if it were not for the common availability of air conditioning. Thus, this hazard is not dealt with as part of this Local Hazard Mitigation Plan. Finally, the Bay Area, particularly its crops, can be subject to extensive damage due to freezes. Freezing conditions also cause die back of vegetation that can become fuel for the subsequent fire seasons. This issue has been especially problematic for the Bay Area's eucalyptus trees. Again, this hazard is not something that can be easily depicted in map form. The hazard itself can be mitigated, however. Some available strategies are included in Local Hazard Mitigation Plan when dealing with the more general wildfire hazard. . . ". . Taming Natural Disasters 62 March 17, 2005 . Past occurrences of Bay Area weather-related disasters Flooding, storms, landslides, droughts, and wildfires have been among the most common disasters in the Bay Area during the period from 1950 to 2000. . Extensive flooding and/or landslides occurred in 1950, 1955, 1957, 1958, 1959,1962, 1963, 1964, 1965, 1966, 1969, 1970, 1973, 1980, 1982, 1983, 1992, 1995, 1996, 1997, and 1998. . Large wildfires occurred in 1961, 1962, 1964, 1965, 1970, 1981, 1985, 1988, and 1991. . Major droughts were in 1973 and 1976. . Freezing conditions caused emergency conditions in 1970, 1972, 1973, and 1990. . While dams have failed elsewhere, a dam has never failed in the Bay Area. See Appendix D and http://quake.abag.ca.gov/mitigationldisaster-history.html for more specific information. Vulnerability of the Bay Area to weather-related disasters ABAG has focused its assessment of weather-related vulnerability by examining the existing land uses in mapped hazard areas. . Flooding and exposure of existing land use- . Of the 4.36 million acres ofland in the Bay Area, 9.4% is in the 100-year flood zone, while only 2.1 % is in the 500-year flood zone or area of other flooding concern. . 8.9 % of the urban land is in the 100-year flood zone, versus 9.6% of the non-urban land. . 4.9% of the urban land is in the 500-year flood zone or area of other concern, versus only 1.2% of the non-urban land. The fact that over four times the percentage of urban versus non-urban land is in these areas is because lands protected from 100-year flooding are in these areas of "other flooding concerns." . Types of existing urban land uses with the highest percentages in 1 OO-year flood zones are mixed commercial-industrial complexes (22.7%), urban open space (19.7%), and military use (15.4%). . The percentage of urban land located in the 100-year flood zone ranged from a high of 13.9% in Solano County and 12.2% in Marin County to lows of 0% in San Francisco and 4.6% in San Mateo County. These percentages are based on information in Table 8: Flooding Hazards and Existing (2000) Land Use. See Plate 44 and http://quake.abag.ca.gov/mitigationlpickdbh2.html for more specific information for individual counties and cities. Flooding and exposure of existing infrastructure - . Rail is disproportionately located in zones subject to 100-year floods, with 19.7% of the miles of track located in these areas. ' . Pipelines, as underground lines, should not be impacted by flooding even though 4.5% of the miles of pipelines in the region are in these areas. . While 6.4% of the transit lines are in these areas, this statistic simply points to a need for further assessment on the part of transit operators. For example, underground BART stations are more vulnerable to potential flooding than are elevated track. . Taming Natural Disasters 63 March 17, 2005 TABLE 8: Flooding Hazards and Existing (2000) land Use Within 100- Within 500- Year % of Land Within 500- Year Flood Flood Zone or Other % of Land Within 100- Year Flood Zone or Total Acres Zone Area of Concern Year Flood Zone Other Area of Concern Total 4,395,975 413,595 93,452 9.4% 2.1% Urban 1,082,285 96,067 52,706 8.9% 4.9% Non-Urban 3,313,690 317,529 40,746 9.6% 1.2% URBAN ONLY: Residential 578,048 26,016 28,125 4.5% 4.9% Mixed R+C 2,345 195 91 8.3% 3.9% Commercial! Services 100,396 8,538 6,365 8.5% 6.3% Mixed C+I 12,137 2,750 1,624 22.7% 13.4% Industrial 66,861 9,871 4,148 14.8% 6.2% Military 31,409 4,834 53 15.4% 0.2% Infrastructure 146,061 15,320 5,905 10.5% 4.0% Urban Open 145,028 28,543 6,396 19.7% 4.4% URBAN ONLY: Alameda 168,564 10,868 9,250 6.4% 5.5% Contra Costa 192,006 12,820 4,100 6.7% 2.1% Marin 52,784 6,457 2,893 12.2% 5.5% Napa 34,826 3,631 475 10.4% 1.4% San Francisco 29,187 0 0 0.0% 0.0% San Mateo 103,990 4,816 4,043 4.6% 3.9% Santa Clara 199,139 22,885 23,636 11.5% 11.9% Solano 102,317 14,250 4,298 13.9% 4.2% Sonoma 199,470 20,340 4,011 10.2% 2.0% Within 100- Within 500-Year % of Miles Within 500- Year Flood Flood Zone or Other % of Miles Within 100- Year Flood Zone or Total Miles Zone Area of Concern Year Flood Zone Other Area of Concern INFRASTRUCTURE: - Roads 33,995 2,487 1,561 7.3% 4.6% Transit 173 11 4 6.4% 2.3% Rail 951 187 56 19.7% 5.9% Pipelines 32,022 2,288 1,440 7.1% 4.5% Within 100- Within 500-Year % Within 500- Year Total Year Flood Flood Zone or Other, % Within 100- Year Flood Zone or Other Number Zone Area of Concern Flood Zone . Area of Concern CRITICAL FACILITIES: Health Care 812 33 56 4.1% r' 6.9% Schools 2,063 80 121 3.9% 5.9% Bridges 4,159 697 318 16.8% 7.6% Local Government 3,991 370 352 9.3% 8.8% See http://Quake.abaQ .ca .Qov/m itiQ3tion/pi ckdbh2. html and http://Quake.abaQ.ca.Qov/mitiQation/pickcrit. html for more specific information. ,Taming Natural Disasters 64 March ] 7, 2005 . . . . . . These percentages are based on information in Table 8: Flooding Hazards and Existing (2000) Land Use. See Plate 44 and http://quake.abag.ca.gov/mitigation/pickdbh2.html for more specific information for individual counties and cities. Flooding and exposure of existing critical facilities - . Of the 812 critical health care facilities in the Bay Area,,6.9% are in zones subject to 100- year floods. . Of the 2,063 public schools in the Bay Area, 5.9% are in zones subject to 100-year floods. . Of the 3,991 critical facilities owned by cities, counties, and other districts, 9.3% are in zones subject to 100-year floods. These percentages are based on information in Table 8: Flooding Hazards and Existing (2000) Land Use. See Plate 44 and http://quake.abag.ca.gov/mitigation/pickcrit.html for more specific information for individual counties and cities. ' Repetitive flood losses - The Federal Emergency Management Agency (FEMA) insures properties against flooding losses in the Bay Area through the National Flood Insurance Program. Those properties that have had more than one insured flood loss are called "repetitive loss properties." There are 1,158 properties that have experienced repetitive losses in the Bay Area, resulting in a total of3,218 claims totaling $64,032,056. A total of921 of the properties are located in the 100-year flood plain. An additional 80 are located in the areas mapped as a 500-year flood zone or area of other concern. The remaining 157 properties are located outside of these mapped hazard areas. Most of these properties (67%) are located in Sonoma County. An even higher percentage of the claims (69.6%) and insured losses (73.6%) are located in this county. Almost all of these losses occurred in the unincorporated portion of that county. See Table 9: Repetitive Flood Losses for data summarized by county and http://quake.abag.ca.gov/mitigation/pickflood.html for more specific information for individual counties and cities. TABLE 9: Repetitive Flood Losses Within 500- Within Year Flood Total 100-Year Zone or Other Not Within the Number Number of Flood Area of Mapped Flood of Properties Zone Concern Zone Claims Total 1,158 921 80 157 3,218 Alameda 10 2 '0 8 20 Contra Costa 46 29 9 8 103 Marin 149 124 6 19 398 Napa 95 67 7 21 247 San Francisco 4 0 0 4 11 San Mateo 23 8 4 11 56 Santa Clara 27 19 4 4 67 Solano 28 22 5 1 76 Sonoma 776 650 45 81 2,240 See http://Quake.abaQ.ca.Qov/mitiQation/pickflood.htmlfor more specific information. Taming Natural Disasters 65 March 17, 2005 Existing landslide areas and existing land use - . . Of the 4.36 million acres-ofland in the Bay Area, 23.0% are in areas mapped as mostly landslides on the existing landslide map. . Only 8.3% of the urban land is in these mostly landslide areas, versus 27.9% of the non- urban land. . Types of existing urban land uses with the highest percentages in these mostly landslide areas are urban open space (14.1 %) and residential use (9.3%). . Of the 89,647 acres of urban land in these areas of extensive landslides, 59.8% is residential use. . The percentage of urban land located in these mostly landslide areas ranged from a high of I 8.2% in Marin County, 13.2% in Contra Costa County, and 12.5% in Sonoma County to a low of 1 % in San Francisco. These percentages are based on information in Table 10: Existing Landslide Areas and Existing (2000) Land Use. See Plate 46 and http://quake.abag.ca.gov/mitigationlpickdbh2.html for more specific information for individual counties and cities. Existing landslide areas and existing infrastructure - . While II % of the miles of pipelines and 10.6% of the miles of roads are in areas mapped as mostly landslides, only 2.3% of the miles of transit miles and 1.3% of the rail miles are in these areas. . The exposure of pipelines and roads to landslide hazards is greatest in Marin County, where 23.1 % of the pipelines and 22.5% of the roads are in these areas of existing landslides. These percentages are based on information in Table 10: Existing Landslide Areas and Existing . (2000) Land Use. See Plate 46 and http://quake.abag.ca.gov/mitigation/pickdbh2.html for more specific information for individual counties and cities. Existing landslide areas and existing critical facilities - . Of the 812 critical health care facilities in the. Bay Area, only 0.5% are in areas mapped as mostly landslides on the existing landslide map. . Of the 2,063 public schools in the Bay Area, only 1.0% are in areas mapped as mostly landslides on the existing landslide map. . Of the 3,991 critical facilities owned by cities, counties, and other special districts in the Bay Area, 2.7% are in areas mapped as mostly landslides on the existing landslide map. These percentages are based on information in Table 10: Existing Landslide Areas and Existing (2000) Land Use. See Plate 46 and http://quake.abag.ca.gov/mitigationlpickcrit.html, for more specific information for individual counties and cities. . Taming Natural Disasters 66 March 17, 2005 TABLE 10: Existing landslide Areas and Existing (2000) land Use . . In Areas of ' Mostly % of Land in Areas of Total Acres Landslides Mostly Landslides Total 4,395,975 1,012,701 23.0% Urban 1,082,285 89,647 8.3% Non-Urban 3,313,690 923,054 27.9% URBAN ONLY: Residential 578,048 53,606 9.3% Mixed R+C 2,345 6 0.3% Commercial/ Services 100,396 3,758 3.7% Mixed C+I 12,137 89 0.7% Industrial 66,8p1 2,416 3.6% Military 31 ,409 571 1.8% Infrastructure 146,061 8,820 6.0% Urban Open 145,028 20,381 .. 14.1% URBAN ONL Y: Alameda 168,564 7,791 ' 4.6% Contra Costa 192,006 25,398 13.2% Marin 52,784 9,601 18.2% Napa 34,826 2,098 6.0% San Francisco 29,187 282 1.0% San Mateo 103,990 8,579 8.2% Santa Clara 199,139 7,593 3.8% Solano 102,317 3,312 3.2% Sonoma 199,470 24,992 12.5% In Areas of Mostly % of Miles in Areas of Total Miles Landslides Mostly Landslides INFRASTRUCTURE: Roads 33,995 3,588 10.6% Transit 173 4 2.3% Rail 951 12 1.3% Pipelines 32,022 3,532 11.0% In Areas of Total Mostly % in Areas of Mostly Number Landslides Landslides , CRITICAL FACILITIES: Health Care 812 4 0.5% Schools 2,063 21 1.0% Bridges 4,159 147 3.5% Local Government 3,991 108 2.7% See htto://auake.abaa.ca.aov/m itiaation/oickdbh2.htm I and htto ://auake.abaa.ca.Qov/mitiaation/oickcrit.html for more specific information. . Taming Natural Disasters 67 March 17, 2005 Wildfire and exposure of existing land use - . Of the 4.36 million acres ofland in the Bay Area, 18.4% is in Wildland Urban Interface (WUI) wildfire threat areas, while 59.2% is in the high, very high, or extreme wildfire threat areas in State Responsibility Areas (SRAs). . 48.5% of the urban land is in the WUI wildfire threat areas. . 21.3% of the urban land is in the SRA wildfire threat areas, versus 71.6% of the non- urban land. This discrepancy is to be expected because the State focuses on non-urban areas. . Types of existing urban land uses with the highest percentages in WUI wildfire threat areas are residential (56.3%), mixed residential-commercial (52.0%), urban open (45.8%), and infrastructure use (42.7%). . Of the 524,913 acres of urban land in these WUI wildfire threat areas, 62% is residential use. . The percentage of urban land located in WUI wildfire threat.areas ranged from a high of 72.8% in Marin County and 63.0% in Contra Costa County to lows of31.7% in Solano County and 39.6% in Santa Clara County. These percentages are based on information in Table 11: Wildfire Hazards and Existing (2000) Land Use. See Plates 47 and 48, as well as http://quake.abag.ca.gov/mitigation/oickdbh2.html for more specific information for individual counties and cities. . Wildfire and exposure of existing infrastructure - . While 42.7% of the region's roads and 36.4% ofthe transit lines are in WUI wildfire threat areas, only 27.8% of the rail is in these areas. . While 26.6% of the region's roads are in areas mapped as having high, very high, or extreme wildfire threat, only 5:8% of the transit lines and 10% of the rail lines are in these areas. . Data on pipelines, though provided, is not particularly relevant because underground pipelines are not particularly vulnerable to damage from wildfires. These percentages are based on information in Table 11: Wildfire Hazards and Existing (2000) Land Use. 'See Plates 47 and 48, as well as http://guake.abag.ca.gov/mitigation/pickdbh2.html for more specific information for individual counties and cities. . Wildfire and exposure of existing critical facilities - . Of the 812 critical health care facilities in the Bay Area, 38.4% are in WUI wildfire threat areas, while only 0.6% are in areas mapped as having high, very high, or extreme wildfire threat. . Of the 2,063 public schools in the Bay Area, 48.6% are in WUI wildfire threat areas, while 2.2% are in areas mapped as having high, very high, or extreme wildfire threat. . Of the 2,063 critical facilities owned by cities, counties, and other special districts in the Bay Area, 44.2% are in WUI wildfire threat areas, while 5.J % are in areas mapped as having high, very high, or extreme wildfire threat . These statistics point to the need to ensure that basic fire mitigation measures are undertaken for these exposed facilities. These percentages are based on information in Table 11: Wildfire Hazards and Existing (2000) Land Use. See Plates 47 and 48, as well as http://guake.abag.ca.gov/mitigation/pickcrit.html, for more specific information for individual counties and cities. . Taming Natural Disasters 68 March 17, 2005 . . . TABLE 11: Wildfire Hazards and Existing (2000) land Use High, Very High, % of Land in % of Land in High, Wildland Urban or Extreme Wildland Urban Very High, or Total Interface Wildfire Wildfire Threat Interface Wildfire Extreme Wildfire Acres Threat Areas Threat Area Threat Area Total 4,395,975 810,757 2,603,695 18.4% 59.2% Urban 1,082,285 524,913 230,657 48.5% 21.3% Non-Urban 3,313,690 285,844 2,373,039 8.6% 71.6% URBAN ONLY: Residential 578,048 325,665 132,685 56.3% 23.0% Mixed R+C 2,345 1,220 83 52.0% 3.5% Commercial/ Services 100,396 38,810 9,207 38.7% 9.2% Mixed C+I 12,137 3,437 232 28.3% 1.9% Industrial 66,861 18,874 6,903 28.2% 10.3% Military 31 ,409 8,088 11,023 25.8% 35.1% I nfrastructu re 146,061 62,431 23,272 42.7% 15.9% Urban Open 145,028 66,388 47,251 45.8% 32.6% URBAN ONLY: Alameda 168,564 71,790 22,361 42.6% 13.3% Contra Costa 192,006 120,901 43,805 63.0% 22.8% Marin 52,784 38,428 16,835 72.8% 31.9% Napa 34,826 15,107 12,322 43.4% 35.4% San Francisco 29,187 13,880 668 47.6% 2.3% San Mateo 103,990 54,618 16,478 52.5% 15.8% Santa Clara 199,139 78,879 17,933 39.6% 9.0% Solano 102,317 32,404 19,355 31.7% 18.9% Sonoma ) 199,4 70 98,906 80,900 49.6% 40.6% High,Very High, % of Miles in % of Miles in High, Wildland Urban or Extreme Wildland Urban Very High, or Total Interface Wildfire Wildfire Threat Interface Wildfire Extreme Wildfire Miles Threat Areas Threat Area Threat Area INFRASTRUCTU RE: Roads 33,995 13,829 9,032 40.7% 26.6% Transit 173 63 10 36.4% 5.8% Rail 951 264 95 27.8% 10.0% Pipelines 32,022 13,084 8,850 40.9% 27.6% High, Very High, % in Wildland % in High, Very Wildland Urban or Extreme Urban Interface High, or Extreme Total Interface Wildfire Wildfire Threat Wildfire Threat Wildfire Threat Number Threat Areas Area Area CRITICAL FACILITIES: Health Care 812 320 5 39.4% 0.6% Schools 2,063 1,002 46 48.6% 2.2% Bridges 4,159 1,607 548 38.6% 13.2% Local Government 3,991 1,763 203 44.2% 5.1% See http://auake.abaa.ca.aov/mitiaation/pickdbh2.html and http://auake.abaa.ca.aov/mitiaation/pic for more specific information. Taming Natural Disasters. 69 March 17,2005 Drought exposure of existing land use - All of the 4.36 million acres ofland in the Bay Area is subject to drought. . .Dam failure inundation areas and exposure of existing land use - . Of the 4.36 million acres of land in the Bay Area, 10.4% are in areas mapped as dam failure inundation areas. . 18.5% oftheurban land is in these dam failure inundation areas, versus only 7.8% of the non-urban land. . Types of existing urban land uses with the highest percentages in these dam failure inundation areas are mixed commercial-industrial complexes (42.4%) and industrial use (31.9%). . Of the 200,142 acres of urban land in these dam failure inundation areas, 50% is residential use. . The percentage of urban land located in these dam failure inundation areas ranged from a high of approximately 32% in Alameda and Santa Clara counties to lows of 4.8% in Marin County and 6.1 % in San Francisco. These percentages are based on information in Table 12: Dam Failure Inundation Areas and Existing (2000) Land Use. See Plate 53 and http://Quake.abag.ca.gov/mitigationlpickdbh2.html for more specific information for individual counties and cities. Dam failure inundation areas and exposure of existing infrastructure- . 32.5% of the miles of rail and 24.3% of transit lines in the region are in areas mapped as dam failure inundation areas. . . On the other hand, 17.6% of the roads and 17.1 % of the pipelines are in these areas. . . The exposure of transit lines is highest in Santa Clara ~ounty, where 66.7% of the miles ofthe Santa Clara VT A are in these areas. . The exposure of rail lines to dam failure inundation are highest in Santa Clara County, where 59.6% of the miles of rail are in these areas, and in Alameda County, where 46.1% of the miles of rail are in these areas. . These percentages are based on information in Table 12: Dam Failure Inundation Areas and Existing (2000) Land Use. See Plate 53 and http://guake.abag.ca.gov/mitigationJpickdbh2.html for more specific information for individual counties and cities. Dam failure inundation areas and exposure of existing critical facilities - . Of the 812 critical health care facilities in the Bay Area, 25.5% are in areas mapped as dam failure inundation areas. . Of the 2,063 public schools in the Bay Area, 19.9% are in areas mapped as dam failure inundation areas. . Of the 3,991 critical facilities owned by cities, counties, and other special districts in the Bay Area, 25.8% are in areas mapped as dam failure inundation areas. These percentages are based on information in Table 12: Dam Failure Inundation Areas and Existing (2000) Land Use. See Plate 53 and http://quake.abag.ca.gov/mitigation/pickcrit.html, for more specific information for individual counties and cities. These high exposures point to the need to ensure the safety of dams in the region. Existing state and federal laws and requirements should be followed. . Taming Natural Disasters 70 March 17, 2005 . . . TABLE 12: Dam Failure Inundation Areas and Existing (2000) land Use In Dam , Inundation % of Land in Dam Total Acres Area Inundation Area Total 4,395,975 457,925 10.4% Urban 1,082,285 200,142 18.5% Non-Urban 3,313,690 257,783 , 7.8% URBAN ONL Y: Residential 578,048 101,014 17.5% Mixed R+C 2,345 613 26.1% Commercial! Services 100,396 23,842 23.7% Mixed C+I 12,137 5,149 42.4% Industrial 66,861 21,328 31.9% Military 31,409 1,248 4.0% Infrastructure 146,061 22,353 15.3% Urban Open 145,028 24,596 17.0% URBAN ONLY: Alameda 168,564 53,705 31.9% Contra Costa 192,006' 18,232 9.5% Marin 52,784 2,511' 4.8% Napa 34,826 5,570 16.0% San Francisco 29,187 1,784 6.1% San Mateo 103,990 9,486 9.1% Santa Clara 199,139 63,830 32.1% Solano 102,317 16,766 16.4% Sonoma 199,470 28,259 14.2% In Dam Inundation % of Miles in Dam Total Miles Area Inundation Area INFRASTRUCTURE: Roads 33,995 5,984 17.6% Transit 173 42 24.3% Rail 951 309 32.5% Pipelines 32,022 5,482 17.1% In Dam Total Inundation % in Dam Inundation Number Area Area CRITICAL FACILITIES: Health Care 812 207 25.5% Schools 2,063 411 19.9% Bridges 4,159 1,256 30.2% Local Government 3,991 1,031 25.8% See http://auake.abaq.ca.aov!mitiaation/pickdbh2.html and http://auake.abaa.ca.aov/mitiqation/pickcrit.html . for more specific information. Taming Natural Disasters 71 March 17, 2005 Summary Overview of Impacts of Natural Hazards on the Bay Area . Earthquake Impacts - The natural disasters with the largest potential impacts on the Bay Area are earthquakes. Most of the damage is due to ground shaking, with relatively little due to liquefaction and landsliding. For example, in the Lorna Prieta earthquake, only 1.6%ofthe$6 billion in losses could be attributed to liquefaction 35, and an. even smaller percentage to landsliding. Surface fault rupture can do significant damage to infrastructure systems, depending on the earthquake. (The fault that caused the Lorna Prieta earthquake, for example, did not rupture the surface, so there were no losses associated with fault rupture in that earthquake.) The extent of the impact of earthquake disasters can best be explained using various earthquake scenario events. For example, in a magnitude 6.9 earthquake on the entire Hayward fault (extending from San Pablo Bay to the border Of Alameda and Santa Clara counties), ABAG has estimated over 150;000 uninhabitable housing units and 1,700 road closures. The FEMA- developed HAZUS software only estimates 24,000 displaced households, a factor of 6 lower than the ABAG estimates. Part of this discrepancy is due to uncertainty on the impact on wood- frame apartments with parking in the ground floor ("soft-story" apartments). HAZUS estimates the total losses for that earthquake as only $23 billion (versus actual losses of over $40 billion in the Northridge earthquake, a smaller magnitude earthquake with a less vulnerable building stock). The Bay Area Economic Forum produced a 2002 report on the impact of this earthquake on Hetch-Hetchy Water and the Bay Area Economi6, estimating that the losses associated with failure of that system alone would be $17.2 billion. Finally, the HAZUS software predicts from 100-700 fatalities in that earthquake scenario, depending on the time of day. These estimates are . difficult to evaluate, particularly because they are so tied to the vulnerability of particular systems. For example, fatalities in the BART tube alone could exceed that value if the tube were to rupture catastrophically. Obviously, the current HAZUS estimates are inadequate. Thus, as specified in the ABAG Annex to this plan, ABAG will be working to develop different ways to either refine those estimates or develop alternative ways to express losses and risk during 2005 and early 2006. See ABAG Annex mitigation strategy GOVT-d-2. Any remaining gaps in knowledge following that effort will be identified as part of that effort. The risk and loss estimates will be city-specific. Weather-Related Impacts - Past flooding losses have been significant, but not as large as for earthquakes. For example, the January 1997 floods resulted in $1.8 billion in total damage in California, while the EI Nino storms of early 1998 resulted in $550million in losses in the entire state, including both flooding and landslides impacts. FEMA documents $64 million in total repetitive losses in the Bay Area that have been paid by their insurance program since its inception, most of which ($48 million) has occurred in Sonoma County. The Holland and Webb Tracts levee breaks in 1980 impacted Contra Costa, Sacramento, and San Joaquin counties and resulted in $17.4 million in damage. However, since 8.9% of the urban land in the Bay Area is within the 100-year flood plain, future 35 Holzer, T.L., ed., 1998. "Introduction" in The Loma Prieta, California, Earthquake of October 17,1989- Liquefaction. u.s. Geological Survey Prof. Paper 1551-8: Reston, VA, pp. 84. 36 See http://www.baveconfor.org/pdf/hetchhetchvfinaI2.pdfto view the entire report. . Taming Natural Disasters 72 March 17, 2005 . . . losses could be more significant than in the past. Note that some of the repetitive loss claims have occurred in areas outside of the mapped 100-year flood plain, it is also clear that other areas are susceptible to flooding, but to a lesser extent. Losses from landslides are typically lower than associated flooding. However, in the EI Nino storms of early 1998, USGS documented approximately $150 million in losses due to approximately 300 landslides that occurred in the Bay Area and Santa Cruz County3? The landslides ranged in size from a 25 m3 failure of engineered material to a reactivation of the massive (13 million m3) Mission Peak earthflow complex in Alameda County. The largest urban-wildland fire in the Bay Area, the 1991 fire in the East Bay Hills, resulted in $1.7 billion in losses. In that fire, 3,354 family dwellings and 456 apartments were destroyed, while 25 people were killed and 150 people were injured. It is unlikely that any single fire disaster in the Bay Area would exceed that fire in total losses. The report on Hetch-Hetchy Water and the Bay Area Economy discussed earlier hints at the importance of water to the region and the potential impacts of drought and population growth. That report notes on page 5 that: Based on conditions during the most recent drought period, SFPUC now has determined that the maximum quantity of water it can reliably deliver to its customer base is 239 mgd annually. However, actual demand in 2000-2001 was nearly 260 mgd, and it is generally understood that the SFPUC system is operating in excess of its assured supply capacity and approaching its actual delivery capacity. Total demand for Hetch Hetchy water is expected to grow to 303 mgd in 2030 and 310 mgd by 2050. Absent a significant expansion ofthe system, the shortfall relative to assured supply will therefore increase from 21 mgd presently to 64 mgd within 30 years and 71mgd within 50 years. Most Bay Area water districts develop long-term water supply and management plans, including urban water shortage contingency analyses. ABAG will be working with water districts and others on this issue, as specified in the ABAG Annex, Mitigation Strategy INFR-d-4 and ENVI- a-4 and ENVI-a-5. Catastrophic failure of a dam in the region would result in huge losses. While damage losses have not been quantified, the areas subject to dam failure inundation include 18.5% of the urban land in the Bay Area. Lack of understanding of potential impacts of global warming on the region leads to further (uncertainties in estimating weather-related losses and impacts. Again, more work is needed in estimating the impacts of weather-related disasters. Thus, as specified in the ABAG Annex to this plan, ABAG will be working to develop different ways to express losses and risk during 2005 and early 2006. See ABAG Annex mitigation strategy GOVT -d-2. Any remaining gaps in knowledge following that effort will be identified as part of that effort. The risk and loss estimates will be city-specific. 37 Godt, l.W. , ed., 1999. "Introduction" in Maps Showing Locations of Damaging Landslides Caused by El Nino Rainstorms, Winter Season1997-98, San Francisco Bay Region, California: U.S. Geological Survey Misc. Field Studies Map MF2325-A-J: Reston, VA. See http://pubs.usgs.gov/mf/1999/mf-2325/. Taming Natural Disasters 73 March 17, 2005 ' APPENDIX D Disasters Affecting the San Francisco Bay Area 1950 - 2000 . The California Office of Emergency Services has compiled two lists of disasters affecting the State, including the San Francisco Bay Area - one for the period from 1950 - 1999, and a second for more recent disasters. The following list of 56 disasters affecting all or part of the nine- county Bay Area during that 5 I-year period is extracted from those lists (of 181 disasters statewide). All but seven of these disasters are caused by natural hazards, for an average of almost one natural disaster affecting all or part of the San Francisco Bay Area every year. 11/50 Floods Declared: statewide CA OCD 50-01(11121/50) Federal: not declared 9 deaths Damage: Sacramento River Basin above Delta-$4,983,000; Sacramento-San Joaquin Delta- $4,550,000; San Joaquin River Basin-Consumnes River to Upper San Joaquin River- $11,460,000; Upper San Joaquin River Basin-Kings River to Kern River~$11,190,000; TOTAL- $32,183,000 12/55 Floods Declared: statewide CD 47-DR-CA (12/22/55) Federal: 12/23/55 74 deaths Damage: $200 million . 5/57 Unseasonal and Heavy Rainfall Declared: State of Emergency-cherry producing areas of Northern California (requested by . Department of Agriculture) 5/20/57 Federal: not declared no deaths, 2 injuries Damage: $6 million in agricultural losses 2/58 Storm And Flood Damage , Declared: Northern California (Southern boundaries of Santa Cruz, Santa Clara, Stanislaus, Tuolumne, Alpine Counties to the Oregon border) CDO 58-03 (2/26/58) Federal: not declared Damage: not available . Taming Natural Disasters 74 March 17, 2005 . . . 4/58 Storm and Flood Damage Declared: statewide (4/2/58) Federal: 82 (4/4/58) 13 deaths, several injuries Damage: $20 million, plus $4 million agricultural 9/59 Unseasonal and Heavy Rainfall Declared: Tokay grape producing areas of Northern California (requested by Dept. of Agriculture) (9/19/59) Federal: not declared 2 deaths Damage: $100,000 9/61 Widespread Fires Declared: Amador, Butte, EI Dorado, Napa, Nevada, Placer, San Diego, Sonoma, Tehama (9/8/61 ) Federal: not declared Damage: public-$243,000; private-$4,183,098; watershed-$1,270,715; TOTAL-$5,696,813 9/62 Fires and Explosions Declared: City of San Leandro (Alameda County) (9/14/62) Federal: not declared 1 death, 12 injuries Damage: $500,000 Fall '62 Flood and Rainstorms Declared: Alameda, Butte, Contra Costa, Modoc, Napa, San Mateo, Sierra, Sutter, Yuba (10/17/62), Placer (10/25/62), Trinity (10/30/62), Lassen (1114/62) Federal: 138 (10/24/62) amended to include Placer, Trinity, and Lassen Counties Damage: $4 million+ 2/63 Abnormally Heavy and Continuous Rainfall Declared: Northern California (boundaries of San Luis Obispo, Ventura, Los Angeles, and San Bernardino counties to the Oregon State line) (2/14/64) Federal: not declared Damage: not available Taming Natural Disasters 75 March 17,2005 2/63 . Flood and Rainstorms Declared: Alpine, Nevada, Placer, Plumas, Sierra (2/7/63), Amador, Colusa, EI Dorado, Glenn, Lake, Lassen, Tehama, Santa Clara, Santa Cruz, Siskiyou, Yolo, Tulare (2/26/63), Mono, Trinity (2/29/63), Yuba (4/22/63) ,Federal: 145 (2/25/63), amended 1/30/63 to include Orange County and Redondo Beach Damage: not available 9/64 Major and Widespread Fires and Excessively High Winds Declared: Napa (9/22/64), Sonoma (9/23/64), Santa Barbara (9/25/64) Federal: not declared Damage: private-$3.5 million; watershed-$13 million; TOTAL-$16.5 million Note: By special appropriation, Congress approved $860,000 for Santa Barbara County. The USDA, through Forest Service programs, spent $1.044 million for seeding and reestablishing dams in these counties. . 9/64 . Tsunami Caused by March 1964 Earthquake in Alaska Declared: Marin (9/15/64) (Tax Relief) Federal: not declared Damage: not applicable, only costs were for mitigation Winter '64-' 65 1964 Late Winter Storms Abnormally heavy and continuous rainfall and windstorm Declared: OEP 183-DR-CA Del Norte, Humboldt, Shasta, Mendocino (12/22/64), Colusa, Glenn, Lassen, Plumas, Sierra, Siskiyou, Sonoma, Sutter, Tehama, Trinity (12/23/64), Amador, Butte, EI Dorado, Modoc, Nevada, Placer, Yuba (12/28/64), Alpine, Lake, Sacramento, Yolo (1/5/65), Marin (1/14/65) Federal: 12/29/64 Damage: public-$85.327 million; private-$I27.822 million; TOTAL-$213.149 million . 9/65 Major and Widespread Fires Declared: Marin, Napa, Placer, Solano, Sonoma (9/18/65) Federal: not declared no deaths Damage: not available; 113,766 acres and 41 bldgs. Destroyed 9/66 Riots Declared: San Francisco (9/27/66) Federal: not declared no deaths, 42 injuries Damage: not available . Taming Natural Disasters 76 March 17,2005 . . . 12/66 Earthslides Declared: Redwood City (San Mateo County) (12/16/66) Federal: not declared Damage: private-$l 00,000 8/68 Riots and Other. Conditions Declared: City of Richmond (Contra Costa) (8/2/68) Federal: not declared Damage: not applicable (w~orker strike) Winter' 69 1969 Storms Storms, flooding Declared: OEP 253-DR-CA Los Angeles, San Luis Obispo (1/23/69), Fresno, Inyo, Riverside, San Bernardino, Santa Barbara, Tulare, Ventura (1/25/69), Amador, EI Dorado; Kern, Kings, Madera, Modoc, Mono, Monterey, Orange, Placer, Sacramento, San Joaquin, Shasta, Solano, Stanislaus, Tuolumne (1/28/69), Mariposa, Merced (1/29/69), Calaveras, San Benito, Sierra (2/8/69), Contra Costa, Humboldt, Mendocino, Sonoma (2/1 0/69), Plumas, Tehama, Yuba (2/16/69), Butte, Marin, Yolo (3/12/69) Federal: 1/26/69 47 dead, 161 injured Damage: public-$185 million; private-$115 million; TOT AL-$300 million 12/69 Riots Declared: City of Berkeley (Alameda County) (2/5/69) Federal: not declared no deaths, 20 injuries Damage: not available Winter '70 Northern California Flooding Heavy Winds, Storms, Flooding Declared: OEP 283-DR-CA Butte, Colusa, Glenn, Lake, Lassen, Marin, Modoc, Plumas, Shasta, Siskiyou, Tehama, Trinity (1/27/70), Sutter, Yuba (2/3/70), Del Norte (2/10/70), Alameda, EI Dorado, Mendocino (3/2/70) Federal: 2/16/70 Damage: public-$19,659,078; private-$7,998,400; TOTAL-$27,657,478 Taming Natural Disasters 77 March 17, 2005 2/10/70 Slide Damage Caused by Heavy Rains and Storms Declared: City of Oakland (Alameda County) 2/10/70 (Tax Relief) Federal: not declared Damage: $11.5 million . 3/70 (beginning) Freezing Conditions Declared: Ag. area of Napa (5/1/70), Ag. area of Sonoma (5/19/70), Ag. area of Mendocino (6/8/70), Ag. community of San Joaquin (6/10/70), Ag. community of Lake (7/24/70) Federal: not declared Damage: Agricultural loss $19,749,200 4/70 Storms And Floods Declared: Contra Costa (4/1 0/70) (Tax Relief) Federal: not declared Damage: not available Fall '70 Statewide Fires Declared: OEP 295-DR-CA City of Oakland (Alameda County 9/24/70), Los Angeles, Ventura, . San Diego (9/28/70), Kern (10/1/70), San Bernardino (10/2/70), Monterey, Riverside (10/20/70), San Bernardino (11/14/70) Federal: 9/29/70 amended 11/25/70 to include San Bernardino 19 deaths Damage: public-$52,862,000; watershed-$24,826,000; private-$145,923,000 TOTAL- ) $223,611,000; 576,508 acres, 722 bldgs. San Bernardino-53,100 acres, 54 bldgs. . Spring '72 Freeze and Severe Weather Conditions Declared: Fresno, Kings, Tulare, Merced, Kern, Marlera,San Benito, Stanislaus, EI Dorado, Tehama, Placer, Nevada, San Joaquin (4/17/72), Colusa (5/22/72), Siskiyou, Modoc (5/22/72), Santa Clara (5/31/72) Federal: not declared Damage: crop loss-$111,517,2604/1 0/72 Drought Conditions Declared: Glenn, San Benito, Santa Clara (7/3/73) Federal: not declared Damage: agriculturalloss-$8 million . Taming Natural Disasters 78 March 17,2005 . . . 1/73 Coastal Flooding Heavy rains, winds, floods, and tidal action Declared: OEP 364-DR-CA Marin, San Luis Obispo (1/23/73), City of South San Francisco (San Mateo County 1/30/73), Santa Barbara, Solano (2/8/73), Ventura (2/28/73) Federal: 2/3/73 Damage: public-$5,291,350; private-$12,706,900; TOTAL-$17,998,250 2/73 Storms And Floods Declared: Colusa, Glenn, Napa, Placer, Sutter, Yuba (2/28/73) Federal: not declared Damage: public-$1.357 million; private-$507,000; TOTAL-$1.864 million 4/73 Storms and Floods Declared: City of Pacifica-San Mateo (4/11/73) (Tax Relief) Federal: not declared bamage: public-$450,000; private-$250,000; TOT AL-$700,000 5/73 Eucalyptus Tree Freeze Declared: Alameda, Contra Costa (4/4/73) Federal: 5/25/73 Damage: removal of approx. 2 million dead trees-$8-1 0 million 3/74 Gasoline Purchasing Problems Declared: Alameda, Contra Costa, Los Angeles, Orange, Riverside, San Mateo, Solano (2/28/74), Santa Clara (3/4/74), Ventura (3/10/74) Federal: not declared Damage: not applicable 1976 Drought Declared: Alpine, Calaveras, Colusa, Fresno, Glenn, Madera, Merced, San Diego, San Joaquin, Solano, Stanislaus, Sutter, Tuolumne (2/9/76), Alameda, Butte, Contra Costa, Kings, Los Angeles, Riverside, San Luis Obispo, Tulare, Yolo (2/13/76), Amador, Monterey, Napa, Nevada, San Benito, San Bernardino, Tehama (2/24/76), San Mateo (3/26/76), Marin (7/6/76) Federal: not declared Damage: 1976-$888.5 million; 1977-$1.775 billion; TOTAL-$2.664 billion Taming Natural Disasters 79 March 17,2005 r j 1979 . Gasoline Shortage Emergency Declared: Alameda, Contra Costa, Los Angeles, Marin, Monterey, Orange, Riverside, San Francisco, San Diego, Santa Clara, Santa Cruz, San Mateo, Ventura, San Bernardino (11/13/79), San Bernardino (amending boundaries 9/29/79), Monterey (7/13/79), San Bernardino (7/13/79), Riverside (6/22/79), San Bernardino (6/7/79), Monterey (6/7/79), Riverside, (amending boundaries 5/18/79), Monterey, Riverside (portion) (5/11/79), San Mateo, Santa Cruz (5/9/79), San Bernardino (portion 5/8/79), Alameda, Contra Costa, Los Angeles, Marin, Sonoma, Orange, Santa Clara, Ventura (5/8/79) Federal: not declared Damage: not applicable 1/80 Delta Levee Break Rain, high tides, strong winds, and flooding (Holland and Webb Levee breaks) Declared: FEMA 3078-EM-CA Contra Costa, Sacramento, San Joaquin (1/23/80) Federal: 1/23/80 Damage: public-$11,158,700; private-$1,479,500; agricultural-$3,887,195; TOTAL-$17,388,013 3/80 Storms Rain, winds, mud slides, and flooding Declared: Stanislaus, Monterey, Solano, Santa Cruz (3/5/80) . Federal: not declared Damage: *include figures from 2/82. public-$164,990,642; private-$75,755,500; agricultural- $75,894,675; TOTAL-$316,640,817. These four counties proclaimed in Feb. 1982 but were not included in the Presidential declaration. Summer '81 Mediterranean Fruit Fly Infestation Declared: Contra Costa (9/25/81), Los Angeles (8/25/81), San Benito (8/25/81), Stanislaus (8/14/81), Santa Cruz (8/13/81), San Mateo (8/8/81) Federal: not declared Damage: $22 million 6/81 Atlas Peak Fire Declared: Napa (6/24/81) Federal: not declared no deaths Damage: private-$11 million; watershed-$20 million; TOT AL-$31 million; 23,000 acres burned, 69 structures destroyed . Taming Natural Disa.sters. 80 March 17, 2005 .' . . . 1/82 1982 Winter Storms Heavy winds, rain, flooding, and mud slides Declared: FEMA 651-DR-CA Alameda, Santa Clara, Solano, San Joaquin (1/9/82), Contra Costa, Humboldt, Marin, San Mateo, Santa Cruz, Sonoma (1/5/82) Federal: 1/7/82 33 dead, 481 injured Damage: public-$ 10 1.400 million; private-$I72.450 million; TOTAL-$273.850 million; 256 homes and 41 businesses destroyed, 6259 homes and 1276 businesses damaged. 10/82 Rains Causing Agricultural Losses Declared: Fresno, Madera, Merced, Monterey, Kern, Tulare, Sacramento, San Joaquin, Solano, Stanislaus, Yolo (10/26/82) Federal: not declared Damage: agricultural $345,195,974 12/82 High Tides, Strong Winds, and Rains Declared: Contra Costa, Sacramento, San Joaquin (12/8/82) Federal: not declared Damage: public-$5,313,198; private-$1,651,800; TOTAL-$6,964,998 Winter '82-'83 Winter Storms Heavy rains, high winds, flooding, levee breaks Declared: FEMA 682-DR--CA Contra Costa, San Joaquin, Sacramento (12/8/82), Marin, Sari Mateo, Los Angeles, San Diego (1/27/83), Alameda, Orange, San Benito, Santa Barbara, Santa Clara, Santa Cruz, Shasta, Sonoma, Ventura, Trinity (1/31/83), Colusa, Lake, Mendocino, Monterey, San Luis Obispo, Solano, Yolo (2/7/83), Butte, Glenn, Kern, Kings, San Bernardino, Sutter Tehama, Merced (3/3/83), Del Norte, Fresno, Madera, Napa, Placer, Riverside, Stanislaus, Tulare (3/15/83), Humboldt, Mariposa, Nevada, Yuba (3/21/83) Federal 2/9/83 Damage: public-$151,185,870; private-$158,641,170; agricultural-$213,789,992; TOTAL- $523,617,032 12/83 Levee Failure, High Winds, High Tides, Floods, Storms, Wind Driven Water Declared: Contra Costa (12/9/83), Alameda (1/18/84) Federal: not declared Damage: public-$7 ,240, 785; private-$2.669 million; agricultural-$1 million; TOT AL- $10,909,785 Taming Natural Disasters 81 March 17, 2005 ~ . Morgan Hill Earthquake 6.2M ) Declared: Santa Clara Federal: FEMA 4043-EM-CA (4/25//84 . no deaths, 27 injuries Damage: public-$365,000; business-$1.7 million; private-$5.2 million; TOTAL-$7.265 million 6/85 Statewide Fires Declared: FEMA 739-DR-CA San Diego (7/1/85), City of Los Angeles (7/3/85), San Luis Obispo (7/8/85), Monterey, Santa Clara, Santa Cruz (7/9/85), Ventura (7/11/85) Federal: 4/25/84 3 deaths, 470 injured (124 civilians, 346 firefighters) Damage: public-$34,751,400; private-$30,094,464; TOTAL-$64,845,864; 375,000+ acres, 215 homes destroyed; 131 homes and businesses damaged; 71 miscellaneous structures and vehicles destroyed 2/86 (beginning) Storms Rains, winds, flooding, and mud 'slides 13 deaths, 67 injuries Declared: FEMA 758-DR-CA Humboldt, Napa, Sonoma (2/18/86), Glenn, Lake, Marin, Modoc, . Sacramento, Santa Clara, Santa Cruz, Solano, Yuba (2/19/86), Alpine, Amador, Butte, Calaveras, Colusa, EI Dorado, Lassen, Mendocino, Nevada, Placer, Plumas, San Joaquin, Sierra, Sutter, Tehama, Tuolumne, Yolo (2/20/86), Fresno, Madera, San Mateo (2/26/86), Alameda, Contra Costa, Del Norte, Trinity (3/4/86), Mono, San Benito, Shasta (3/12/86) Federal: 2/18/86 Damage: public-$157,987,493; private-$249,551,411; TOTAL-$407,538,904; 12,447 homes damaged; 1,382 homes destroyed; 967 businesses damaged; 185 businesses destroyed 9/88 Fires (4ger, Miller, and Fern) Declared: FEMA 815-DR-CA Shasta, Solano (9/20/88, beginning 9/17/88), Yuba, Nevada (9/13/88, beginning 9/11/88) Federal: 9/13/88 no deaths Damage: public-$31,247,534; business-$2,533, 100; private-$18,033,800; TOTAL-$31,247,534; 238 homes destroyed, 41 homes damaged; 29 businesses destroyed 8/89 Mediterranean Fruit Fly. Declared: Santa Clara (9/6/89) Federal: not declared Damage: not applicable-damage was avoided . Taming Natural Disasters 82 March 17, 2005 . . . 10/89 Lorna Prieta Earthquake 7.1M Declared: FEMA 845-DR-CA Alameda, Monterey, San Benito, San Mateo, Santa Clara, Santa Cruz, San Francisco (10/18/89), Contra Costa, Marin, City ofIsleton (10/23/89), City of Tracy, Solano (10/30/89) Federal: 10/18/89 63 deaths, 3,757 injuries (10/18/89) Damage: Alameda $1,479,104,500, Contra Costa $25 million, Monterey $108 million, San Benito $103.55 million, San Francisco $2 billion, San Mateo $292,941,001, Santa Clara $727.7 million; Santa Cruz $1.526 million, $500 million to $l billion damage in roads and bridges, $20 million in state government buildings. Total: $5.9 billion; 23,408 homes damaged, 3,530 businesses damaged, 1,018 homes destroyed, 366 businesses destroyed. 12/90 (beginning) Freeze Declared: FEMA 894-DR-CA Santa Cruz (12/28/90), Fresno, Glenn, Imperial, Kern, Mendocino, Monterey, Riverside, San Benito, San Bernardino, San Diego, San Mateo, Santa Barbara, Santa Clara, Solano, Sonoma, Tulare, Ventura (1/11/91), Alameda, Butte, Colusa, Los Angeles, Madera, Marin, Merced, Napa, San Joaquin, San Luis Obispo, Sutter, Yolo, Yuba (1/18/91), Stanislaus, Tehama (2/14/91, beginning 12/19/90) Federal: 2/11/91 Damage: public buildings-$2,330,353; utilities-$1,614,040; crop damage-$852,385,282; TOTAL-$856,329,675; 500 broken pipes, affecting 5,400 homes 10/91 East Bay Hills Fire Declared: Alameda County, 1 0/20/9 I ) Federal: 919 (10/22/91) 25 deaths, 150 injuries Damage: $1.7 billion; 3,354 family dwellings and 456 apartments destroyed 12/92 1992 Late Winter Storms Snow, rain, and high winds Declared: FEMA 979-DR-CA Alpine, Los Angels (2/19/93), Humboldt, Napa, Santa Barbara, Culver City and the City of Los Angeles (2/8/93, for event beginning 1/25/93), Contra Costa, Mendocino, Sonoma (1/25/93, for event beginning 1/25/93), Fresno, Imperial, Madera, Monterey, San Bernardino, Sierra, Tehama; Trinity, and Tulare (1/21/93, for event beginning 1/19/93), Modoc, Orange, Riverside (1/19/93, for event beginning 1/15/93), Lassen, Siskiyou (1/15/93, for event beginning 1/13/93), Plumas (1/13/93, for event beginning 1/12/93), San Diego (1/7/93, for event beginning 1/7/93) Federal 1/15/93 20 deaths, 10 injuries Damage: public property-$32,215, $600 million Taming Natural Disasters 83 March 17,2005 ~ / 1/95 . Severe Winter Storms Declared: FEMA 1044-DR-CA Los Angeles, Orange (1/6/95), Humboldt, Lake, Sonoma (1/9/95), Butte, Colusa, Contra Costa, Del Norte, Glenn, Kern,L~ssen, Mendocino, Modoc, Monterey, Napa, Placer, Plumas, San Luis Obispo, Santa Barbara, Santa Clara, Santa Cruz, Tehama, Ventura, Yolo, Yuba (1/10/95), Alpine, Amador, Nevada, Riverside, Sacramento, San Bernardino, San Mateo, Shasta, Sutter, Trinity (1/11/95), San Diego (1/13/95), Alameda, Marin (1/14/95), Fresno, Kings (l/17/95), EI Dorado (2/15/95), Madera, Solano (2/17/95), Siskiyou (3/14/95) Federal-l 044 (1/13/95) 11 deaths Damage: public-$299.6 million; individual-$128.4 million; businesses $58.4 million; highways- $158 million; ag-$97 million; TOTAL-$741.4 million; damage to homes: major-I,883; minor-4, 179; destroyed-370. 2/95 Late Winter Storms Declared: FEMA 1046-DR-CA 57 counties (all except Del Norte). Federal: 1/1 0/95 17 deaths Damage: public property-$190.6 million; individual-$122.4 million; business-$46.9 million; highways-$79 million; ag-$651.6 million; TOTAL-approximately $1.1 billion; damage to homes: major-l ,322; minor-2,299; destroyed-267 . 12/96 to 1/97 January 1997 Floods . Declared: Alpine, Amador, Butte, Colusa, Del Norte, EI Dorado, Glenn, Humboldt, Lake, Lassen, Modoc, Napa, Nevada, Plumas, Sacramento, San Joaquin, Sierra, Siskiyou, Solano, Sonoma, Sutter, Tehama, Trinity, Yuba (1/2/97); Calaveras, Madera, Mono, Monterey, Placer, San Benito, San Luis Obispo, ,San Mateo, SaI~ta Cruz, Shasta, Stanislaus, Tuolumne, Yolo (1/3/97); Contra Costa, Fresno, Marin, Tulare (1/5/97); Mariposa (l/6/97); Merced, Santa Clara (1/10/97); Alameda, San Francisco (1/19/97); Kings, San Luis Obispo (1/31/97). Federal: all 48 counties listed above 8 deaths Damage: $1.8 billion Add: 300 square miles ofland flooded; 23,000 homes, 2,000 busineses damaged or destroyed. . Taming Natural Disasters 84 March 17,2005 . . . 2/2/98 EI Nino Declared: Alameda, Amador, Butte, Calaveras, Colusa, Contra Costa, Fresno, Glenn, Humboldt, Kern, Kings, Lake, Los Angeles, Marin, Mendocino, Merced, Monterey, Napa, Orange, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tulare, Ventura, Yolo, Yuba. Federal: All above except Kings and Siskiyou counties 17 deaths Damage: $550 million 9/3/00 Napa Earthquake Declared: Napa Federal: not provided by OES Damage: not provided by OES Taming Natural Disasters 85 March .17, 2005 - .::..::::.' ,.' " . . . TOWN OF TIBURON STAFF REpORT ITEM NO. LO To: MAYOR AND MEMBERS OF THE TOWN COUNCIL From: ANN R. DANFORTH, TO~N ATTORNEY SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT~ ~ Subject: ECONOMIC EXCEPTIONS: FILE Z2005-01; CONSIDER AN ORDINANCE AMENDING MUNICIPAL CODE CHAPTER 16 (ZO . G) TO ESTABLISH AN ECONOMIC EXCEPTION PROCESS Date: October 5, 2005 Reviewed by: BACKGROUND At its meeting of September 21,2005, the Town Council introduced and held first reading of an ordinance establishing an Economic Exception procedure within the Town's Municipal Code. The item now comes to the Town Council for a final public hearing, second reading and adoption. If adopted, the Ordinance would take effect 30 days thereafter. RECOMMENDATION The Council should conduct a public hearing on the proposed ordinance and then adopt it. The requisite steps would be as follows: 1. By motion, read the ordinance by title only; 2. Pass second reading and adopt the ordinance by roll call vote. EXHIBITS A. Draft Ordinance. B. Staff report and attachments from September 21, 2005 meeting. S:/admin/tc/staffreports/economic exception report JO-5-05,doc . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 . 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 . 43 44 ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005, September 7,2005, September 21,2005, and October 5,2005, and has heard and considered public testimony on the proposed Ordinance. B. . The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TOMUNICIP AL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16- 7.1. Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions.and other measures that regulate land use for the protection and promotion of A the public health, safety, general welfare and the environment (collectively, "Land Use EXHIBIT NO. Town ofTiburon Ordinance No. N.S Effective --/--/2005 1 1 Regulations") in a manner that treats property owners fairly and in a manner consistent 2 with state and federal law. This article authorizes the Town to grant an Economic. 3 Exception relaxing the application of the Town's Land Use Regulations to the extent 4 necessary to avoid an unconstitutional taking under the United States or California 5 Constitutions. . 6 16-7.2. Application for Economic Exception. 7 (a) If any applicant believes that strict application of the Town's Land Use 8 Regulations would not permit an economically viable use of his or her property, or would 9 otherwise effect an unconstitutional taking of property, the applicant may apply for an 10 Economic Exception. The application for an Economic Exception shall include the 11 entirety of all parcels that are geographically contiguous in which the applicant holds an 12 interest at the time of the application. 13 (b) The applicant shall be required to fund all costs associated with 14 independent peer review studies and reports commissioned by the Town of any 15 information submitted by the applicant, or the independent preparation of such 16 information by the Town or its consultants, and may be required to submit an advance 17 deposit upon application to cover such costs. 18 (c) Any applicant that does not submit a request for an Economic Exception 19 as set forth in section 16-7.3 shall be deemed to have waived any objections based on the 20 Takings clauses of the United States and California Constitutions to the strict application 21 ofthe Town's Land Use Regulations, including, without limitation, any condition of 22 approval, mitigation measure or other measure imposed to implement said regulations. . 23 16-7.3. Time for Filin2 Application. 24 (a) Economic Exception requests should be filed as early as possible in the 25 planning and/or permit process. 26 (l) If the Economic Exception request is based on the facial 27 application of the Town's Land Use Regulations, the applicant shall applyfor the 28 Economic Exception before or in conjunction with the first land development 29 application submitted for the property. 30 (2) The applicant shall apply for an Economic Exception in 31 conjunction with the first land development application submitted for the property 32 ifit is reasonably foreseeable that the Town's Land Use Regulations will require a 33 denial or a condition of approval, mitigation measure or other measure to be 34 imposed which the applicant believes will effect an unconstitutional taking of 35 property. 36 (b) Notwithstanding subsection 16-7.3(a)(I), if the Town Council is the decision- 37 making body for the land development application and the applicant's Economic 38 Exception request is based on a denial or on a condition of approval, mitigation measure 39 or other measure imposed by the Town Council, the applicant shall submit the application 40 for an Economic Exception within thirty (30) days of the Town Council's action on the 41 land development application. The Council shall retain jurisdiction over the project after .,. Town ofTiburon Ordinance No, NS. Effective u/u/2005 2 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ., 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 . 40 its initial decision on the application for the sole purpose of considering a request for an Economic Exception, which jurisdiction shall e?Cpire at the end of the 30-day period ifno such request is filed. This subsection 16-7 .3(b) shall not apply if the denial, condition of approval, mitigation measure or other measure was reasonably foreseeable when the applicant filed its first land development application forthe property. (c) Notwithstanding subsection 16-7.3(a)(1), if the Planning Commission, Design Review Board, or Town Official is the decision-making body for the land development .application and the applicant's Economic Exception request is based on a denial or on a condition of approval, mitigation measure or other measure imposed by the Planning Commission, Design Review Board, or Town Official, the applicant shall submit the applicatio~ for an Economic Exception within ten (10) days of the decision-making body's action on the land development application. The request for an Economic Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's regular appeal process for contesting zoning permit decisions as set forth in section 16- 3.8 of this Code. The applicant may submit supporting information for the Economic Exception request for a period ofthirty (30) days following the decision being appealed. Scheduling of the Town Council hearing on the appeal and the request for Economic Exception shall be at a date that the Director of Community Development determines will allow sufficient time for the Town to analyze the issues raised by the appeal and the Economic Exception application. This subsection 16-7 .3( c) shall not apply if the denial, condition of approval, mitigation measure or other measure was reasonably foreseeable when the applicant filed its first land development application for the property. (d) For purposes of this section, "first land development application" shall mean the first land development application filed in connection with a particular project. 16-7.4. Required Information. (a) The applicant shall provide all of the following information within thirty (30) days of the decision on which the Economic Exception request is being filed: (1) The date the applicant purchased or otherwise acquired the property, and from whom. (2) The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price I in addition to the property. (3) The fair market value of the property at the time the applicant acquired it, describing the basis upon which the fair market value is derived, including any appraisals done at the time. (4) The general plan, zoning or similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations that occurred after acquisition. (5) A description of any development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that Town ofTiburon Ordinance No, NS Effective --/--/2005 3 1 2 applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. . 3 (6) A description of any change in the size of the property since the time 4 the applicant acquired it, including a discussion of the nature of the change, the 5 circumstances and the relevant dates. 6 (7) A statement as to whether the applicant has sold or leased a portion of, 7 or interest in, the property since the time of purchase, indicating the relevant 8 dates, sales prices, rents, and nature of the portion or interests in the property that 9 were sold or leased. 10 (8) A title report for the property, as well as copies of any underlying n documents referenced therein, and copies of any litigation guarantees or similar 12 documents that affect or limit the use of all or a portion ofthe property. 13 (9) A statement describing any offers to buy all or a portion of the 14 property which the applicant solicited or received, including the approximate date 15 of the offer and offered price. 16 (10) An accounting of the applicant's costs associated with the ownership 17 ofthe property, annualized for each of the last five (5) calendar years, including 18 property taxes, property assessments, debt service costs (such as mortgage and 19 interest costs), and maintenance, operation and management costs. 20 21 22 23 24 (11) Apart from any rent received from the leasing of all or a portion of the property, an accounting of any income generated by the use of all or a portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that gen~rate or have generated such income. . 25 (12) A brief written explanation why the application is necessary to avoid 26 an unconstitutional taking. 27 (b) The Director of Community Development may, in his reasonable discretion, 28 require the submittal of additional information that he determines is necessary to analyze 29 the application. 30 (c) The Director of Community Development may, in his reasonable discretion, 31 grant additional time for the applicant to submit the required information. 32 16-7.5. Economically Viable Use Determination~ Economic Exception. 33 (a) The Town Council shall hold a public hearing on any application for an 34 . Economic Exception. The Town Council shall grant an Economic Exception from strict 35 application of the Town's Land Use Regulations if the Town Council makes the 36 following findings: 37 38 39 , (1) Based on the economic information provided by the applicant or consultants, and considering any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of . Town ofTiburon Ordinance No NS Effective --/--/2005 4 ......../ . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 . 19 20 21 22 23 24 25 26 27 28 . the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes significant environmental impacts. (b) The Town Council's findings shall identify the evidence supporting the findings. SECTION 3. . SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such deci~ion shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. ' SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This Ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on ,2005, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on ,2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: 29 NOES: 30 ABSENT: 31 32 33 34 35 36 37 38 MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town ofTiburon Ordinance No. NS. Effective n/n/2005 5 TOWN OF TIBURON STAFF REPORT . ITEMNO.1L ,-/ To: From: Subject: MAYOR AND MEMBERS OF THE TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY , . /t~'// SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT Y!~/tZ ECONOMIC EXCEPTIONS: FILE Z2005-01; CONSIDER ORDINANCE . . AMENDING MUNICIPAL CODE CHAPTER 16 (ZONI T ESTABLISH 'AN ECONOMIC EXCEPTION PROCESS September 21, 2005 REVIEWED BY: Date: BACKGROUND Takings claims pull the Town into one of the mostcontentiousand unpredictable areas ofland use law. Litigation ofthese cases can be protracted, costly and of uncertain outcome. In response to this predicament, the Institute for Local Self Government developed a model ordinance that creates a procedure designed to both reduce the number of takings claims against . the adopting public agency and ensure that before taking action on a project, the agency has before it all the facts relevant to a potential takings claim. At the Council/Staff Retreat in February of this year, the Council directed staff to prepare a similar ordinance for the Council's consideration. ' Staff presented the first draft to the Council on June 15,2005. At this hearing, the Cotlncil voiced concerns about the practical implementation of the Economic Exception process. The June 15th draft ordinance had relatively tight. timeframes for the applicant to submit information supporting their claim that strict application of the Town's land use regulations would result in an unconstitutional taking of property. These timelines reflected the State Permit Streamlining Act, which gives the Town only a limited period of time to approve or deny a project application. However, Councilmembers believed that as drafted, the ordinance might not allow sufficient time for the applicant to prepare the required information or for the Town to analyze the application. Staff prepared a revised ordinance for the Council's consideration at its June 29th meeting. This draft addressed the timing problem by authorizing the Community Development Director to grant extensions to the ordinance's deadlines for filing supporting information. The Council continued the item without discussion. On September ih, Town staff brought the draft ordinance. back to Council, after incorporating the approach suggested by Vice Mayor Smith. Earlier that same afternoon, the Town Attorney received a call from Fran Layton, of Shute, Mihaly & Weinberger, who asked for several changes. . (l. EXHJBIT NO.Q . . . We thought that the changes were sufficiently helpful to warrant inclusion, despite their "last- minute" submission.l However, the Council stated that they needed more time to review the new language. They also requested that the staff present a new report describing the most recent changes and explaining the advantages and disadvantages of adopting the ordinance. /' ANALYSIS 1. Chan2:es Since June 29. 2005 The initial timing problem arose from the constraints of the Permit Streamlining Act. The Act requires Town action on the merits of most project applications within specified deadlines. These deadlines are often difficult to meet, particularly when a project requires an environmental impact report. If the applicant's takings claim arises from a condition of approval, mitigation measure or other measure imposed during the application process, there may be very little time remaining for the Town to consider a request for an Economic Exception. The June 15th draft accordingly contained relatively tight timeframes for presenting and processing a request for an Economic Exception. The Council was concerned that these timeframes would not allow adequate time for the applicant to present relevant information or for the Town to analyze it; the Council continued the item, directing staff to amend the draft ordinance to allow more time. In response, the June 29th draft empowered the Director of Community Development to grant extensions as needed to insure fairness to the applicant and adequate Town evaluation of the request. At the June 29th hearing, the Council elected to continue the matter further; Vice Mayor Smith was absent that evening and his fellow Council members wanted his input on the ordinance. The Town Attorney discussed the ordinance with Vice Mayor Smith, who recommended postponing the Economic Exception process until after the Town had made its decision on the merits of the project, thereby avoiding the timing problems created by the Permit Streamlining Act. Sections 16-7.2 and 16- 7.3 were largely re-written for the September 7th draft to reflect these changes. - The revised draft allowed applicants to apply for an Economic Exception after the Town had made a decision on the merits of the project. After that point, the Permit Streamlining Act deadlines no longer apply. If the Council is the decision-making body, the applicant would have 30 days to apply for an Economic Exception. If the Planning Commission, Design Review Board or Town Official is the decision-making body, the process would be similar to a zoning permit appeal, except that this Ordinance provides a longer period (30 days) for submitting supporting information for the Economic Exception application. The changes added on Septeinber ih are not substantive in nature., At Ms. Layton's suggestion, the ordinance explicitly provides that the Council retains jurisdiction over project applications. after making a decision on the merits for the purpose of deciding Economic Exception requests. This is a technical legal modification, designed to defeat a possible form oflegal attack on a 1 There was some criticism at the meeting of the late submission of the recommended changes. In fairness to Ms. Layton, we should note that the draft ordinance was not publicly available until late in the day on Friday, . September 2nd, therefore it would have been difficult to submit comments significantly in advance of the meeting. Tiburon Town Council Staff Report . 9/21/2005 2 . Council decision. The second change clarifies that applicants are encouraged to apply for Economic Exceptions are early as possible in the development process; the new post-decision procedure is intended only for conditions, mitigation measures, or other measures that are not reasonably foreseeable given the Town's land use regulations. A few minor changes have been made following the September 7th meeting. These are primarily formatting changes, but one is the addition of a section authorizing the Director of Community Development to grant an applicant additional time (beyond the 30 days) to submit the required information and materials for an Economic Exception application (section 16-7 A( c)). This addition seemed reasonable and shows the Town's interest in providing full disclosure of information prior to a final decision. There was some concern at the June 15th meeting that the two findings required for granting an Economic Exception do not provide sufficient protection to the Town's environmental resources, such as ridgelines. These findings have been modified to read as follows: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application ofthe Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes significant environmental impacts. Staff concludes that the General Plan is highly protective of such resources; the ordinance requires maximum compliance with the General Plan and accordingly will give priority to preserving the Plan's protection of these resources. (2) . A final draft version of the ordinance (incorporating all changes since June 29) is attached as Exhibit A. A red-lined version showing changes made since June 29 is attached as Exhibit B. 2. Advanta2"es and Disadvanta2"es of the Ordinance The proposed Ordinance would require property owners to request an Economic Exception before making a takings claim and, through the Exception process, the Town would have the opportunity to review all the facts and reasoning. relevant to the potential claim. This would enable the Town to fairly balance the rights ofthe property owner with the Town's interest in enforcing its land use regulations. The Town would be able to tailor its regulatory programs to avoid an unjust result. Moreover, if the Town finds that normal application of its regulations will not constitute a taking, the Ordinance would assure that the administrative record will contain enough facts to enable the agency to prevail at an earlier stage oflitigation. This is potentially a . very significant savings in litigation costs. Tiburon Town Council Staff Report 9/21/2005 . 3 . . . The Council should note that these types of ordinances are relatively untested. However, based on existing takings jurisprudence, we believe that the Ordinance is likely to reduce the incidence of takings claims in Tiburon, and enhance the likelihood of a successful outcome in those cases that are not resolved through the Exception process. The Cities ofMalibu, Lafayette and Napa have somewhat similar procedures, which have not been tested in court as far as staff has been able to ascertain. The City of Livermore has a related process that allows the City Attorney to decide whether a regulatory application constitutes a taking. This process resulted in the City's successful defense of a refusal to grant an exception to its scenic route protection policies. Nevertheless, in the absence of any appellate court decisions upholding an Economic Exception, the potential advantages must be characterized as uncertain. On the other hand, the disadvantages of the ordinance appear to be minimal. The Town has faced few takings claims in , the past 20 years, thus it does not appear likely that the ordinance will create a significant' administrative burden. RECOMMENDATION The Council should conduct a public hearing on the revised draft ordinance, and then consider whether it wishes to adopt an ordinance establishing an Economic Exception procedure. If it finds in the affirmative, the Council should: 1. 2. By motion, read the ordinance by title only; and Pass first reading of the ordinance by roll call vote. EXHIBITS A. Draft Ordinance (clean copy) B. Draft Ordinance (red-lined copy) C. Staff Report from September 7,2005 (with draft ordinance exhibit only) D. Staff Report from June 29, 2005 (with draft ordinance exhibit only) E. Staff Report from June 15, 2005 (with draft ordinance exhibit only) .J S :/admin/tc/staff reports/economic exception report 9-21-05 .doc Tiburon Town Council Staff Report 9/21/2005 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 ORDINANCE NO. N.S. . AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE. REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town ofTiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005, September 7,2005, September 21,2005, and ,2005, and has heard and considered public testimony on the proposed Ordinance. B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. . E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code' to read as follows: 39 Article VII. Economic Exceptions 40 41 16-7.1. Purpose. 42. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, 43 resolutions and other measures that regulate land use for the protection and promotion of 44 the public health, safety, general welfare and the environment (collectively, "Land Use . Town ofTiburon EXmBIT ~o.A Ordinance No. NS Effective --/--/2005 . . . 1 Regulations") in a manner that treats property owners fairly and in a manner consistent 2 with state and federal law. This article authorizes the Town to grant an.Economic 3 Exception relaxing the application of the Town's Land Use Regulations to the extent 4 necessary to avoid an unconstitutional taking under the United States or California 5 Constitutions. 6 16-7.2. Application for Economic Exception. 7 (a) If any applicant believes that strict application of the Town's Land Use 8 Regulations would not permit an economically viable use of his or her property, or would 9 otherwise effect an unconstitutional taking of property, the applicant may apply for an 10 Economic Exception. The application for an Economic Exception shall include the 11 entirety of all parcels that are geographically contiguous in which the applicant holds an 12 interest at the time of the application. 13 (b) The applicant shall be required to fund all costs associated with 14 independent peer review studies and reports commissioned by the Town of any 15 information submitted by the applicant, or the independent preparation of such 16 information by the Town or its consultants, and may be required to submit an advance 17 deposit upon application to cover such costs. 18 19 20 21 22 23 (c) Any applicant that does not submit a request for an Economic Exception as set forth in section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the United States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. 16-7.3. Time for Filinl2: Application. 24 (a) Economic Exception requests should be filed as early as possible inthe 25 planning and/or permit process. 26 (1) If the Economic Exception request is based on the facial 27 application oftne Town's Land Use Regulations, the applicant shall apply for the 28 Economic Exception before or in conjunction with the first land development 29 application submitted for the property. 30 (2) The applicant shall apply for an Economic Exception in 31 conjunction with the first land development application submitted for the property 32 if the Town's Land Use Regulations ifit is reasonably foreseeable that the 33 Town's Land Use Regulations will require a denial or a condition of approval, 34 mitigation measure or other measure to be imposed which the applicant believes 35 will effect an unconstitutional taking of property. 36 37 38 39 40 41 (b) Notwithstanding subsection 16-7.3(a), if the Town Council is the decision- making body for the land development application and the applicant's Economic Exception request is based on a denIal or on a condition of approval, mitigation me~sure or other measure imposed by the Town Council, the applicant shall submit the application for an Economic Exception within thirty (30) days of the Town Council's action on the land development application. The Council shall retain jurisdiction over the project after " Town ofTiburon Ordinance No. N.S. Effective --/--/2005 2 1 its initial decision on the application for the sole purpose of considering a request for an 2 Economic Exception, which jurisdiction shall expire at the end of the 30-day period ifno 3 such request is filed. This subsection 16-7 .3(b) shall not apply if the denial, condition of 4 approval, mitigation measure or other measure was reasonably foreseeable when the . 5 applicant filed its first land development application for the property. 6 (c) Notwithstanding subsection l6-7.3(a), if the Planning Commission, Design 7 Review Board, or Town Official is the decision-making body for the land development 8 application and the applicant's Economic Exception request is based on a denial or on a 9 condition of approval, mitigation measure or other measure imposed by the Planning 10 Commission, Design Review Board, or Town Official, the applicant shall submit the 11 application for an Economic Exception within ten (10) days of the decision-making 12 body's action on the land development application. The request for an Economic 13 . Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's 14 regular appeal process for contesting zoning permit decisions as set forth in section 16- 15 3.8 ofthis Code. The applicant may submit supporting information for the Economic 16 Exception request for a period of thirty (30) days following the decision being appealed. 17 Scheduling of the Town Council hearing on the appeal and the request for Economic 18 Exception shall be at a date that the Director of Community Development determines 19 will- allow sufficient time for the Town to analyze the issues raised by the appeal and the 20 Economic Exception application. This subsection 16-7.3(c) shall not apply if the denial, 21 condition of approval, mitigation measure or other measure was reasonably foreseeable 22 when the applicant filed its first land development application for the property. 23 (d) For purposes of this section, "first land development application" shall mean 24 the first land development application filed in connection with a particular project. . . 25 16-7.4. Required Information. 26 (a) The applicant shall provide all of the followip.g information within thirty 27 (30) days of the decision on which the Economic Exception request is being filed: 28 (1) The date the applicant purchased or otherwise acquired the property, 29 and from whom. 30 (2) The purchase price paid by the applicant for the property and a 31 description of any consideration that the applicant received for that purchase price 32 in addition to the property. .' 33 (3) The fair market value of the property at the time the applicant acquired 34 it, describing the basis upon which the fair market value is derived, including any 35 appraisals done at the time. 36 (4) The general plan, zoning or similar land use designations applicable to 37 the property at the time the applicant acquired it, as well as any changes to these 38 designations that occurred after acquisition. 39 .40 (5) A description of any development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that . Town ofTiburon Ordinance No. N.s. Effective --/--/2005 3 . . . 1 2 applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. 3 (6) A description of any change in the size ofthe property since the time 4 the applicant acquired it, including a discussion of the nature of the change, the 5 circumstances and the relevant dates. 6 (7) A statement as to whether the applicant has sold or leased a portion. of, 7 or interest in, the property since the time of purchase, indicating the relevant 8 dates, sales prices, rents, and nature of the portion or interests in the property that 9 were sold or leased. 10 (8) A title report for the property, as well as copies of any underlying 11 documents referenced therein, and copies of any litigation guarantees or similar 12 documents that affect or limit the use of all or a portion ofthe property. 13 (9) A statement describing any offers to buy all or a portion of the 14 property which the applicant solicited or received, including the approximate date 15 of the offer and offered price. 16 (10) An accounting of the applicant's costs associated with the ownership 17 of the property, annualized for each of the last five (5) calendar years; including 18 . property taxes, property assessments, debt service costs (such as mortgage and 19 interest costs), and maintenance, operation and management costs. 20 21 22 23 24 (11) Apart from any rent received from the leasing of all or a portion of the property, an accounting of any income generated by the use of all or a portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such income. 25 (12) A brief written explanation why the application is necessary to avoid 26 an unconstitutional taking. 27 (b) The Directo~ of Community Development may, in his reasonable discretion, 28 require the submittal of additional infonnationthat he determines is necessary to analyze 29 the application. 30' (c) The Director of Community Development may, in his reasonable discretion, 31 grant additional time for the applicant to submit the required information. 32 16-7.5. Economicallv Viable Use Determination~ Economic Exception. 33 . (a) The Town Council shall hold a public hearing on any application for an 34 Economic Exception. The Town Council shall grant an Economic Exception from strict 35 application of the Town's Land Use Regulations if the Town Council makes the 36 following findings: 37 38 39 (1) Based on the economic information provided by the applicant or consultants, and considering any other relevqnt evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of Town ofTiburon Ordinance No. NS 4 Effective --/--/2005 1 2 the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. . 3 (2) The Economic Exception granted will result in a project which, to the 4 maximum extent possible while avoiding an unconstitutional taking, (a) complies 5 with the Town's General Plan and Zoning Ordinance and (b) minimizes 6 significant environmental impacts. 7 (b) TheTown Council's findings shall identify the evidence supporting the 8 findings. 9 SECTION 3. SEVERABILITY. 10 11 " If any section, subsection, sentence, clause or phrase of this chapter is for any 12 reason held by a court of competent jurisdiction to be invalid, such decision shall not 13 affect the validity of the remaining portions of this chapter. The Town Council declares 14 that it would have passed this chapter and each section, subsection, sentence, clause and 15 phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or 16 phrases be declared invalid. 17 SECTION 4. EFFECTIVE DATE. 18 This Ordinance shall take effect and be in force thirty (30) days after the date of 19 passage, and before the expiration of fifteen (15) days after passage by the Town Council, 20 a copy of the ordinance shall be published with the names of the members voting for and 21 against it at least once in a newspaper of general circulation in the Town ofTiburon. 22 23 This Ordinance was introduced at a regular meeting of the Town Council of the 24 Town of Tiburon on ,2005, and was adopted at a regular meeting of the Town 25 Council of the Town of Tiburon on ,2005, which was noticed pursuant 26 to Government Code Section 65090, by the following vote: 27 . 28 AYES: 29 NOES: 30 . ABSENT: 31 32 MILES BERGER, MAYOR 33 TOWN OF TIBURON 34 ATTEST: 35 36 37 38 DIANE CRANE IACOPI, TOWN CLERK . Town ofTiburon Ordinance No. NS. Effective --/--/2005 5 . ./ . . ORDINANCE NO. N.8. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TffiURON MUNICIPAL CODE, REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: . SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005, September 7, 2005, S_~l?J~m12~'r 2],2005. and ,2005, and has heard and considered public testimony on the proposed Ordinanc~.... B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection ofthe public health, safety, and welfare. D. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section l506l(b)(3) of the CEQA Guidelines. SECTION L AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16-7.1. Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land Use Town ofTiburon Ordinance No. NS Effective --/--/2005 ( --) . Deleted. l.____~________ .ro~~~~__==~_=~] EXHIBIT NO. B Regulations") in a manner that treats property owners fairly and in a manner consistent with state and federal law. This article authorizes the Town to grant an Economic Exception relaxing the application of the Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. 16-7.2. Application for Economic Exception. . ~Jf any applicant believes that strict application ofilie Town's Land Useu.lFonnatted: l!1dent: First line: O.5',-J Regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. Ib) The applicant shall be required to fund all costs associated with independent peeJ.:Js;~jt;~v sl1illi_~_l!.!l~ilS;l20rts commissioned bv the Town of any infomlation sLlbmittcdI2YJ~_~!QI21 icunt. or tll~' independent pre:paration of such information bv the 'Town or its cOllsultants. andmav be required to submit an advance deposit upollJillI2!1;mi9!l to cQ:Y~L-,,!lCh costs, ~Any applicant that does not submit a request for an Econotnic Exception as set forth in section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the United States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. (b) The Director may, in his sole discretion to enSl:H'e the fairness of the precess, ~lmt eRtensioFls of any deadlines in this :\rticle in order to aBo,\' the applicant a reasenal31e amount of time to prepare the materials required under Section 16 7. q fer the llflplieatien and/or to allow the Town enough time to analyze the application. However, if any slieh eRtension, ',vould imperil the Town's ability to comply ......4ili oilier deadlines established by law (including, without limitation, ilie deadlines contained in the Califerma Pennit Streamlining Act and the California EBvif01111WRtal Quality ,\ct), the Director may require the applicant to grant an CJ(tension to such other deadlines. T_ __ 16-7.3. Time for Filing Application. (a) The applicant shall apply for the Economic EJ(coption as early as possible in the preeess of obtaining land use approvals for the subject property, i.e., bcfore or in conjunction '.'lith the first land development application submitted for the property. (b) Notwithstanding subsection Hi 7.3(a), iftne Planning Commission is the decision making body for the land deyelopment applicationaRd the awlieant's Eeellamie EJlceptien request is based on a condition of approval, mitigation measrne or oilier measure imposed by the Planning Commission, the applicant shall submit the application [-or an Economic EJlception within ten (10) days ofilie Planning Commission's action on Town ofTiburon Ordinance No. NS. Effective __/n/2 00 5 . Deleted: The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the Town of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon application to cover such costs. 2 . ~ . . .. the land deyelopment application. The request for an Economic Exception shall be submitted using the Town's regular appeal process for contesting zoning permit decisions by the Planning Commission. ( c) If the Planning Commission acts on the land development application as an advisory body and the applicant's Economic Exception request is based OR a oondition of approval, mitigation measure or other measure reeommended by the Planning . CoHlB'l.-ission, the applicant shall submit the request for an Economic EJweption ';vithin ten (10) days ofthc Planning Commission's making its recommendation on the merits of the . land development application. The Town Council shall consider the request for an Economic EJ(ception prior to taking action on the merits of the land development application. (d) If the request for Economic Exception is based on a condition of approval, Ini.tigation measure or other measure first proposed at a meetmg of the Town Council, the applicant may submit the application for an Economic Exception within _ U days of receiving constructive notice of said proposal. (a) Economic Exception requests should be filed as early as possible in the planning.and/or ll.t';]'llmprocess. ill_.=I{th.eEc.ol1()n:llc .~J:<:C?~pti()n .r<?q':l<?~t. is.ll<lse~ (}Il tl:1~ .fac;ial.... application of the Town's Land Use Regulations, the applicant shall apply for the Economic Exception before or in conjunction with the first land development application submitted for the property. .,...:..:~: . ... ) ) .' {Deleted-;--... .. -..-.....-.....-..--.......-._........_.J (2) . . ~rheapplicallt shal1~IJply [()r an ~(;.oll()IIIic~)(c~p_tiorlin.. ... .... _ coniunction wit]I the first land development application submitted for the property" Deleted: oUldalso -- .. . ..- --'1 ~~:~sz~~;~lftf~:~~i~~;~~~~~i!:ii'J:~t:~ ~:~~~~J;~~th~I~;~i~~i:itl~;uir.~.a..\:. " ~:S:~k~~~:~~ :~~~j~~C::Wi~ "]' I " the first \and development application imposed whichthe applicant be ieves..will effect an unconstitutional taking of '::~.... submitted for the property property, \:..<: Deleted: will '..J (b) Notwithstanding subsection 16-7.3(a), if the Town Council is the decision~ '.\' Deleted: y._ _..1 making body for the land development application and the applicant's Economic \' Inserted: will foreseeabl J Exception request is based on a denial or on a condition of approval, mitigation measure Inserted: y 1 or other measure imposed by the Town Council, the applicant shall submit the application for an Economic Exception within thirty (30) days of the Town Council's action on the land development application. The Council shall retain iurisdiction over the proiect after its initial decision on the application for the sole purpose of considering a request for an &C<>n'()Il1icS2<C?eIJtio.11: \Vhich, it~l~sdicti()]~. ~~alI ~)(p~r~~~_ the. e.n~. orth-~ }O~~a YReTi.o~ifn(). . { Deleted: e such request is filed. This subsection 16-7 .3(b) shall not apply ifthedenial.~O~dition of" ". { Deleted: e approval, mitigation measure or other measure was reasonablyJ()r~se~~~le when th~_._......... ...{ Deleted: e applicant;.fil~d itsfirst lanc1Hdevel()pll1~n~appIic;ati()~1.Kortl1e.pr(}perty:w.<:..{ Inserted: e foreseeable wben the .. (C) Notwithstanding subsection 16-7.3(a), if the Planning Commission, Design ';<:'; Deleted: project... . ......._... Review Board, or Town Official is the decision-making body for the land development '.::-: Deleted: use application and the applicant's Economic Exception request is based on a denial or on a \,: Inserted: project filed its fIfSt land condition of approval, mitigation measure or other measure imposed by the Planning Inserted: use application for the Commission, Design Review Board, or Town Official, the applicant shall submit the property. ----I ) J ) '1 ] "] J Town ofTiburon Effective -./--/2005 3 Ordinance No. NS . -1 ~ The applicant shall provide all of the following information within thirty .., (30) days of the decision on which the Economic Exception request is being filed: Inserted: use application for the property. , \:', (d) For purposes of this \.' Deleted: s 1. The date the applicant purchased or otherwise acquired the property, and from whom. 2. The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the property. 3. The fair market value of the property at the time the applicant acquired it, describing the basis upon which the fair market value is derived, including any appraisals done at the time. 4. The general plan, zoning or similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations that occurred after acquisition. 5. A~19scril2tiQlLi~.Ll!ny development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. 6. AJJescript!.sliLQ.JJ!ny change in the size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. 7. A ?lill~men t as.tQ...\Vh.l?!!tl?! the.liPpli~~tl1a~_ .s_oJci()!~l?~,se_d _ a p~rt:i~n_ ~f1_. _. ' .",_ - .-- { Deleted: discussicin of or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leased. . ~ Town ofTiburon Ordinance No, N.s. Effective --/--/2005 4 . . . . " IFOlLf! @@LIDW TOWN OF TIBURON STAFF REpORT ITEM NO. q To: From: MAYOR AND MEMBERS OF THE TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT a- ECONOMIC EXCEPTIONS: FILE Z2005-01; CONSIDER AN ORDINANCE , AMENDING MUNICIPAL CODE CHAPTER 16 (ZONING) TO ESTABLISH AN ECONOMIC EXCEPTION PROCESS September 7, 2005 Subject: Date: BACKGROUND On June 15,2005, the Town Council considered a proposed Economic Exception ordinance. The ordinance was designed to both reduce the number oftakings claims against the adopting public agency and ensure that before taking action on a prdj ect, the agency has before it all the facts relevant to a potential takings claim. , At the first public hearing held on the item, the Council voiced concerns about the practical , implementation of the Economic Exception process. The June 15th draft ordinance had relatively tight timeframes for ,the applicant to submit information supporting their claim that strict application of the Town's land use regulations would result in an unconstitutional taking of property. These timelines reflected the State Permit Streamlining Act, which gives the TOWnonly a limited period of time to approve or deny a project application. However, Councilmembers believed that as drafted, the ordinance might not allow sufficient time for the applicant to prepare the required information or for the Town to analyze the application. Staff prepared a revised ordinance for the Council's reconsideration at its June 29th meeting. This draft addressed the timing problem by authorizing the Community Development Director to grant extensions to the ordinance's deadlines for filing supporting information. The Council continued the item without discussion. In the intervening period, Vice-Mayor Smith suggested that the ordinance be revised again to ensure adequate time for the filing and processing of the Economic Exception request by shifting the time for processing until after the Town has satisfied relevant Permit Streamlining Act deadlines. This revised draft ordinance incOlporates that approach. ANALYSIS making body, the applicant would have 30 days to apply for an economic exception. If the Planning Commission, Design Review Board or Town Official is the decision.,making body, the process would be similar to a zoning permit appeal, except that this Ordinance provides a longer period (30 days) for submitting supporting information for the economic exception application~ Aside from this change, the operation of the exception process is the same as in the draft ordinance previously considered by the Town Council. Project applicants would provide all factual information relevant to their claim and explain why, under the stated facts, the strict application of Town's land use regulations would constitute an unlawful taking. The Town Council would hold a hearing on the application and could issue an Economic Exception if it made the following findings: . (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would , otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes environmental damage, as required by the California Environmental Quality Act. There was some concern at the June 15th meeting that these findings do not provide sufficient . protection to the Town's environmental resources, such as ridgelines. The Council should note that the General Plan is highly protective of such resources; the ordinance requires maximum compliance with the Plan and accordingly will give priority to preserving the Plan's protection of these resources. RECOMMENDATION The Council should conduct a public hearing on the revised draft ordinance, and then consider whether it wishes to adopt an ordinanc.e establishing an Economic Exception procedure. Ifit finds in the affirmative, the Council should; 1. By motion, r,ead the ordinance by title only; and 2. Pass first reading of the ordinance by roll call vote. EXHIBITS A. Draft Ordinance B. Staff Report from June 29,2005 C. Staff Report from June 15,2005 economic exception report3 .doc TibuTOn Town Council Staff Report 9/7/2005 2 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 . 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 . 44 ORDINANCE NO. /7 .~' _, 11'1 t ~e . (MIY, ,h . 0 \" \1 l rS I. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER16 (ZONING) OF THE TIBURON MUNICIPAL CODE, REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town,Council has held duly noticed public hearings on June 15,2005, September 7, 2005, and ,2005, and has heard and considered public testimony on the proposed Ordinance. B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance ,are necessary for the protection of the public health, safety, and welfare. D. The Town Council finds that the amendments made by this Ordinance are , consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town ofTiburon. E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16-7.1. Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of ", :-.--=>S Town ofTiburon Ordinance No. N.s. Effective --/--/2005 1 1 the public health, safety, general welfare and the environment (collectively, "Land Use 2 Regulations") in a manner that treats property owners fairly and in a manner consistent 3 with state and federal law. This article authorizes the Town to grant an Economic 4 Exception relaxing the application of the Town's Land Use Regulations to the extent ,5 necessary to avoid an unconstitutional taking under the United States or California 6 Constitutions. . 7 16-7.2. Application for Economic Exception. 8 If any applicant believes that strict application of the Town's Land Use Regulations 9 would not permit an economically viable use of his or her property, or would otherwise 10 effect an unconstitutional taking of property, the applicant may apply for an Economic 11 Exception. The application for an Economic Exception shall include the entirety of all 12 parcels that are geographically contiguous in which the applicant holds an interest at the 13 time of the application. Any applicant that does not submit a request for an Economic 14 Exception as set forth in Section 16-7.3 of this c~de shall be deemed to have waived any 15 .objections based on the Takings clauses of the United States and California Constitutions 16 to the strict application of the Town's Land Use Regulations, including, without 17 limitation, any condition of approval, mitigation measure or other measure imposed to 18 implement said regulations. The applicant shall be required to fund all costs associated 19 with independent peer review studies and reports commissioned by the Town of any 20 information submitted by the applicant, or the independent preparation of such 21 information by the Town or its consultants, and may be required to submit an advance 22 deposit upon application to cover such costs. 23 16-7.3. Time for Filinl! Application. , 24 (a) If the Econornic Exception request is based on the facial application of the 25 Town's Land Use Regulations, the applicant shall apply for the Economic Exception 26 before or in conjunction with the first land development application submitted for the 27 property. 28 (b) Notwithstanding subsection 16-7.3(a), ifthe Town Council is the decision- 29 making body for the land development application and the applicant's Economic 30 Exception request is based on a denial or on a condition of approval, mitigation measure 31 or other measure imposed by the Town Council, the applicant shall submit the application 32 for an Economic Exception within thirty (30) days of the Town Council's action on the 33 land development application. 34 (c) Notwithstanding subsection l6-7.3(a), ifthe Planning Commission, Design 35 Review Board, or Town Official is the decision-making body for the land development 36 application and the applicant's Economic Exception request is based on a denial or on a , 37 condition of approval, mitigation measure or other measure imposed by the Planning 38 Commission, Design Review Board, or Town Official, the applicant shall submit the 39 application for an Economic Exception within ten (10) days of the decision-making 40 body's action on the land development application. The request for an Economic 41 Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's 42 regular appeal process for contesting zoning permit decisions as set forth in Section 16- 43 3.8 of this code. The applicant may submit supporting information for the Economic . . Town ofTiburon Ordinance No. N.s. Effective --/--/2005 2 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 . 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 . 38 39 Exception request for a period of thirty (30) days following the decision being appealed. Scheduling of the Council hearing on the appeal and the request for Economic Exception shall be at"a date that the Director of Community Development determines will allow sufficient time for the Town to analyze the issues raised in the appeal and in the Economic Exception application. 16-7.4. Required Information. The applicant shall provide all of the following information within thirty (30) days of the decision on which the Economic Exception request is being filed: 1. The date the applicant purchased or otherwise acquired the property, and from whom. 2. The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the property. 3. The fair market value of the property at the time the applicant acquired it, describing the basis upon which the fair market value is derived, including any appraisals done at the time. 4. The general plan, zoning or similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations that occurred after acquisition. 5. Any development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. 6. Any change inthe size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. 7. A discussion of whether the applicant has sold or leased a portion of, or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leaseq. 8. A title report for the property, as well as copies of any underlying documents referenced therein, and copies of any litigation guarantees or similar documents that affect or limit the use of all or aportion of the property. 9. Any offers to buy all or a portion of the property which the applicant solicited or received, including the approximate date of the offer and offered price.' 10. The applicant's costs associated with the ownership of the property, annualized for each of the last five (5) calendar years, including property taxes, property .. assessments, debt service costs (such as mortgage ,and interest costs), and maintenance, operation and management costs. 11. Apart from any rent received from the leasing of all or a portion of the property, any income generated by the use o fall ora portion of the property over the last Town ofTiburon Ordinance No. N.S. Effective -/--/2005 3 1 five (5) calendar years. If there is any such income to report it should be listed on an 2 annualized basis along with a description of the uses that generate or have generated such 3 mcome. 4 12. A brief written explanation why the application is necessary to avoid an 5 unconstitutional taking. 6 13. Any other information that the Director of Community Development 7 determines is required to analyze the application. . 8 16-7.5. Economic Viability Determination; Economic Exception. 9' (a) The Town Council will hold a public hearing on any application for an 10 Economic Exception. The Council shall grant an Economic Exception from strict 11 application of the Town's Land Use Regulations if the Council makes the following 12 findings: 13 (1) Based on the economic information provided by the applicant, as well as any 14 other relevant evidence, strict application of the Town's Lap.d Use Regulations would not 15 provide an economically viable use of the applicant's property or would otherwise 16 constitute an unconstitutional taking of the applicant's property. 17 (2) The Economic Exception granted will result in a project which, to the 18 maximum extent possible while avoiding an unconstitutional taking, (a) complies with , 19 the Town's General Plan and Zoning Ordinance and (b) minimizes environmental 20 damage. 21 (b) The Council's findings shall identify the evidence supporting the findings. 22 23 SECTION 3. SEVERABILITY. 24 25 If any section, subsection, sentence, clause or phrase of this chapter is for any 26 reason held by a court of competent jurisdiction to be invalid, such decision shall not 27 affect the validity of the remaining portions of this chapter. The Town Council declares 28 that it would have passed this chapter and each section, subsection, sentence, clause and . 29 phrase thereof," irrespective of the fact that anyone or more section, sentences, clauses or 30 phrases be declared invalid. . 31 SECTION 4. EFFECTIVE DATE. 32 This Ordinance shall take effect and be in force thirty (30) days after the date of 33 passage, and before the expiration of fifteen (15) days after passage by the Town Council, 34 a copy of the ordinance shall be published with the names of the members voting for and 35 against it at least once in a newspaper of general circulation published in the Town of 36 Tiburon. 37 38 This Ordinance was introduced at a regular meeting of the Town Council of the 39 Town of Tiburonon ,2005, and was adopted at a regular meeting of the Town . Town ofTiburon Ordinance No. N.S. Effective --/--/2005 4 . 1 Council of the Town of Tiburon on , 2005, which was noticed pursuant 2 to Government Code Section 65090, by the following vote: 3 4 AYES: 5 NOES: 6 ABSENT: 7 8 9 MILES BERGER, MAYOR 10 TOWN OF TIBURON 11 12 13 14 ATTEST: 15 16 17 . 18 19 DIANE CRANE IACOPI, TOWN CLERK . Town ofTiburon Ordinance No. N.s. Effective --/--/2005 5 TOWN OF TIBURON STAFF REpORT . To: From: Subject: ITEM NO. MEETINGDATE: JUNE 29, 20Q5 - CrJJA/? ~A./ d' rJl::U/- TOWN COUNCIL ., SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT~'f"~( ZONING ORDINANCE TEXT AMENDMENT TO ADD PRO SIONS REGARDING ECONOMIC EXCEPTIONS; FILE #Z2005- INANCE-- INTRODUCTION AND FIRST READING 11 Date: June 21, 2005 Reviewed By: BACKGROUND At its meeting of June 15,2005, the Town Council considered a zoning text amendment creating an application process for "Economic Exceptions" in order to address potential takings claims prior to final action by the Town. The Town Council held a public hearing but took no formal action on the item. Members of the Council expressed concern about the following: . 1) The content and scope of the list of information and materials required to be submitted for the Economic Exception application (Section 16-7.4( a). 2) The amount oftime (originally ten days) allowed for the applicant to gather said information and materials (S ection 16- 7.4(b ). 3) The length of time potentially needed to conduct the Economic Exception application review process, including retention of economic specialists/consultants by the Town. 4) The wisdom of adopting an essentially untested application process. Councilmembers also expressed a desire to hear the opinions of Vice-Mayor Smith on this matter before taking any specific action, due to his expertise in real estate law. ANALYSIS Staff offers the flowing brief comments on the concerns listed above, in order of appearance. 1) The list of materials required for submittal of an Economic Exception application is based closely on the model ordinance created by the Institute for Local Government (ILG), which draws upon existing case law by requesting the types of economic data that the courts have used in deciding takings lawsuits. Information regarding current fair market value of the property was purposely excluded from the ILG (and Town) list. The list attempts to elicit valid and useful economic information regarding a property without being onerous. . Tiburon Town Council Staff Report June 29, 2005 1 EXHIBIT NO. D . . . 2) To address the concerns about limited time to submit the requested information, Staffhas added Section 16-7.2(b) that would allow additional time to submit the materials. This provision also protects the Town by requiring extensions from statutory deadlines where needed. The prior ten (10) day provision has been left "blank" in Sections 16-7 .3 (d) and 16- 7.4(b) so that the Council may specify a number of days if ten is not acceptable. 3) Staff acknowledges that the Economic Exception application process is new and untested, and that it is unknown how long and/or how smoothly such a process would unfold. The draft ordinance attempts to reasonably accommodate both the applicant and Town through provisions for additional time for the applicant and time extensions for statutory deadlines for the Town when needed. Town Staff should take reasonable steps to (anticipate foreseeable needs, such as preparing a list of economic consultants who could be retained on short notice for the Town's review purposes, and who would already be familiar with the Town's ordinance. 4) The Town Attorney strongly believes that while the Economic Exception process is unlikely to be frequently used, if such a situation arises, its existence could save the Town from protracted litigation and its accompanying high costs in dollars and staff resources. CEQA COMPLIANCE This amendment has no potential to result in an adverse environmental impact and is exempt from CEQA pursuant to Section 15308 and Section 15061(b)(3) of the CEQA Guidelines. RECOMMENDATION The Town Council should conduct a public hearing on the proposed zoning ordinance text amendment and address any issues raised. If the Council wishes to proceed with adoption ofthe text amendment, it should move to read by title only, pass the motion, and hold introduction and first reading ofthe ordinance by roll call vote. The public hearing should then be continued to the meting of July 20, 2005 for consideration of a second reading and adoption. EXHIBITS 1. Draft Ordinance. 2. Redlined version showing substantive changes since the hearing on June 15,2005. 3. StaffRepor,t: from June 15,2005 meeting. Tiburon Town Council Staff Report June 29, 2005 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 ORDINANCE NO. ,i)q QU)fvf- d- ,~ V\A \J tA:.r$ ~O . N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE'TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on , 2005 and ,2005, and has heard and considered public testimony on the proposed amendments. B. . The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are ne~essary for the protection of the public health, safety, and welfare. D. . The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act perSection 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16 (Zoning), Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16-7.1. Purpose. '\ 42 The purpose of this article is to ensure that the Town applies its General Plan, ordinances, 43 resolutions and other measures that regulate land use for the protection and promotion of 44 the public health, safety, general welfare and the environment (collectively, "Land Us~ . EXHIBIT NO. 1 Town ofTiburon Ordinance No. NS. --/--/2005 1 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 . 22 23 24 25 26 27 28 - 29 30 31 32 33 34 35 36 37 38 39 40 . 41 Regulations") in a manner that treats property owners fairly and ina manner consistent with state and federal law. This article authorizes the Town to grant an Economic Exception relaxing the application of the Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. 16-7.2. Application for Economic Exception. (a) If any applicant believes that strict application of the Town's Land Use Regulations would not permit an economically viable use of his or her prop~rty, or would , otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. Any applicant that does not submit a request for an Economic Exception as set forth in Section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the United States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the Town of any , information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon application to cover such costs. (b) The Director may, in his sole discretion to ensure the fairness of the process, grant extensions of any deadlines in this Article in order to allow the applicant a , reasonable amount of time to prepare the materials required under Section 16-7.4 for the application and/or to allow the Town enough time to analyze the application. However, if any such extension, would imperil the Town's ability to comply with other deadlines established by law (including, without limitation, the deadlines contained in the California Permit Streamlining Act and the California Environmental Quality Act), the Director may require the applicant to grant an extension to such other deadlines. 16-7.3. Time for Filinl:! Application. (a) The applicant shall apply for the Economic Exception as early as possible in the process of obtaining land use approvals for the subject property, i.e., before or in conjunction with the first land development application submitted for the property. (b) Notwithstanding subsection l6-7.3(a), if the Planning Commission is the decision-making body for the land development application and the applicant's Economic Exception request is based on a condition of approval, mitigation measure or other measure imposed by the Planning Commission, the applicant shall submit the application for an Economic Exception within ten (10) days o'fthe Planning Commission's action on the land development application. The request for an Economic Exception shall be . Town ofTiburon Ordinance No. N.s. --/--/2005 2 1 submitted using the Town's regular appeal process for contesting zoning permit decisions 2 by the Planning Commission. 3 (c) If the Planning Commission acts on the land development application as an 4 advisory body and the applicant's Economic Exception request is based on a condition of 5 approval, mitigation measure or other measure recommended by the Planning 6 Commission, the applicant shall submit the request for an Economic Exception within ten 7 (10) days of the Planning Commission's making its recommendation on the merits of the 8 land development application. The Town Council shall consider the request for an 9 Economic Exception prior to taking action on the merits of the land development 10 application. 11 (d) If the request for Economic Exception is based on a condition of approval, 12 mitigation measure or other measure first pro.posed at a meeting ofthe Town Council, the 13 applicant may submit the application for an Economic Exception within _ U days 14 of receiving constructive notice of said proposal. . 15 16 16-7.4. Required Information. 17 (a) The applicant shall provide all of the following information: 18 1. The date the applicant purchased or othervvise acquired the property, and from 19 whom. 20 2. The purchase price paid by the applicant for the property and a description of 21 any consideration that the applicant received for that purchase price in addition to the 22 property. 23 3. The fair market value of the property at the time the applicant acquired it, 24 describing the basis upon which the fair market value is derived, including any appraisals 25 done at the time. 26 4. The general plan, zoning or similar land use designations applicable to the 27 property at the time the applicant acquired it, as well as any changes to these designations 28 that occurred after acquisition. 29 5. Any development restrictions or other restrictions on use, other than 30 government regulatory restrictions described in (4) above, that applied to the property at 31 the time the applicant acquired it, or which have been imposed after acquisition. 32 .6. Any change in the size of the property since the time the applicant acquired it, 33 including a discussion of the nature of the change, the circumstances and the relevant 34 dates. 35 7. A discussion of whether the applicant has sold or leased a portion of, or interest 36 in, the property since the time of purchase, indicating the relevant dates, sales prices, 37 rents, and nature of the portion or interests in the property that were sold or leased. . . Town " of Tiburon Ordinance No. N.S --/--/2005 3 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 . 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 . 37 38 8. A title report for the property, and any litigation guarantees or similar documents that affect or limit the use of all or a portion of the property, including copies of relevant underlying documents referenced therein. 9. Any offers to buy all or a portion of the property which the applicant solicited or received, including the approximate date of the offer and offered price. 10. The applicant's costs associated with the ownership ofthe property, annualized for each of the last five (5) calendar years, including property taxes, property assessments, debt service costs (such as mortgage and interest costs), and maintenance, operation and management costs. 11. Apart from any rent received from the leasing of all or a portion of the property, any income generated by the use of all or a portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such mcome. 12. A written explanation as to why the application is necessary to avoid an unconsti tutional taking. 13. Any other information that the Director determines is required to analyze the application. (b) The foregoing information must be submitted within _ U days of submission of the application for an Economic Exception. 16-7.5. Economic Viability Determination~ Economic Exception. (a) The Town Council will hold a public hearing on any application for an Economic Exception. The Council shall grant an Economic Exception from strict application of the Town's Land Use Regulations if the Council makes the following findings: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental damage as required by the California Environmental Quality Act. (b) The Council's findings shall identify the evidence supporting the findings. Town ofTiburon Ordinance No. N.S --/--/2005 4 ; SECTION 3. SEVERABILITY. . 3 If any section, subsection, sentence, clause or phrase of this chapter is for any 4 reason held by a court of competent jurisdiction to be invalid, such decision shall not 5 affect the validity of the remaining portions of this chapter. The Town Council declares _ 6 that it would have passed this chapter and each section, subsection, sentence, clause and 7 phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or 8 phrases be declared invalid. 9 10 SECTION 4. EFFECTIVE DATE. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 This Ordinance shall take effect and be in force thirty days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy ofthe ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was introduced at a regular meeting of the Town Council of the Town ofTiburon on ,2005, and was adopted at meeting of the Town Council of the Town of Tiburon on ,2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: COUNCILMEMBERS: . NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK s I AJ. ",,-,,~f-rc. /~CJS( O~ ~.BO hH-rk. Town ofTiburon Ordinance No. N.s. --/--/2005 5 . . . TOWN OF TIBURON STAFF REpORT ITEM NO. ~ MEETING DATE: JUNE 15, 2005 To: From: TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT ~ ZONING ORDINANCE TEXT AMENDMENT TO ADD PROVISIONS REGARDING ECONOMIC EXCEPTIONS; FILE #Z2005-01; ORDINANCE-- INTRODUCTION AND FIRST READING , June 10, 2005 Subject: Date: BACKGROUND One of the most contentious and unpredictable areas of land use law.involves takings claims. Applicants who find their proj ects denied or subj ected to stringent conditions of approval often claim that the permitting agency has violated the constitutional prohibitions against taking property without compensation. Courts tend to review such claims on a case by case basis, utilizing a number of factors to determine the constitutionality of the challenged actions. As a result, litigation of these cases can be protracted, costly and of uncertain outcome. .At the February 7,2005 Town Council/Staff retreat, the Council stated that it would like to consider adoption of an ordinance that would allow applicants to apply for an Economic Exception 1 from strict application ofthe Town's land use regulations. The Institute of Local Self Government (ILG) has developed a model ordinance that creates an economic variance procedure. This procedure is designed to both reduce the number oftakings claims against the adopting public agency and ensure thatbefore taking action on a project, the agency has before it all the facts relevant to a potential taking's claim. Staffhas used this ll.,G model ordinance as a starting point, expanding its scope to include conditions of approval, mitigation measures and similar factors that may arise during the approval process. The Planning Commission held a public hearing on the proposed zoning text amendment on June 8, 2005 and recommended favorably by adopting Resolution No. 2005-07 (Exhibit 1). The Commission made some additions to the application submittal materials list and raised some . additional concerns discussed below. ANALYSIS Takings litigation generally falls into two broad categories. The first category, known as "facial" claims, are claims that a regulation, by its mere existence, effectively takes an owner's property without compensation. For example, if a city passed an ordinance that banned all potential use of a parcel of property, the owner could file a facial takings challenge to that regulation. However, such claims are valid only if there is no administrative procedure to obtain a variance or exception allowing the landto be used in an economically remunerative way. The proposed ordinance would create such a procedure, effectively insulating the Town's General Plan, Zoning Ordinance and other land use regulations from facial attack. The second broad category of takings claim is the "as-applied" challenge. In these cases, a property owner claims that a governmental agency? s application of land use regulations to his or her property effectively takes that property without compensation. The alleged taking generally assumes one of three forms: (1) physical invasion (the property owner is required to surrender an interest in the property and the requirement is not adequately related to a project impact); (2) destruction of value (the property owner is deprived of all economically viable use of his or her property); or(3) undue interference with reasonable, investment-back expectation.2 Physical invasion claims are relatively straightforward, hence relatively rare in recent years. . However, the second and third types of claims, commonly called "regulatory takings," are more complex and rely on numerous facts relating to the property in question. In the absence of a physical invasion of property, the courts have been unable to develop any set formula for determining whether an illegal taking has occurred. However, the U.S. Supreme Court has enumerated several factors that are critical to the inquiry and directed courts to make a case by case inquiry. Most recently, the Court said the following: The Court in Penn Central acknowledged that it had hitherto been "unable to develop any 'set formula'" for evaluating regulatory takings claims,lJut identified "several factors that have particular significance." . . . Primary among those factors are "the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations." . . In addition, the "character of the governmental action" -~ for instance whether it amounts to a physical invasion or instead merely affects property interests through "some public program adjusting the benefits and burdens of economic life to promote the common good" -- may be relevant in discerning whether a taking has occurred. The Penn Central factors -- though each has given rise to vexing subsidiary questions 2 Until very recently, the Supreme Court recognized an additional takings test: whether the regulation substantially advanced a legitimate state interest. This test was derived from Agins v. City of Tiburon (1980). On May 23,2005, . the Supreme Court eliminated this test from takings jurisprudence in Lingle v, Chevron U.S.A.. Tiburon Town Council Staff Report June 15, 2005 2 \io . . .' -- have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules) The courts have identified a number of factual circumstances relevant to determining whether a regulation causes a regulatory taking. These types of facts maybe absent from the record in the normal land use application process. If the facts are not in the record, a takings challenge is likely to turn on external evidence, which means a protracted and costly discovery process, followed by an evidentiary hearing. The proposed Ordinance would require property owners to request an Economic Exception . before making a takings claim and, through the Economic Exception process, the Town would have the opportunity to review all the facts and reasoning relevant to the potential claim. This would enable the Town to fairly balance the rights of the property owner with the Town's interest in enforcing its land use regulations. The Town 'would be able to tailor its regulatory programs to avoid an unjust result. Moreover, if the Town fmds that normal application of its regulations will not constitute a taking, the Ordinance would assure that the administrative record will contain enough facts to enable the agency to prevail at an earlier stage of litigation. This is potentially a very significant savings in litigation costs. . The Council should note that these types of ordinances are relatively untested. However,based on existing takings jurisprudence, we believe that the Ordinance is likely to reduce the incidence of takings claims in Tiburon, and enhance the likelihood of a successful outcome in those cases that are not resolved through the Economic Exception process. The Cities ofMalibu, Lafayette and Napa have somewhat similar procedures, which have not been tested in court as far as staff has been able to ascertain. The City of Livermore has a related process that allows the City Attorney to decide whether a regulatory application constitutes a taking. This process resulted in the City's succes'sful defense of a refusal to grant an exception to its scenic route protection policies. The operation of the Economic Exception process is fairly simple. Project applicants must request an Economic Exception as early as possible in the approval process. ' Staff has expanded the procedure to include challenges to conditions of approval, mitigation measures, and similar impositions on project applications, because we believe them to be the most likely source ofta,kings claims in Tiburon. The applicant must provide all factual information relevant to their claim and explain why, under the stated facts, the strict application of Town regulations would constitute an unlawful taking. The Town Council would hold a hearing on the request and could issue an Economic Exception if it made the following findings: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. 3 Lingle v, Chevron U.S.A. 2005 U.S. Lexis 4342 (U.S. May 23,2005) (citations omitted). Tiburon Town Council Staff Report June 15, 2005 3 (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental ~~. I . ISSUES RAISED BY THE PLANNING COMMISSION The Planning Commission raised certain concerns and asked Staff to address these issues in the report to the Town Council. These issues are as follows: (1) The Planning Commission expressed concern that Section 16-7.3 of the Ordinance might encourage excessive filing of applications for Economic Exception, and gave the appearance of encouraging such filings at the outset of a project application. Section 16-7.3( a) reads as follows: (a) The applicant shall apply for the Economic Exception as early aspossible in the process of obtaining land use approvals for the subject property, i.e., before or in conjunction with theftrst land development application submitted for the property. Staffbelieves that this provision will not encourage excessive filing of Economic Exception applications with the original application submittal, since there would be no basis for such a filing unless a "facial" taking was being alleged. Such claims are very rare, and Staff . believes that the purpose of this "early as possible" provision is to cover the remote possibility of such facial claims, with the understanding that they will almost never occur, since it is the "application" ofthe Town's land use regulations that would trigger virtually all takings claims that might be filed. (2) The Planning Commission questioned whether information regarding the fair marketvalue of the property, and/or the value of the property assuming project approval, should be required with submittal of the Economic Exception application. Staff believes that the ILG model ordinance purposefully excluded such information from the submittal requirements. Such information may be generated independently by the Town or its consultants as needed during the Economic Exception Analysis; requiring such information from the applicant may not secure the interests of objectivity. (3) The Planning Commission received a request from a member of the public (Jerry Riessen) to modify Section 16-7.5 (a)(2) to read as follows (new text italicized): (2) The Economic Exception granted will result in a project which, to t~e maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental damage, and to the maximum extent feasible, protect prominent ridges. . Tiburon Town Council Staff Report June J 5, 2005 4 ,. . . \.. Some Commissioners believed that ridges would already receive preferential protection under the Town's General Plan policies, and that the additional text was unnecessary. One Commissioner favored inclusion of the additional text. While the Commission did not include this text revision in its adopted resolution, it did request that the Town Council consider inclusion before adoption, after hearing the opinion ofthe Town Attorney on the m~~ ' CEQA COMPLIANCE This amendment has no potential to result in an adverse environmental impact and is exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. RECOMMENDATION The Town Council should conduct a public hearing on the proposed zoning ordinance text amendment and address any issues raised. Ifthe Council wis;hes to proceed with adoption of the text amendment, it should move to read by title only, pass the motion, and hold introduction and first reading of the ordinance by roll call vote. EXHIBITS 1. 2. 3. 4. Resolution recommending adoption to Town CounciL Draft Ordinance. Excerpt from Institute for Local Governmynt (ILG) website Draft minutes of 6/8/2005 Planning Commission meeting (to be provided at the meeting). Tiburon Town Council Staff Report June is, 2005 5 :i 0 liS c,^-,\f\, V "--- r Q~ \J.ers l , ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council ofthe Town of Tiburon does ordain as follows: SECTION 1. ADDITION TO MUNICIPAL CODE. A new Article VII to Chapter 16 (Zoning), Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16- 7.1. Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land Use Regulations") in a manner that treats property owners fairly and in a manner consistent with state and federal law. This article authorizes the Town to grant an Economic Exception relaxing the application of the Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. . 16-7.2. Application for Economic Exception. If any applicant believes that strict application of the Town's Land Use Regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. Any applicant that does not submit a request for an Economic Exception as set forth in Section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the Dnited States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the Town of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon application to cover such costs. EXHIBIT NO. 1 . ~ . . . 16-7.3. Time for Filin2" Application. (a) The applicant shall apply for the Economic Exception as early as possible in the process of obtaining land use approvals for the subject property, i.e., before or in conjunction with the first land development application submitted for the property. (b) Notwithstanding subsection l6-7.3(a), if the Planning Commission is the decision-making body for the land development application and the applicant's Economic Exception request is based on a condition of approval, mitigation measure or other measure imposed by the Planning Commission, the applicant shall submit the application for an Economic Exception within ten (10) days of the Planning Commission's action on the land development application. The request for an Economic Exception shall be submitted using the Town's regular appeal process for contesting zoning permit decisions by the Planning Commission. (c) If the Planning Commission acts on the land development application as an advisory body and the applicant's Economic Exception request is based on a condition of approval, mitigation measure or other measure recommended by the Planning Commission, the applicant shall submit the request for an Economic Exception within ten (10) days of the Planning Commission's making its recommendation on the merits ofthe land development application. The Town Council shall consider the request for an Economic Exception prior to taking action on the merits of the land development application. (d) If the request for Economic.Exception is based on a condition of approval, mitigation measure or other measure first proposed at a meetingofthe Town Council, the applicant may submit the application for an Economic Exceptionwithin ten (10) days of receiving constructive notice of said proposal. 16-7.4. Reauired Information. (a) The applicant shall provide all of the following information: 1. The date the applicant purchased or otherwise acquired the property, and from whom. 2. The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the property. 3. The fair market value of the property at the time the applicant acquired it, describing the basis upon which the fair market value is derived, including any appraisals done at the time. ' 4. The general plan, zoning or .similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations th?-t occurred after acquisition. 5. Any development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. 2 . 12. A written explanation as to why the application is necessary to avoid an unconstitutional taking. 13. Any other information that the Director dete~ines is required to analyze the application. (b) The foregoing information must be submitted within ten (I 0) days of submission of the application for an Economic Exception. . 16-7.5. Economic Viabilitv Determination~ Economic Exception. (a) The Town Council will hold.a public hearing on any application for an Economic Exception. The Council shall grant an Economic Exception from strict application of the Town's Land Use Regulations if the Council makes the following findings: (1) Based on the economic information provided by the applicant, as well as any othenelevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental damage. . 3 . . . (b) The Council's findings shall identify the evidence supporting the findings. SECTION 2. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact thatany one or more section, sentences, clauses or phrases be declared invalid. SECTION 3. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on, 2005, and was adopted at meeting ofthe Town Council of the Town of Tiburon on ,2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OFTIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK 4 Proposed Economic Exception Ordinance Page 1 of 1 Scott Anderson LATE MAIL # J I . From: Fran M. Layton [Layton@smwlaw.com] Sent: Monday, September 19, 200510:11 AM To: Ann Danforth Cc: Scott Anderson Subject: Proposed Economic Exception Ordinance SEP 1 9 2005 Ann and Scott, PLANNiNG ~O\/VN elF T!8UF:.ON I received and reviewed on Friday afternoon the staff report and revised Economic Exception Ordinance. I think that you two have done a terrific job of explaining very clearly the rationale for the changes you have proposed and addressing the concerns of the Council, particularly Vice-Mayor Smith. One other advantage of the Ordinance, which might be of interest to the Town Council, is that this provision will almost automatically defeat a facial challenge to the Town's regulations protecting prime open space. Until an applicant applies for this , variance, it cannot be said that the Town's regulations on their face will result in a deprivation of all economic use. On the subject of "when" an applicant applies for the Economic Exception, your rewrite is a thoughtful approach to the balance of interests as between the Town's need to understand the basis for a potential takings claim at the earliest possible time and the time required of the property owner to prepare the required materials. Of course, it is in the applicant's interest.to know as soon as possible if the Town will grant an exception for the proposed development, and the nature of that exception, so that he can prepare submittal documents accordingly. I would only reemphasize, as I noted in my email of September 7th to you, that the Town's General Plan and zoning regulations are quite explicit as to the restrictions that will affect development of property. Therefore, the applicant should be able to anticipate the need for an economic exception fairly early in the process. . Following are a few minor language changes to propose, which are non-substantive in nature: First, paragraph 16-7 .3(b), which pertains to the Council's jurisdiction, says it retains jurisdiction after its initial decision on the project "for the sole purpose of considering a request for an Economic Exception." It might be a good idea to be explicit that it retains jurisdiction until after it takes action on the exception. The remaining proposed minor changes to sections 16-7.3 (a)(2), (b), and (c), are shown on the attached version of the ordinance. Please don't hesitate to contact me if you wish to discuss any of this. Fran Layton <<fmI003 (fml edits to Economic Exception Ordinance 9-21 draft).doc>> . 9/1912005 1 . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 . 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44. . (v ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, <;HAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005, September 7,2005, September 21,2005, and ,2005, and has heard and considered public testimony on the proposed Ordinance. B. The Town Council fInds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D. The Town Council has found thatthe amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 1506l(b)(3) of the CEQA Guidelines. SECTION b AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. , Economic Exceptions 16-7.1. Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land'Use Town ofTiburon Ordinance No. N.S, Effective --/--/2005 1 Regulations") in a manner that treats property owners fairly and in a manner consistent 2 with state and federal law. This article authorizes the Town to grant an Econorplc 3 Exception relaxing the application of the Town's Land Use Regulations to the extent 4 necessary to avoid an unconstitutional taking under the United States or California 5 Constitutions. . Application for Economic Exception. 6 16-7.2. 7 (a) If any applicant believes that strict application of the Town's Land Use 8 Regulations would not permit an economically viable use of his or her property, or would 9 otherwise effect an unconstitutional taking of property, the applicant may apply for an 10 Economic Exception. The application for an Economic Exception shall include the 11 entirety of all parcels that are geographically contiguous in which the applicant holds an 12 interest at the time of the application. 13 (b) The applicant shall be required to fund all costs associated with 14 independent peer review studies and reports commissioned by the Town of any 15 information submitted by the applicant, or the independent preparation of such 16 information by the Town or its consultants, and may be required to submit an advance 17 deposit upon application to cover such costs. 18 (c) Any applicant that does not submit a request for an Economic Exception 19 as set forth in section 16-7.3 shall be deemed to have waived any objections based on the 20 Takings clauses of the United States and California Constitutions to the strict application 21 of the Town's Land Use Regulations, including, without limitation, any condition of 22 approval, mitigation measure or other measure imposed to implement said regulations. Time for Filinl! Application. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 16-7.3. (a) Economic Exception requests should be filed as early as possible in the planning and/or permit process. (1) If the Economic Exception request is based on the facial application of the Town's Land Use Regulations, the applicant shall apply for the Economic Exception before or in conjunction with the fIrst land development application submitted for the property. (2) The applicant shall apply for an Economic Exception in conjunction with the first land development application submitted for the property if the Town's Land Use Regulations ifit is reasonably foreseeable that application of the Town's Land Use Regulations will require~del.1i~Ll?fthe .dev.~!l?1?!!1e.ntu.u ...... application or the imposition of a condition of approval, mitigation measure or other measure ~hi~p:.t.J?~ .ap'p1ic(iP!. !J.~~j~ves.'Y.iJ).~ff~~tap l!~~~~stitutio~(i.1.~~g. ....... . . of property. (b) Notwithstanding subsection l6-7.3(a), if the Town Council is the decision- making body for the land development application and the applicant's Economic Exception request is based on the Town Council's,cl~I1iaLorth~d~v.e!()P111el1t;}PJ?ljc;a!i~~. _ or on its imposition of a condition of approval, mitigation measure or other measure".th.eu. applicant shall submit the application for an Economic Exception within thirty (30) days . { Deleted: a ,----.-...--.--..--.-- ........-.----.-...] i Deleted; to be imposed . {Deleted: a ---~---~.-.] Deleted: imposed by the Town J Council, .-------------.:..-.---.---.-- Effective --/--/2005 2 Ordinance No, NS. Town ofTiburon . 1 . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 . 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 . of the ToWn Council's action on the land development application. The Council shall retain jurisdiction over the project after its initial decision on the application for the sole purpose of considering a request for an Economic Exception, which jurisdiction shall expire at the end of the 30-day period if no such request is filed. This subsection 16- 7 .3(b) shall not apply if the denial, condition of approval, mitigation measure or other measure was reasonably foreseeable when the applicant filed its fIrst land development application for the property. (c) Notwithstandingsubsection l6-7.3(a), if the Planning Commission, Design Review Board, or Town Official is the decision-making body for the land development application and the applicant's Economic Exception request is based on~_!i~_ni~l (?f!h~___ _ _ _ _ - -- development application or on the imposition of a condition of approval, mitigation measure or other measur~~y !h~_P~~llI1il1g<=,oI11Il1issi()l1' I:)e_sign ~~yi~\V l3.()_~!i,or'fo\Vl?_ ___ Official, the applicant shall submit the application for an Economic Exception within ten (10) days of the decision-making body's action on the land development application. The request for an Economic Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's regular appeal process for contesting zoning permit decisions as set forth in section 16-3.8 of this Code. The applicant may submit supporting information for the Economic Exception request for a period of thirty (30) days following the decision being appealed. Scheduling of the Town Council hearing on the appeal and the request for Economic Exception shall be at a date that the Director of Community Development determines will allow sufficient time for the Town to analyze the issues raised by the appeal and the Economic Exception application. This subsection 16-7 .3( c) shall not apply if the denial, condition of approval, mitigation measure. or other measure was reasonably foreseeable when the applicant filed its fIrst land development application for the property. (d) For purposes of this section, "fIrst land development application" shall mean the first land development application filed in connection with a particular project. 16-7.4. Required Information. (a) The applicant shall provide all of the following information within thirty (30) days of the decision on which the Economic Exception request is being filed: (1) The date the applicant purchased or otherwise acquired the property, and from whom. (2) The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the property. (3) The fair market value of the property at the time the applicant acquired ' it, describing the basis upon which the fair market value is derived, including any appraisals done at the time. (4) The general plan, zoning or similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations that occurred after acquisition. Town ofTiburon Ordinance No. N.S. Effective --/--/2005 3 -L~eleted: a ---.-.-----.----""..--.......-..---.--......--. ,J ro;.;--:--------------' -- - Deleted: Imposed J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 (5) A description of any development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. (6) A description of any change in the size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. . (7) A statement as to whether the applicant has sold or leased a portion of, or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leased. (8) A title report for the property, as well as copies of any underlying documents referenced therein, and copies of any litigation guarantees or similar documents that affect or limit the use of all or a portion of the property. (9) A statement describing any offers to buy all or a portion of the property which the applicant solicited or received, including the approximate date of the offer and offered price. (10) An accounting of the applicant's costs associated with the ownership of the property, annualized for each of the last five (5) calendar years, including property taxes, property assessments, debt service costs (such as mortgage and interest costs), and maintenance, operation and management costs. (11) Apart from any rent received from the leasing of all or a portion of the property, an accounting of any income generated by the use of all ora portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such income. (12) A brief written explanation why the application is necessary to avoid , an unconstitutional taking. . (b) The Director of Community Development may, in his reasonable discretion, require the submittal of additional information that he determines is necessary to analyze the application. (c) The Director of Community Development may, in his reasonable discretion, grant additional time for the applicant to submit the required information. . 16-7.5. Economicallv Viable Use Determination; Economic Exception. (a) The Town Council shall hold a public hearing on any application for an Economic Exception. The Town Council shall grant an Economic Exception from strict application of the Town's Land Use Regulations if the Town Council makes the following findings: (1) Based on the economic information provided by the applicant or consultants, and considering any other relevant evidence, strict application of the Town ofTiburon Ordinance No. N.s. Effective --/--/2005 4 . 1 . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 . 24 25 26 27 28 29 . Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes significant environmental impacts. (b) The Town Council's fmdings shall identify the evidence supporting the fmdings. SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This Ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on ,2005, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on , 2005, ~hich was noticed pursuant to Government Code Section 65090, by the following vote: AYES: 30 NOES: 31 ABSENT: 32 33 34 35 ArrEST: 36 37 38 MILES BERGER, MAYOR TO\VN OF TIBURON Town ofTiburon Ordinance No. N.S. Effective --/--/2005 , ; 5 ),~ '\ '. . . . ,TOWN OF TIBURON STAFF REpORT ITEM NO. / I To: From: MAYOR AND TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY PAT ECHOLS, TOWN ENGINEER ORDINANCE REGARDING ENCROACHMENTS IN RIGHT OF WAY October 5, 2005 Subject: Date: BACKGROUND AND SUMMARY Several years ago, Public Works Directors in Marin County recognized a shared concern regarding their existing encroachment regulations. Their consensus was that those regulations were inadequate to protect the public streets and avoid excessive inconvenience to their residents and the traveling public from the anticipated increase in requests by businesses to install facilities in their streets. Many cities and counties throughout the state have seen the quality and safety of their streets being significantly degraded by repeated street cuts by utilities and telecommunications providers. The Directors expected that in the future, an increasing number of telecommunications providers will present more encroachment requests for use of the public right-of-way to provide their services. Beginning in 2000, representatives of the Marin Cities and Towns, the County and the Marin Telecommunications Agency met regularly to discuss the development of new encroachment regulations. The goal was to find better ways to protect the public streets and explore whether compensation could be obtained for the use of the public right-of-way by private parties. Another primary goal was to develop a standard regulatory framework throughout Marin to simplify and expedite the processing of applications that covered multiple jurisdictions. After reviewing new regulations adopted by a number of public,agencies throughout the State, the agency representatives agreed to use an ordinance adopted by the City of Corona as a model upon which to base our encroachment regulations, retaining special legal counsel to assist in this effort. After a number of ~eetings, the representatives and special counsel finalized a model uniform ordinance, which they presented and presented to the Board of Supervisors. A number of circumstances delayed Board action on the draft, including objections from the wireless industry and PacBell and the need to further modify the draft to reflect two federal cases that had struck down ordinances regulating telecommunications providers. The County finally adopted the ordinance in '2002 and requested 'other local governments in the County to do the same. Given the press of other business, Town staff delayed action on this request. Town Staff deemed it prudent'to wait a period oftime before presented the ordinance to the Council, because there appeared to be a strong likelihood that (1) the ordinance would be subject to legal ~ '.~ Encroachment Ordinance October, 2005 Page 2 of 4 . attack and (2) would be further modified by the County. The ordinance appears ,to have stood the test of time. Staff has modified the ordinance before the Council to reflect the Town's existing regulations. The ordinance would add a new Chapter 19 A to the Municipal Code, governing work in the public right of way. In addition, the ordinance modifies the Town's existing Chapter 19 to reflect the new requirements, clarify the definitions and add public easements to the list ofland interests requiring encroachment permits. ANALYSIS The proposed ordinance does not replace the Town's current encroachment permit regulations, but instead supplements them. The key terms of the ordinance are the following: 1. Any person installing any facility in the public right-of-way thu~t enter into a right-of-way agreement with the Town. The ordinance defmes "Facility" to include telephone, telecommunications, electric, gas, or waterlines or any other physical improvement. "Person" is defined to mean any private party. Local public agencies such as the County and any special district . are exempt from the agreement requirement. Also exempt are any persons that have an existing agreement or franchise with the Town to use the public right-of-way such as PG&E or AT&T for cable television services and any person that will only be making a minor or temporary encroachment as determined by the Public Works Director. An example of a minor or temporary encroachment is work done by a developer on a street adjacent to a development project. In addition, certain wireless installations are exempted provided that the facility consists of a single pole, all appurtenant equipment occupies less than 50 square feet of public right -of-way and the total excavation for the entire facility does not exceed 200 linear feet of public right-of-way. The addition of this exemption satisfies the concerns of the wireless industry representatives. 2. An applicant for a right of way agreement must submit an application fee that will cover all the Town's costs in reviewing the application, including any outside consultant or legal fees. The application must contain a description and maps showing the work to be performed. The applicant must also submit a construction schedule. 3. The Town Council must approve the right-of-way agreement. Ifthe Council denies an application, it must set forth the reasons for denial in a resolution. Section 19A-070 ordinance includes specific criteria for approving or denying an application. 4. The right-of-way agreement must contain the following provisions: a. A description of the facilities authorized to be installed. . . . . Encroachment Ordinance October, 2005 Page 3 of4 b. A right-of-way usage fee when such fee is permitted to be imposed by the Town under state law. Such fee may consist of a cash payment, in-kind contributions (such as conduit or dark fiber), or other benefits of value to the Town, or any combination of the foregoing. c. The submission of financial security to ensure the satisfactory completion of the work in the amount of one hundred and ten percent of the value of the work at the time an encroaclmlent permit is issued if such security is considered necessary by the Director of Public Works due to the scope of the work. The security may consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the Director. e. The agreement of the private party to relocate its facilities at its expense any time in the future that such relocation is required in order to accommodate a public project in the right-of- way. f. Standards for the removal of the facility upon the expiration or termination of the agreement. If the private party fails to properly remove its facility, the Town can do so "at the expense of such party. g. Indemnification and insurance requirements. 5. In addition to obtaining a right-of-way agreement, any user of the public right-of-way still must obtain any encroachment and excavation permits currently required by the Town. 6. Prior to submitting an application for a right-of-way agreement, the applicant must notify in writing on a form approved by the Town other existing or potential right- of- way users of the work proposed. Such persons noticed will have thirty days to respond as to whether they desire to perform work jointly with the applicant. The failure to timely respond to a notice will result in such person being prohibited from working in the designated right-of-way for a period of one year. 7. Regardless of whether a person is required to obtain a right-of-way agreement, no person will be permitted to excavate any street that was constrUcted or resurfaced during the past five years. There are limited exceptions to this prohibition, but anyone exempted from the prohibition must ,restore the street to a higher standard than would be required for an older street. These same requirements apply to any street with a Pavement Condition Index of 70 or higher as described in the Town's Pavement Management Program. These type of streets are older streets that are in very good condition similar to a street that has been constructed or resurfaced in the past five years: Encroachment Ordinance October, 2005 Page 4 of 4 . The proposed ordinance will establish much more comprehensive and effective regulations than currently exist for the protection of the public rights-of-way: It also provides a method for obtaining compensation from right-of-way users when permitted by state law. RECOMMENDATION The Council should conduct a public hearing on the proposed new ordinance and then consider whether it wishes to adopt the proposed new encroachment regulations. If it finds in the affirmative, the Council should: 1. By motion, read the ordinance by title only; and 2. Pass first reading of the ordinance by roll call vote. EXHIBITS Draft Ordinance County Staff Report Sample Right of Way Agreement . . . ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON REPEALING THE EXISTING CHAPTER 19 OF THE TIBURON MUNICIPAL CODE, AND ADDING NEW CHAPTERS 19 AND 19A TO SAID CODE, REGARDING ENCROACHMENTS INTO TOWN PROPERTY AND RIGHTS OF WAY The Town Council of the Town of Tiburon does ordain as follows: SECTION.L The existing Chapter 19 of the Tiburon Municipal Code entitled "Encroachments" is hereby repealed in its entirety, provided however, that this repeal shall not effect or prevent the prosecution or punishment of any person for any act done or omitted in violation of this chapter prior to the effective date of this ordinance. SECTION 2. A new Chapter 19 of the Tiburon Municipal Code, entitled "Encroachments; General," is hereby added to the Tiburon Municipal Code to read as follows: 19-1 Definitions. As used in this chapter, the following terms are defined in this section: . "Encroachment permit" means a permit issued by the town to approve work within, upon, or beneath town streets, street right-of-ways, or on town-owned land. "Town council" means the town council of the Town of Tiburon. "Town engineer" means the town engineer of the Town of Tiburon or his designee. "Town-owned land" means real property in which the town holds an interest, including, without limitation, fee title ownership, easement or leasehold. "Work" means, without limitation, the erection of any structure; placement of any improvement; filling; excavation; installation or removal of utility lines or pipes; installation or removal of telecommunications facilities (as defined in Chapter 9, section 9-2 of this Code); installation or construction of curb cuts, curbs or gutters; installation or construction of sidewalks or driveways; installation of roadway approaches; or removal or planting of trees or shrubs. "Work" shall also include installation or construction of sidewalks or driveways; installation of roadway approaches; removal or planting of trees or shrubs, or any activity that interferes with or obstructs the free flow of traffic or normal parking activities on public streets. "w ork" shall also include, without limitation, the business or trade of selling, vending, hawking or peddling any merchandises, article or item whatever. . 19-2 Encroachment permits required. S:\Administration\Staff Folders\adanforth\Ordinances\DPW - Engr\Encroach, Telec, 10-5-05 fina1.DOC An encroachment permit for work within, upon or beneath the town streets, street right-of-ways, public easements or town-owned land shall be required and issued in accordance with this Chapter and, as applicable, Chapter 19A and division 2, chapter 5.5 (sections 1450 et seq.) of the California Streets and Highways Code and the provisions of this chapter. 19-3 Application and fees. (a) All applications for encroachment permits shall be on forms supplied by the town and shall be accompanied by a drawing and/or plan clearly describing the proposed work, as well as any other materials specified on the town's application forms. . (b) Except for exemptions specified herein, all applications shall be accompanied by a non-refundable application fee as established in the town's current fee schedule. (c) An inspection fee shall also be established and levied as deemed necessary. Prior to the issuance of an encroachment permit, the applicant shall deposit an inspection fee determined by the town engineer as adequate to recover the costs of inspection. (d) If any work requiring an encroachment permit is begun without a permit, the application fee shall be doubled as a penalty and to compensate for the extra staff time involved in inspecting completed or partially completed work. 19-4 Action on application--Appeal. (a)The following encroachment permit applications shall be reviewed and acted upon by the town council: (1) Encroachment permit applications entailing the construction of buildings, car decks, carports, garages or other perinanent structures of a substantial nature; (2) Encroachment permit applications that would have a substantial adverse effect on vehicular or pedestrian circulation, or on public health and safety. The town council may approve, approve with conditions or disapprove the application. If approved, such applications shall require a recorded encroachment permit. In no event shall construction of enclosed living space be allowed to encroach within a Town street, easement or right-of-way. (b) All other applications may be acted upon by the town engineer, who may approve, approve with conditions or disapprove the application. In his reasonable discretion, the town engineer may refer any application to the town council for action, or may require recordation of any encroachment permit. (c) The decision of the town engineer may be appealed to the town council pursuant to provisions of Chapter 16, section 16-3.080fthe Tiburon Municipal Code. 19-5 Revocation of permit--Relocation or removal of encroachment. (a) The town engineer may revoke any encroachment permit for reasonable cause, including but not limited to the failure to abide by conditions of approval. The decision of the town engineer to revoke a permit may be appealed to the town council pursuant to provisions of chapter 16, section 3.08 of the Tiburon Municipal Code. (b) Each encroaclTInent permit shall contain a statement that it is revocable by the town. (c) An encroachment permit shall contain a condition that in the event of the future improvement of the street, street right-of-way, or town-owned land, which in the discretion of the town engineer requires the relocation or removal of the encroachment, or in the event that the town engineer determines it is reasonably necessary for the public health, safety or general welfare, the permittee will relocate or remove the encroachment at his sole expense. In that event, the town engineer shall serve on the permittee 635068-2 2 . . . his written demand specifying the relocation or removal of the encroachment and specifying a reasonable time within which the relocation or removal must be commenced. The permittee mustthereafter diligently prosecute the relocation or removal to completion. . 19-6 Responsibility for repairs and maintenance. The permittee or his assigns in interest shall be responsible for maintenance and repair of any work for which a permit was issued. Should at any time any work performed under the encroachment permit become defective through lack of proper maintenance, such defect shall be considered as sufficient reason for revocation of the permit as provided in section 19-5. 19-7 Surety and maintenance bond-- Exceptions. Before granting a permit under the provisions ofthischapter, the decision-making body may require the applicant to file with the town a satisfactory surety and one year maintenance bond, or other form of monetary security acceptable to the town engineer, in such amounts as the decision-making body deems sufficient to guarantee completion and maintenance of the improvements. . 19-8 Bodily injury and property damage liability insurance. (a) Before granting a permit under the provisions of this chapter, the decision-making body may require the applicant to file with the town a certificate of insurance for bodily injury and property damage liability naming the town as additional insured. The minimum limits of such insurance shall be fixed by the town engineer in such amounts as he deems sufficient, and in fixing the limits he shall use as his basis thecost and hazards involved in the work sought to be performed under the permit. (b) In cases involving excavation, grading or trenching, the applicant shall be wholly responsible for locating any underground utilities. 19-9 Emergency excavations. A permittee may excavate openings in town streets or street right-of-ways to make repairs in the case of an emergency requiring immediate action. In such cases, any affected utility companies and the town engineer shall be promptly notified of any such action and such permittee, at his own expense, shall immediately replace such street or street right-of-way in as good condition as before such excavation. 19-10 Penalty for violations. In addition to all other remedies available under this Code or state law, any violation of this chapter shall be subject to abatement as a public nuisance. All costs relating to the enforcement ofthis chapter shall be borne by and recoverable from the person in violation thereof. SECTION.1. Chapter 19A of the Tiburon Municipal Code is hereby added to the Tiburon Municipal Code, to read as follows: . 635068-2 3 Sections: 19A-OI0 19A-020 19A-030 19A-040 19A-050 19A-060 19A-070 19A-080 19A-090 19A-I00 19A-110 19A-120 19A-130 19 A -140 19A-150 19A-160 19A-170 19A-180 19A-190 19A-200 19A-210 19A-220 19A-230 19A-240 19A-250 19A-260 19A-270 19A-010 Chapter 19A Use of Public Right-of-Way . Purpose; authority Definitions Agreement required Exemptions; Existing agreements Application Application - Fee Approval and execution of agreement Terms of agreement Amendment; application and determination Renewal; application and determination Right-of-way usage fee Security Use of facilities; change in use Transfer of agreement Nonexclusive use; limitations Facilities - Installation Facilities - Relocation; removal Facilities - Abandonment; removal Damage to facilities and public property Indemnification Insurance Timing of installations; special right-of-way restoration standards Violations; penalties; remedies Rights reserved to the Town Conflicts with other local laws Administrative Actions Appealable Severability . Purpose; authority. A. The public rights-of-way are unique public resources held in trust by the Town for the benefit of the public. These physically limited resources require proper management by the Town to maximize their efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, and to minimize the inconvenience to and negative effects on the public from private uses of the public rights-of-way. Under applicable state and federal law including, but not limited to Section 253(c) of the Telecommunications Act of 1996, the Town has the power to manage its public rights-of-way and to obtain reasonable and fair compensation for its use. The Town recognizes that California Public Utilities Code Sections 7901 and 7901.1 currently limit the Town's power to control use of B. 635068-2 . 4 . . . the public rights-of-way by telephone. companies as that term is used by such statutes, to time, place and manner regulations. The provisions of this Chapter, including but not limited to the provisions regarding the consideration, amendment, renewal, transfer and implementation of right-of-way agreements, shall' be applied to telephone companies in accordance with the requirements of California Public Utilities Code Sections 7901 and 7901.1 C. The purpose of this Chapter is to serve and further the purposes identified above and to enable the Town to treat similarly persons who are making a similar use of the Town's public rights-of-way. 19 A-020 Definitions. For purposes of carrying out the intent of this Chapter, the following words, phrases, and terms shall have the meanings set forth herein unless a different meaning is clearly intended by the use and context of the word, phrase or term. A. "Engineer" means the Town Engineer or his designee. B. "Facility" means any fiber optic, coaxial, or copper cable, telephone, telecommunications, electric or other wire or line, oil, gas, or other pipeline, duct, conduit, cabinet, tunnel, vault, equipment, drain, manhole, splice box, surface location, marker, pole structure, utility, or other appurtenance, structure, property, or tangible thing owned, leased, operated, or licensed by a person and located or proposed to be located in, upon, above, beneath, or across any public right-of-way. C. "Licensee" means a person with whom the Town has executed a right-of-way agreement under this Chapter or any lawful successor, transferee, or assignee of such person. D. "Local agency" means a local public entity as defined by Government Code Section 54980(b). E. "Right-of-way agreement" means the authorization granted by the Town to a person under this Chapter giving the person a non-exclusive right to occupy certain space in, upon, above, beneath, or across any public right-of-way for the purpose of providing a specified service. F. "Person" means any person, business, firm, corporation, or other legal entity who places, constructs, owns, controls, operates, manages, or uses any facility in, upon, above, beneath, or across any public right-of-way. G. "Public right-of-way" means the area in, upon, above, beneath, or across any Town-maintained public street, road, lane, court, alley, boulevard, sidewalk, median, parkway, or easement for vehicular travel, as defined in the Town road list. "Public right-of-way" does not include any trail, pathway or lane used exclusively for pedestrian or bicycle use. H. "Standard specifications" means the then current version of the standard specifications, standard drawings, and uniform construction standards adopted by resolution of the Town Council. 19A-030 Agreement required. No person shall place, construct, own, control, operate, manage, or use any facility in, upon, above, 635068-2 5 beneath, or across any public right-of-way without first obtaining a right-of-way agreement from the Town for such purpose. A right-of-way agreement may authorize multiple facilities and facilities . constructed over a period of time. The execution of a right-of~way agreement shall not diminish, abrogate, or otherwise affect a licensee's obligation to comply with any other applicable provision of this Code or other Town ordinances or regulations, or state or federal law, including, but not limited to, the following: A. Any permit or authorization required for the privilege of transacting business within the Town as required by the Code or ordinances of the Town. B. Any permit, agreement, or authorization required in connection with activities in, upon, above, beneath, or across the public right-of-way, including by way of example but not limitation, road work, road excavation, use, removal and relocation of property within a road, or other road work. C. Any permits or agreements for occupying any other property of the Town to which access is not specifically granted by the right-of-way agreement including, without limitation, permits and licenses for placing devices on or in poles, conduits, or other structures or facilities owned by the Town or other governmental entities. 19A-040 Exemptions; existing agreements. The right-of-way agreement requirement imposed by Section 19A-030 shall not apply to the following persons or facilities: A. Any person who is a party to an existing agreement or franchise with the Town that authorizes the . use of the public right-of-way, and which agreement or franchise is in full force and effect on the effective date of this Chapter, shall not be subject to section 19A-030 until such time as the existing agreement or franchise expires or is terminated. If an existing agreement or franchise for use of the public right-of-way contains within it a provision for the renewal or extension of the agreement or franchise, then the renewal or extension shall be negotiated and executed pursuant to the terms of this Chapter. B. Any facility the Engineer determines in writing (i) is an insignificant impact or encroachment on, or use of .the public right-of-way, and (ii) does not inconvenience or jeopardize the public's continued use of the public right-of-way. C. Any facility consisting of a single pole with attachments and appurtenant equipment provided that the following conditions are met: 1. All appurtenant pedestals, cabinets and other equipment occupy less than fifty (50) square feet of public right-of-way. 2. The total excavation for the pole and all appurtenant equipment and telecommunications lines does not exceed two-hundred (200) linear feet of public right-of-way. D. Any facility temporarily placed in the public right-of-way for a period not to exceed one (1) year, when such facility has been otherwise approved by the Engineer. . 635068-2 6 . .c. F. . E. Any person who is a party to an existing cable television franchise agreement with the Town or an existing cable television or telecommunications franchise agreement with the Marin Telecommunications Agency. F. Any person placing or constructing a facility in the public right-of-way pursuant to an encroachment permit issued prior to the adoption of this Chapter. Any person or facility exempted by this section' from the right-of-way agreement requirement, nonetheless shall obtain any and all encroachment, excavation or other permits (including, but not limited to Design Review or a Use Permit) required by this Code before commencing any work within a public right-of-way. 19A-050 Application Application for a right-of-way agreement shall be in writing, shall be filed with the Engineer, and shall contain the following information: A. The name, mailing and email address, telephone number, and facsimile number of the applicant. B. A detailed statement and description of the facilities proposed to be placed, constructed, owned, controlled, operated, managed, or used by the applicant; the proposed location of the facilities; the manner in which the applicant proposes to place, construct, own, control, operate, manage, or use the facilities; the services provided by the facilities and the extent and manner in which existing or future poles or other facilities of other persons will be used. A detailed description and location map of the public rights-of-way or other public places within which the applicant proposes or seeks authority to place, construct, own, control, operate, manage, or use any facility; a detailed description and location map of the facilities to be installed in the public right-of-way and any adjacent public or private facilities, or property; a detailed description of the proposed traffic control plans and road repairs; and a construction schedule. The Engineer may allow the applicant to provide a detailed description of the specific design of the facility and the construction schedule to be submitted at the time an application for an encroachment permit is filed. D. Satisfactory evidence demonstrating the applicant's 'financial ability to construct, operate and maintain the proposed facilities. E. Copies of all licenses, permits, franchises, or other written authorizations received by the applicant from the Federal Communications Commission, the California Public Utilities Commission, or any other federal or state regulatory commission that are required for the applicant to construct, operate or maintain the proposed facilities. The Town may, at any time demand, and applicant shall provide within the time required supplementary, additional or other information reasonably necessary to determine whether the requested right-of-way agreement should be granted under the criteria set forth in Section 19A.19A.070. Such information may include the completion of a standard questionnaire for right-of-way users. 635068-2 7 G. Documentation of compliance with the notice required under Section 19A-220.D. 19A-060 Application - Fee. . Each application for a right-of-way agreement shan be accompanied by payment to the Town of an application fee in an amount determined by the Town necessary to pay all estimated expenses incurred by the Town in connection with the processing of such application and the execution of a right-of-way agreement, including any expenses incurred by the Town for outside technical or legal services to review such application or agreement. In the event the Town subsequently determines the initial application fee is insufficient to pay for all expenses, it may require the applicant to pay an additional application fee in an amount sufficient to cover the additional estimated expenses. No portion of the application. fee shall be considered a tax, compensation or revenue due to the Town under this Chapter or Code, or any other local, state or federal law for use of the public right-of-way. 19A-070 Approval and execution of agreement. A. Upon receipt of an application for a right-of-way agreement which is determined to be complete by the Engineer, the Town Council shall consider the application and may, by resolution or ordinance, grant or deny the requested right-of-way agreement. If the right-of-way agreement is granted, the application submitted shall constitute and form part of the right-of-way agreement as executed to the extent not inconsistent therewith. If the application is denied, the resolution shall include the reasons for denial. The decision of the Town Council shall be final. B. In considering whether to grant or deny a requested right-of-way agreement, the Town Council shall apply the following criteria: 1. The applicant's ability to install, maintain and operate the facilities described III the application in a safe, proper and lawful manner. . 2. The capacity of the public rights-of-way identified in the application to accommodate the applicant's proposed facilities and any foreseeable additional facilities of the applicant or other licensees which may need to be accommodated. 3. The Town's future plans for the affected public rights-of-way. 4. Whether any damage or disruption of public or private facilities, improvements, service or landscaping by the proposed use or its proposed location will occur. 5. Whether the public's right to use the public rights-of-way will be unreasonably interfered with or disrupted. 6. The availability of alternative routes or locations for the applicant's proposed facilities that will avoid or mitigate any adverse impacts potentially related to the proposed route or location. 7. Any licenses, permits, or franchises received by the applicant from the Federal Communications Commission, the California Public Utilities Commission, or any other . 635068-2 8 .c. . . federal or state regulatory commission or agency affecting the applicant's ability to install, maintain and operate the proposed facilities. If the right-of-way agreement is approved, the right-of-way agreement shall not be effective unless and until the Town and the licensee have executed a written right-of-way agreement that contains, at a minimum, the following: 1. The purpose, nature and specific uses of the facilities to be installed in the public right-of- way pursuant to the right-of-way agreement. 2. The right of the Town to audit the licensee to ensure such purposes and uses have not been violated. 3. The terms and conditions for licensee's use of the public right-of-way, including all conditions imposed by the Town Council in its approval of the right-of-way agreement. 4. The right-of-way usage fee, if any, or the methodology for determining the fee to be paid to the Town by licensee pursuant to section 19A.-l10. The Town may refuse to enter into a license agreement with any proposed licensee who fails to agree to pay the right-of-way usage fee established by the Town. 5. The permittee's responsibility to relocate the facilities at the permittee's expense upon receiving a written request from the Engineer within 180 days of receiving said request. 6. Incorporation of the provisions of this Chapter. 7. Any other provision determined to b e necessary 0 r prudent b y the Town to further the purposes and comply with the requirements of this Chapter. D. The approval and execution of a right-of-way agreement shall not exempt the licensee from obtaining any encroachment 0 r excavation permits 0 therwise required by this Code, including, without limitation, Chapter 19. No work shall be performed by any licensee in the public right-of- way before all required encroachment and excavation permits are granted or issued for the work. E. The Town Council may delegate its power to approve or deny an application for a right-of-way agreement under this section and its power to amend or renew an agreement under Sections 19A- 090 and 19A-100 to the Engineer. The Engineer shall exercise such power in accordance with the provisions of Sections 19A-070, 19A-090 and 19A-I00 except that the Engineer's decision shall be in the form of a written statement. The Engineer's decision may be appealed to the Town Council pursuant to Section f9A-260. 19 A-080 Term of agreement. , A right-of-way agreement executed under this Chapter shall be valid for the period of time stated in the agreement. 19A-090 Amendment; application and determination. 635068-2 9 A liceJlsee may apply to amend its right-of-way agreement to revise the right-of-way within which the licensee proposes to place, construct, own, control, operate, manage, or use its facilities, as long as the . type of facilities and the use of such facilities is already authorized by the licensee's existing right-of-way agreement. The amendment application shall contain the information required under section 19A-050, and shall be accompanied by the application fee specified in section 19A-060. Upon receipt of a completed amendment application, the Town Council shall, by resolution or ordinance, approve or deny the amendment application in ,whole, in part, or with additional conditions, applying the following criteria: A. The criteria set forth in section 19A-070. B. The applicant's history and current compliance with any applicable right-of-way agreement, this Chapter, or any other applicable local, state or federal law, regulation, or policy. C. The capacity of the roads, alleys, or other public rights-of-way identified in the amendment application to accommodate the applicant's facilities and uses of the public right-of-way. 19A-100 Renewal; application and determination. A licensee that desires to renew its right-of-way agreement may file an application with the Town for renewal, not more than one (1) year nor less than one hundred and eighty (180) days before expiration of its current right-of-way agreement. The renewal application shall contain the information required under section 19A-050, and shall be accompanied by the application fee specified in section 19A-060. Upon receipt of ~ completed renewal application, the Town Council shall, by resolution or ordinance, grant or . deny the renewal application in whole, in part, or with additional conditions, applying the following criteria: A. The criteria set forth in section 19A-070. B. the applicant's history and current compliance with any applicable right-of-way agreement, this Chapter, or any other applicable local, state or federal law, regulation, or policy. C. The continuing capacity of the roads, alleys, or other public rights-of-way identified in the renewal application to accommodate the applicant's facilities and uses of the public right-of-way. 19A-110 Right-of-way usage fee. Each right-of-way agreement granted under this Chapter is subjectto the Town's right, which is expressly reserved, to fix a fair and reasonable compensation to be paid by licensee for the rights granted in the right-of-way agreement. T he right-of-way agreement shall specify t he amount 0 f compensation tab e paid by the licensee for the use of the Town's right-of-way and the other privileges granted by the agreement. Compensation may be in the form of cash payments, in-kind contributions or other benefits of value paid or provided to the Town by the licensee or any combination of the foregoing. This usage fee shall be waived for right-of-way agreements approved and executed for right-of-way uses governed by the Broughton Act (Ca!. Pub. Uti!. Code Sections 6001 et seq.), the Franchise Act of 1937 (CaI. Pub. Uti!. Code Sections 6201 et seq.), Section 7901 of the Public Utilities Code, or Section 10101 of the . 635068-2 10 Public Utilities Code. To receive a waiver, the applicant shall submit information to indicate its use is governed by one of the preceding statutes. . 19A-120 Security. . . A. Prior to the issuance of any permit for construction in the public right-of-way, the Engineer may require licensee to deliver to the Town satisfactory security in the amount of one hundred and ten percent (11 0%) of the total estimated cost of all work to be performed under such permit, as determined by the Engineer. Such security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the Engineer. The security shall be provided in the manner required by the Engineer and maintained in full force and effect until the permitted work in the public right-of-way is completed to the satisfaction of the Engineer, at which time the amount of the ?ecurity shall be reduced to ten percent (10%) of the actual cost of the work. The reduced security shall be maintained by licensee for a period of one year as a guarantee that the work is 0 f good quality and free from any defective 0 r faulty material or workmanship. Any surety supplying a performance bond must be an "admitted surety insurer," as defined in Section 995.120 of the Code of Civil Procedure, authorized to do business in the State of California. Return of the security shall be conditioned upon licensee's faithful performance of all work in the public right-of-way specified in the applicable permit. In the event licensee fails to comply with any provisions of this Chapter related to such work, or any provision of any applicable right-of- way agreement or permit, or other approval related to such work, any damages or loss suffered by the Town as a result thereof shall be recoverable from the security, including but not limited to the full amount of any compensation, indemnification, cost of removal, or abandonment of any property of licensee, plus reasonable attorneys' fees and costs up to the full amount of the security. B. Neither the provisions of this section nor any damages recovered by the Town hereunder shall be construed to excuse licensee's faithful performance of any right-of-way agreement or limit the liability or damages of licensee under this Chapter, either to the full amount of the security or otherwise. In addition to its rights to take action under the security, the Town may pursue any other remedy provided by law. . 19A-130 Use of facilities; change in use. Licensee's facilities shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purposes and uses expressly set forth in licensee's right-of-way agreement. Licensee'shall not in anyway use, or authorize or allow another person to use, any facility subject to licensee's right-of-way agreement for any purpose or use other than the purposes and uses expressly set forth in the right-of-way agreement. 19A-140 Transfer of agreement or facilities. Except as otherwise may be provided in a right-of-way agreement, licensee shall provide the Town with thirty (30) days prior written notice of any proposed assignment or transfer of a right-of-way agreement or any facility permitted under such agreement: An assignment or transfer shall not be effective until the assignee or transferee agrees in writing to comply with and be subject to all terms and conditions of such agreement and this Chapter. Notwithstanding such assignment or transfer, licensee shall remain liable for 635068-2 11 :. any outstanding obligations. or liabilities incurred by licensee prior to such assignment or transfer. 19A-150 Nonexclusive use; limitations. . A. Any right-of-way agreement shall be for the nonexclusive use of the p ublic right-of~way. By executing a right-of-way agreement, the Town does not agree to restrict the number of right-of- way agreements to be executed that cover all or any part of the Town for any person in the same business, a related business, or a competing business as the licensee. B. A right-of-way agreement only authorizes licensee to use the public right-of-way specifically described in one or more encroachment permits issued by the Town, and the use of any other public property, whether located within or outside a public right-of-way, is strictly prohibited unless authorized by a separate agreement with the Town. C. No reference herein, nor in any right-of-way agreement, shall be deemed to be a representation or guarantee by the Town that its interest or other right to control the use of the property that is the subject of a right-of-way agreement is sufficient to permit its use for the purposes specified in the agreement. Any right-of-way agreement shall be deemed to grant no more than the rights which the Town may have the authority to grant. D. Any privilege claimed by licensee in any public right-of-way shall be subordinate to any prior lawful occupancy or use of the public right-of-way. E. Licensee shall have no recourse whatsoever against the Town for any loss, cost, expense, or damage arising out of any provision or requirement of this Chapter or of any right-of-Way., agreement executed under this Chapter or because of its enforcement. 19A-160 Facilities - Installation. A. Conformance with Applicable Law. No person shall place, construct, own, control, operate, manage, or use any facility in, upon, 'above, beneath, or across any public right-of-way without first obtaining all necessary or required permits, agreements, or approvals from the Town and all other governmental entities with jurisdiction over the facility or public right-of-way. All facilities shall be placed, installed or constructed and the right-of-way restored in accordance with the standard specifications adopted by resolution of the Town Council and any applicable special conditions or provisions imposed by the Town Councilor Engineer. All facilities shall be maintained in compliance with such permits, agreements, or approvals, and all applicable statutes, ordinances, rules, regulations, orders, and decisions issued by any federal, state, or local governmental body, agency, or court. B. Time, Place and Manner. All facilities shall be located, constructed, operated, and maintained in the time, place and manner that cause the least interference with the public's use of the public right-of-way, as determined by and approved by the Engineer. c. Key Map and Detailed Improvement Plan. Every person subject to this Chapter shall cause a key map and detailed improvement plan to be prepared and filed with the Engineer for review as part of its application for an encroachment permit which show all facilities to be located in the public . 635068-2 12 . . . rights-of-way, including the material of construction and horizontal and vertical locations with respect to the property lines and grade lines, existing utilities and all other pertinent facilities and information required by the Engineer. Unless exempted by state law, the key map and detailed improvement plan shall be prepared by a California registered professional civil engineer. Revisions shall be made to reflect comments of the Engineer prior to the issuance of any encroachment permit. Prior to requesting the issuance of an encroachment permit for installation of any facility, the key map and detailed improvement plan shall be filed by the applicant with any other entity that owns, operates, or manages facilities in the affected right-of-way, so that such entities may advise the Engineer as to any location, operation, or compatibility problems created by the applicant's proposed use of the right-of-way. D. Disclosure. Upon the request of any person who has contracted to perform work on a public right-of-way, persons subject to this Chapter shall provide accurate detailed information regarding the location of their existing and proposed facilities in the public right-of-way. E. Undergrounding. In those areas and portions of the Town where the transmission or distribution facilities of persons providing telephone service, cable service, or electric service are underground, all other facilities shall be constructed, operated, and maintained underground. In the event the applicant's facilities are included within any Town undergrounding district area, the applicant shall underground such facilities at applicant's own cost, unless specifically excepted in the resolution declaring the designated area an underground utility district. F. Pole Attachments. Where existing poles or other wire-holding structures are available for use, the Town Council may require such poles and structures to be used if the Board determines that the public convenience would be enhanced by such installation, and the terms of the use are just and reasonable. G. Above Ground Installations. Installations of any above ground equipment pursuant to a right-of- way agreement entered into pursuant to this Chapter, such as amplifiers and cabinet boxes, shall be subject to the prior approval of the Engineer. 19A-170 ]Facilities - Relocation; removal. , Every person subject to this Chapter shall, at its expense, protect, support, temporarily disconnect, relocate or remove from any public right-of-way, any facility owned, operated or m aintainedb y such person when required by the Engineer due to the use of the right-of-way by any federal, state or local agency. 19A-180 Facilities - Abandonment; removal A. Notice of Removal. In the event the use of any facility is discontinued for any reason for a continuous period of six (6) months, or in the event anyfacility has been installed in any public right-of-way without complying with the requirements of this Chapter, or in the'event the required right-of-way agreement is terminated or expires, the licensee of each facility shall promptly, upon being given prior written notice, remove from the public right-of-way all such facilities within the time period specified b y the notice, 0 ther than any facilities which the Engineer permits tab e abandoned in place. In the event of such removal, the area from which such facility has been 635068-2 13 removed shall be promptly restored pursuant to an encroachment permit granted by the Engin~er and in conformance with the standard specifications and any applicable special conditions or provisions. For the purposes of this Section, "abandoned" means that the licensee ceases to use . the facility and intends to never use the facility again. B. Abandonment. Any facility remaining in place one hundred and twenty (120) days after the delivery of the notice set forth in this section shall be considered permanently abandoned. The Engineer may extend such time as may be necessary under the circumstances. Any facility abandoned in place in the public right-of-way shall be abandoned in such manner as the Engineer shall prescribe. Upon permanent abandonment, the facility shall become that of the Town and the licensee of such facility shall submit to the Engineer an instrument in writing, to be approved by the Town Attorney, transferring ownership of the facility to the Town. Instead of accepting a facility as being abandoned pursuant to this subsection (B); the Town in its sole discretion may remove the facility at licensee's sole expense, and licensee shall promptly reimburse the Town for the costs of such removal within thirty (30) days after receiving an invoice from the Town. 19A-190 Damage to facilities and public property. Any damage done directly or 'indirectly to any public right-of-way or other public property or improvement, by any person subject to the Chapter, shall be promptly repaired, at the person's sole cost and expense, to the complete satisfaction of the Town. Alternatively, the Town may, in its sole discretion, choose to perform the repair work itself, in which case the responsible person shall reimburse the Town for the full costs of the repair work within thirty (30) days after receiving an invoice from the Town. 19A-200 Indemnification. . Every licensee shall indemnify, defend and hold harmless the Town, its officials, agents, employees and volunteers against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, including but not limited to attorneys' and expert fees and court costs, arising out of or connected with the performance of a right-of-way agreement, the installation and maintenance of any facilities or the use of any public right-of-way by licensee or licensee's employees, officers, officials, agents, transferees, contractors or subcontractors. This obligation to indemnify the Town under this section shall not apply to any liabilities, losses, claims, actions, causes of action or demands arising from Town's sole negligence, willful misconduct or criminal acts. 19A-210 Insurance. Every licensee shall procure and maintain a policy of general liability insurance to insure such person and the Town against all liability for personal injury, including accidental' death, as well as claims for property damage which may arise ,from or which concern the activities of the person or the existence of the person's facilities in the public right-of-way. The Town shall be covered as a primary insured by said policy. The amount of- such insurance and any other insurance requirements shall be as provided in the right-of-way agreement and shall be subject to the review and approval of the Town Attorney. 19A-220 Timing oflnstallations; Special Right-of-Way Restoration Standards. . 635068-2 14 .A. . . No excavation shall be permitted in any public right-of-way that was constructed or resurfaced during the five (5) year period prior to the proposed excavation. This prohibition shall not apply to emergency excavations approved by the EngineeL A proposed excavation shall be considered an emergency if it is necessary to repair or replace underground facilities in order to prevent a disruption of services to customers or prevent injury or damage to life or property. This prohibition also shall not apply to excavations required to provide essential utility services to a property where there are no other reasonable means of providing such services to the property or where the work is mandated by state or federal laws or orders and the excavation cannot be reasonably avoided as determined in both events by the Engineer. In the event of an excavation permitted by this subsection (A), the affected right-of-way shall be restored in accordance with the right-of-way restoration standards approved by resolution of the Town Council. B. The special right-of-way restoration standards described in subsection (A) above also shall apply to the excavation of right-of-way that has been constructed or resurfaced more than five (5) years before the proposed excavation, provided that the right-of-way has a Pavement Condition Index of . 70 or higher as described in the Town's Pavement Management Program. c. On an annual basis, the Town and each utility or other user of the public rights-of-way shall coordinate their current year and to the extent practicable their five year capital improvement programs forpublic right-of-way installations in, order to reduce the number of excavations that occur. Such coordination shall occur annually at the ti'me and in the manner specified by the Engineer. The Engineer may submit an annual report to the Town Council on the results of this coordination process. This report may include recommendations on the timing of Town right-of- way projects to accommodate road projects planned by utilities or other users of the public right- of-way. D. Prior to submitting an application for a right-of-way agreement, the applicant shall notify in writing, on a form approved by the Town, other existing or potential right of way users who are shown on the list of users maintained by the Town. The notice shall describe the work to be performed, the specific right-of-way that will be used, and the time when such work will be performed. All persons receiving such notice shall have thirty (30) days from the date thereof to inform in writing the Town and applicant sending the notice that such person desires to perform work jointly with the applicant. All work jointly performed by other persons shall be performed pursuant to right-ofway agreements, encroachment permits and excavation permits. The failure to timely respond to the notice and timely obtain any required right-of-way agreement and permits before the proposed work commences shall result in the person receiving the notice being prohibited from working in the designated right-of-way for a period of one year from the date that the excavation work has been completed and the right-of-way has been restored to the satisfaction of the Town. This subsection D shall apply only to work that involves excavation in the public right-of-way. Excavation includes, but is not limited to, trenching and subterranean boring. 19A-230 Violations; penalties; remedies. A. Criminal Penalties. Any person who violates any provision of this Chapter shall be guilty of a misdemeanor, unless the violation is charged as an infraction. 635068-2 15 B. Termination. If a licensee breaches a right-of-way agreement, the Town may, following reasonable notice, an opportunity to cure, and a hearing, terminate the right-of-way agreement or . reduce the term of the agreement. C. Cumulative Remedies. The remedies under this section are non-exclusive and cumulative, and shall be in addition to any other remedy the Town may have at law. Without limiting the foregoing, in the discretion of the Engineer, violations of this Chapter may a Iso be prosecuted pursuant to Chapter 31 of the Municipal Code. 19A-240 Rights reserved to the Town. A. Nothing in this Chapter shall contract away, modify, abridge, impair, or affect, in any way, to any extent, the right of the Town to acquire any facility located in the public right-of-way through the exercise of the right of eminent domain. B. There is reserved to the Town every right and power which the Town has under any local, state or federal law, and every person subject to this Chapter, by its use of the public right-of-way, agrees to comply with any actions or requirements of the Town in its exercise of such rights or powers. C. Neither the execution of a right-of-way agreement nor any provisions of this Chapter shall constitute a waiver or bar the exercise of any governmental right or power of the Town, including the Town's authority to make any proper public use of the public right-of-way. D. The Town Council and the Engineer may do all things which are necessary and convenient in the exercise of the Town'~ jurisdiction under this Chapter. . E. The Town shall have the right to supervise all construction or installation work performed subject to the. provisions of this Chapter and make such inspections as it finds necessary to ensure compliance with the terms of this Chapter, a right-of-way agreement, an encroachment or excavation permit or any other local, state, or federal law, regulation, permit, or standard. 19A-250 Conflicts with other laws. In the event of any conflict between the provisions of Chapter 19 of this Code and this Chapter, the more stringent provisions shall control. 19A-260 Administrative Acti9ns Appealable Any person aggrieved by any determination, interpretation, decision, conclusion, decree, judgment or similar action taken by any administrative personnel under the provisions of this chapter may appeal the action to the Town Council. Appeals of administrative citations shall be filed and processed pursuant to Chapter 31, article IV. All other appeals shall be addressed to the Town Council, in writing, and shall follow the procedure set forth in Chapter 16, section 16-3.08, except that any appeal shall be filed in the office of the Town Council not later than 5:00 PM of the fifth working day following the date of the action from which an appeal is . 635068-2 16 . taken. Appeals shall be accompanied by the filing fee as specified in then-current Town policy or resolution governing appeals from administrative decisions. Upon receipt 0 fan appeal the Town Council s hall hold a hearing within 60 days fromf eceipt 0 f t he appeal and give the applicant notice thereof by registered or certified mail addressed to the applicant at the address shown on the application. At the conclusion of the hearing, the Town Council shall render a decision, which decision shall be final. SECTION 4 SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a. court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 5 EFFECTIVE DATE. . This Ordinance shall take effect and be in force thirty days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council At least five days priorto its adoption and within fifteen days after its adoption, a summary of this Ordinance, the latter summary to include the names of those Town Council members voting for and against the Ordinance, shall be published once in a newspaper of general circulation printed and published in the County of Marin and circulated in the Town of Tiburon. At the time of the publication of each summary, the Town shall post in the Office of the Town Clerk a copy of the full text of this Ordinance in compliance with Government Code Section 39633(c)(1). PASSED AND ADOPTED at a regular meeting ofthe Town Council of the Town of Tiburon, held on the _ day of , _, by the following vote: AYES: NOES: ABSENT: MAYOR, TOWN OF TIBURON . 635068-2 17 taken. Appeals shall be accompanied by the filing fee as specified in then-current Town policy or resolution governing appeals from administrative decisions. Upon receipt 0 fan appeal the Town Council shall h old a hearing within 60 days from receipt 0 f t he appeal and give the applicant notice thereof by registered or certified mail addressed to the applicant at the address shown on the application. At the conclusion of the hearing, the Town Council shall render a decision, which decision shall be final. . SECTION 4 SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 5 EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council At least five days prior to its adoption and within fifteen days after its adoption, a summary of this Ordinance, the latter summary to include the names of those Town Council members voting for and against the Ordinance, shall be published once in a newspaper of general circulation printed and published in the County-ofMarin and .. circulated in the Town of Tiburon. At the time of the publication of each summary, the Town shall post in the Office of the Town Clerk a copy of the full text of this Ordinance in compliance with Government Code Section 39633(c)(I). . PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, held on the _ day of , _, by the following vote: AYES: NOES: ABSENT: MAYOR, TOWN OF TIBURON ATTEST Clerk . 635068-2 17 .< .... . . . May 14, 2002 Board of Supervisors County of Marin Civic Center San Rafael, CA 94903 SUBJECT: Second Reading and Merit Hearing of Proposed Ordinance Approving Adding Chapter 13.13 to the Marin County Code, Use of Public Right of Way Dear Board Members: RECOMMENDATION: It is recommended that your Board waive the formal reading of the ordinance adding Chapter 13.13 to the Marin County Code, which requires a right-of-way agreement and imposes additional standards for the installation of private facilities in public streets, conduct the merit hearing and adopt the ordinance. SUMMARY: The County Code requires that an encroachment permit be issued by the County to anyone wishing to install private facilities such as utilities and telecommunications lines in the public right-of-way. Staff believes that the County's current regulations are inadequate to protect the County's streets and. its residents from the expected proliferation of requests by private companies and in particular telecommunications providers to install private facilities' in the public streets. The proposed ordinance adds an additional layer of regulations to the existing requirements for street encroachments. The ordinance requires that a right-of-way agreement be approved by the Board of Supervisors for any major encroachments. This agreement will impose construction requirements to protect the integrity of the County's streets, ensure that adequate financial security and insurance is provided for any private work in the County's streets, and require a right-of-way fee to be paid by any users not exempt from such a fee by state law. A more detailed discussion is attached as Exhibit "A." FINANCIAL IMPACT: Increased DPW staff to process applications and enforce agreements, offset by application fees. REVIEWED BY: [ ] [X ] [ ] Auditor Controller County Counsel Human Resources [X ] [ ] [X ] N/A N/A N/A Very truly yours, Craig Tackabery Senior Civil Engineer cc: Mehdi Madjd-Sadjadi, Farhad Mansourian, Robert Beaumont C: \Documents and Settings \adanforth,TIBURON,OOO\Local Settings\ Temporary Internet Files\OLK12\BLTR 221.doc Exhibit" A" . Almost two years ago, the Public Works Directors in Marin County recognized that existing encroachment regulations in each of the Cities and Towns and the County were inadequate to protect the public streets and avoid excessive inconvenience to their residents and the traveling public from the anticipated increase in requests by businesses to install facilities in their streets. Many cities and counties throughout the state have seen the quality and safety of their streets being significantly degraded by repeated street cuts by utilities and telecommunications providers. We expect that in the future there will be more encroachment requests by the increasing number of telecommunications providers who need to use the public right-of-way to. provide their services. Representatives of the Marin Cities and Towns, the County and the Marin Telecommunications Agency met regularly to discuss the development of new encroachment regulations. The goal was to find better ways to protect the public streets and explore whether compensation could be obtained for the use of the public right-of-way by private parties. Another primary goal was to develop a standard regulatory framework throughout Marin to simplify and expedite the processing of applications that covered multiple jurisdictions. After reviewing new regulations adopted by a number of public agencies throughout the State, it was agreed to use an ordinance adopted by the City of Corona as a model upon which to base our encroachment regulations. Special Legal Counsel was hired to assist in this effort. After several more meetings, a model ordinance was finalized and presented to the Board. At that time, representatives of the wireless industry and PacBell objected to various provisions of the ordinance. The Boar<;i delayed taking action on the ordinance so that additional meetings could be held with the objective of resolving the disputed issues. While these discussions were taking place, two federal court decisions were rendered pertaining to local right-of-way management ordinances. The first case was the Ninth Circuit decision in City of Auburn v. Qwest Communications Corp, The second decision was the federal District Court decision in Qwest Communications Corp. v. City of Berkeley. In both cases, the courts struck down ordinances that were aimed only at telecommunications providers. . The proposed ordinance for Marin County is substantially different than the ordinances struck down in the Auburn and Berkeley cases. One important difference is that the proposed ordinance does not target telecommunications providers, but applies to all private users of the rights-of-way. The original version of the proposed ordinance also did not contain several of the objectionable provisions of the invalidated ordinances. Nonetheless, after reviewing these two cases, we made changes t6 the proposed ordinance to strengthen the County's protection against any legal challenge. With these changes and the changes agreed upon with the representatives of the telecommunications industry that we met with, we believe that the revised ordinance satisfactorily addresses the earlier concerns raised with the Board. The proposed ordinance does not replace the County's current encroachment permit regulations, but instead supplements them. The key terms of the ordinance are the following: 1. A right-of-way agreement with the County must be entered into by any person installing any facility in the public right-of-way. FacilIty is broadly defined to include telephone, telecommunications, electric, gas, or water lines or any other physical improvement. Person is defined to mean any private party. Local public agencies such as the County and any special district are exempted from the agreement requirement. Also exempted are any persons that have an existing agreement or franchise with the City to use the public right-of-way such as PG&E or AT&T for cable television services and any person that will only be making a minor or temporary encroachment as determined by the Public Works Director. An example of a minor or temporary encroachment is work done by a developer on a street adjacent to a development project. In addition, certain wireless installations are exempted provided that the facility consists of a single pole, all appurtenant equipment occupies less than 50 square feet of public right-of-way and the total excavation for the entire facility does not exceed 200 linear feet of public right-of- way. The addition of this exemption satisfies the concerns of the wireless industry representatives. 2. An application for the agreement is required that must be accompanied by an application fee that will cover all the County's costs in reviewing the application, including any outside consultant or legal fees. The C: \ Documents and Settings\adanforth,TIBURON,OOO\Local Settings\ Temporary Internet Files \OLK12\BLTR 221.doc . . . . application is required to contain a description and maps showing the work to be performed. A construction schedule also must be submitted. 3. The right-of-way agreement must be approved by the Board of Supervisors. If an application is denied, the reasons for denial must be set forth in a resolution. Specific criteria are set forth in the ordinance for approving or denying an application. 4. The right-of-way agreement must contain the following provisions: a. A description of the facilities authorized to be installed. b. A right-of-way usage fee when such fee is permitted to be imposed by the County under state law. Such fee may consist of a cash payment, in-kind contributions (such as conduit or dark fiber), or other benefits of value to the County, or any combination of the foregoing. c. The submission of financial security to ensure the satisfactory completion of the work in the amount of one hundred and ten percent of the value of the work at the time an encroachment permit is issued if such security is considered necessary by the Director of Public Works due to the scope of the work The security may consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the Director. e. The agreement of the private party to relocate its facilities at its expense any time in the future that such relocation is required in order to accommodate a public project in the right-of":way.. f. Standards for the removal of the facility upon the expiration or termination of the agreement. If the private party fails to properly remove its facility, the County can do so at the expense of such party. g. Indemnification and insurance requirements. 5. In addition to obtaining a right-of-way agreement, any user of the public right-of-way still must obtain any encroachment and excavation permits currently required by the County. 6. Prior to submitting an application for a right-of-way agreement, the applicant must notify in writing on a form approved by the County other existing or potential right- of- way users of the work proposed. Such persons noticed will have thirty days to respond as to whether they desire to perform work jointly with the applicant. The failure to timely respond to a notice will result in such person being prohibited from working in the designated right- of-way for a period of one year. . 7. Regardless of whether a person is required to obtain a right-of-way agreement, no person will be permitted to excavate any streetthat was constructed or resurfaced during the past five years. There are limited exceptions to this prohibition, but anyone exempted from the prohibition must restore the street to a higher standard than would be required for an older street. These same requirements apply to any street with a Pavement Condition Index of 70 or higher as described in the County's Pavement Management Program. These type of streets are older streets that are in very good condition similar to a street that has been constructed or resurfaced in the past five years. The proposed ordinance will establish much more comprehensive and effective regulations than currently exist for the protection of the public rights-of-way. It also provides a method for obtaining compensation from right-of-way users when permitted by state law, C:\Documents and Settings\adanforth,TIBURON,OOO\Local Settings \ Temporary Internet Files\OLK12\BLTR 221,doc RIGHT OF WAY AGREEMENT BETWEEN . THE CITY OF AND METROMEDIA FIBER NETWORK SERVICES, INC. This Agreement is entered into as of May _, 2001 ("Effective Date") by and between the City of , a municipal corporation (the "City") and Metromedia Fiber Network Services, Inc., a corporation organized and existing under the laws of the State of Delaware ("Company"). Recitals A. Chapter _ of the Municipal Code (the "Code") requires all persons proposing to place, construct, operate or use any facility in the public right-of-way to enter into a right-of-way-agreement with the City. B. Company desires to install a fiber optic telecommunications system consisting in part of a bundle of optical fibers and related facilities ("the System") within the public rights- of-way owned and controlled by the City. The System is shown and described in the application for this Agreement on file with the Director of Public Works as may be modified by subsequent permits approved by the City. Such application is incorporated into this Agreement by reference as if fully set forth herein. . C. The purpose of this Agreement is to provide the general framework within which Company will install the System. The specific physical design of the System and detailed approvals of the installation of the System will occur throughthe issuance of one or more encroachment permits by the City. This Agreement shall not be deemed to approve any particular design or installation technique. This Agreement shall apply to the System regardless of whether Company utilizes conduit or other facilities owned by third parties within the public rights-of-way. D. Company asserts that it may under federal and state law construct the System along and upon any public road or highway within the City without obtaining a franchise from the City and without paying rent or a franchise fee to the City. E. City asserts that, because, among other reasons, Company's service offerings are not limited exclusively to voice communications and other services associated with voice communications, it has the legal authority to require company to enter into a franchise or other agreement and to pay rent or a franchise fee to the City as a condition of constructing and operating the System on public roads and highways within the City. . 11373/0001/MFN ROW AGREEMENT.DOC j F. This Agreement is intended as a settlement and compromise between the parties in lieu of litigation, with Company agreeing to perform beyond what it believes it can be legally required to do, and City agreeing to accept less than it believes it can require under federal, state and local law, and with both parties agreeing to refrain from instituting a legal action concerning this Agreemynt as to their respective legal rights in connection with the assertions set forth in Recital D and Recital E, above. . Agreements In consideration of the Recitals set forth above, the terms and conditions of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 INSTALLATION OF SYSTEM . 1.1. Permitted Installation. Subject to the issuance of encroachment permits, during the term of this Agreement, Company may install and maintain the System within the City's public rights-of-way in compliance with all provisions of this Agreement. Company shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner, free of defects. 1.2 Compliance with Code. Company shall comply with the provisions of Chapter _ of the Code which are incorporated herein by reference as if set forth fully herein. . 1.3 Encroachment Permits. Company shall obtain encroachment permits from the City for the installation of the System and for any other work within the City's public rights- of-way as required by Chapter _ of the Code. The installation of any above-ground equipment, such as amplifiers and cabinet boxes, shall require the approval of the City's Director of Public Works and any other officials specified by the Code. Company shall submit all plans, schedules, and information required by the Code and the Director of Public Works. Company also shall submit all required fees and bonds or other security required by the Director of Public Works in accordance with Chapter _ of the Code. All work within the public rights-of-way shall be performed in strict compliance with an encroachment permit. Company shall comply with all regulatory requirements, including, without limitation, compliance with Certificate of Public Convenience and Necessity Nos. 98-07-108 and 00-09-039 issued by the California Public Utilities Commission, the California Environmental Quality Act, and City requirements regarding directional boring. Company shall promptly submit to City accurate as-built plans and record drawings certified by a professional engineer showing in detail, the location, depth, and size of all Company facilities in the public rights-of-way within sixty (60) days of completion of the System. Such plans shall be submitted in the form and with the detail required by the Director of Public Works. Company shall submit updated as-built plans for anyexpansion ofthe System that increases the amount of right-of-way used or occupied by the Company within sixty (60) days after the completion of such expansion.. 11373/0001/MFN ROW AGREEMENT.DOC 2 1.4 Coordination of Excavation with Other Permittees. At least thirty (30) days . prior to commencing excavation work in the public right-of-way pursuant this Agreement, Company shall notify in writing, on a form approved by the City, other existing or potential right-of-way users shown on the list of users maintained by the City. The notice shall describe the work to be performed, the specific rights-of-way that will . be used, and the time when such work will be performed. All persons receiving such notice shall have thirty (30) days from the date thereof to inform in writing Company and the City that such person desires to perform work jointly with Company. To the extent reasonably feasible, Company shall coordinate its work with any persons timely informing Company that it desires to perform work jointly in the right-of-way provided that such persons obtain the required right-of-way agreement and permits from the City as required by Chapter _ of the Municipal Code before such persons install any facilities or use any facilities installed by Company on their behalf. Any work performed by Company on behalf of another person must be authorized by an encroachment permit issued by the City. 1.5. Use of Other City Property. Company is not authorized to use any City property located outside ofthe public rights-of-way, nor any City infrastructure located within the public rights-of-way, such as light poles, without the express written agreement of the City. 1.6 Membership In Underground Service Alert. Pursuant to GQvernment Code Section 4216.1, Company shall become a member of Underground Service Alert- Northern California. . . 1.7 Completion of System. Once apermit is issued, Company shall complete the construction and installation of the System in accordance with the construction schedule approved by the Director of Public Works in the permit. ARTICLE 2 AUTHORIZED USES 2.1 Permitted Uses. This Agreement authorizes the use of the System by Company to provide all services it is otherwise permitted to provide, including, without limitation, those telephone services described in its Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission and the lease of unbundled network elements. Notwithstanding the foregoing, this Agreement does not authorize the Company to use the System to provide Cable Service or video programming to subscribers within the City, or to operate an Open Video System, as those terms are defined in federal law (toget~er Video Programming Services). Company represents and warrants that it will not use the System to provide Video Programming Services to subscribers in the City without obtaining a separate cable television franchise from the Marin Telecommunications Agency (the MTA"). Company also represents and warrants that it will include a provision in its customer contracts requiring its System lessees and transferees to obtain all . necessary City or MT A authorizations priorto using the System and Company agrees to take all reasonable actions necessary to enforce such a provision. 11373/0001lMFN ROW AGREEMENT. DOC 3 . . . 2.2 Audit of System Use. The City shall have the right to review and inspect the books and records of Company in order to verify that the System is being used for the uses permitted by this Agreement. Such review may include Company's lists of wholesale customers and customers that resell services provided over the system. The City acknowledges that some of the information, including Company's customer lists, may be confidential and proprietary and shall be treated by the City accordingly to the extent permitted by law. The City may review Company's books and records at the Company's nearest business office, provided that office is located within twenty-five (25) miles of City. If Company's nearest business office is not located within twenty-five miles of City, Company and City agree to identify a mutually convenient document production and review site that is no more than twenty-five (25) miles from City. ARTICLE 3 RIGHT-OF-WAY USAGE FEE 3.1. Fee. 1. Installation Rate. Company shall pay annually to the City the sum of one dollar and fifty cents ($1.50) per linear foot for conduits, ducts, innerducts, fiber cables, and other similar facilities (together "Conduit") installed by Company in the City's public rights-of-way. The total number of installed Conduit shall not be limited, but the total size of such Conduit installation shall not exceed a diameter of thirty six inches (36"), excluding other facilities such as vaults and manholes. 2. Occupancy Rate. Company shall pay annually to the City the sum of seventy five cents ($.75) per linear foot for o,ccupancy of Conduit purchased or leased by Company from third parties, regardless of the number of conduits. 3.2 Time of Payment. Company shall pay the total sum due under Sections 3.1 of this Agreement for the entire six year term of the Agreement in three equal installments. The first installment shall be paid upon the issuance of the required encroachment permits for construction of the System in Marin County. The second installment shall be paid upon completion of construction of the System. The third and final payment shall be made six (6) months after completion of construction of the System. A late payment charge on any unpaid amount shall accrue from the due date until paid at a rate of one and one-half percent (1-1/2%) per month until paid. City shall have the rightto audit Company's books and records to ensure proper calculation of payments, subject to any reasonable Company, requirements to ensure confidentiality of the books and records. 3.3. Place of Payment. Payment pursuant ato this section shall be made to: City of 3.4 Satisfaction of Fee Obligation. The provisions of this Article and Section 4.1 shall satisfy in full, for the term of this Agreement as may be extended, the right-of-way usage 11373/0001/MFN ROW AGREEMENT. DOC 4 " fee requirements of Section _ of the Code related to the installation and maintenance of the System. . ARTICLE 4 TERM AND TERMINATION 4.1. Term and Extension. The initial term of this Agreement shall be for six (6) years after the date ofthis Agreement and may be extended only upon the mutual agreement of the parties. Upon the commencement of any extended term, the installation rate and the occupancy rate of compensation under Section 3.1 of this Agreement shall be increased by 5% of the increase in Consumer Price Index-All Urban Consumers for the area of San Francisco/Oakland/San Jose, CA, whichever is greater.. 4.2. Occupancy Upon Expiration or Termination. Except to the extent that Company has the right to continue to use and/or maintain the System, Company shall discontinue use of the System immediately upon expiration or termination of this Agreement and within one hundred and twenty (120) days after expiration or termination of this Agreement, Company shall either completely remove the System or, with City approval, abandon the System in place. Notwithstanding the foregoing, the Public Works Director may require a shorter period due to exigent circumstances and may authorize a longer period if it is in the public interest. If Company fails to remove the facilities within the prescribed time period and the City has not approved abandonment in place, the City may remove the facilities at the expense of Company, and Company shall promptly reimburse the City for any and all expenses, including but not limited to administrative, legal and consultant costs, within thirty (30) days after receiving an invoice from the City. Any removal or relocation work by Company shall only be done pursuant to an encroachment permit. Notwithstanding the expiration or termination of this Agreement, to the extent Company's facilities lawfully remain in the public rights-of-way, Company shall comply with reasonable time, place and manner regulations or any other lawful regulations imposed by the City that are authorized by Public Utilities Code Section 7901.1 or other applicable stat~ or federal laws. . 4.3 Termination. City may terminate this Agreement by giving sixty (60) days written notice of termination upon the occurrence of any of the following: a. Failure of Company to make any payment required by this Agreement, where such failure continues for a period of sixty (60) days after written notice by City; or b. Violation of any provision of this Agreement or any encroachment permit issued hereunder, where such viola~ion is not cured within sixty(60) days after written notice by City or, where such violation cannot reasonably be cured within sixty (60) days, Company fails to promptly begin such cure and thereafter bring it to completion within the time required by the City. . c. An order entered by a court of competent jurisdiction approving a petition in bankruptcy or ordering the dissolution, winding up or liquidation of Company 11373/000l/MFN ROW AGREEMENT.DOC 5 . or appointing a custodian, receiver, trustee, or other officer to administer a substantial part of Company's property. d. The revocation, expiration or other loss of applicable permits required by City, state or federal law for the use, maintenance or operation of the System. Company may request a hearing before the City Council during the sixty (60) day notice of termination period in the event that Company believes there are insufficient grounds for the termination. Upon the conclusion of such hearing, the City Council shall decide whether this Agreement shall be terminated. The decision of the City CounCil shall be final. ARTICLE 5 REMOV AL AND RELOCATION . 5.1. Removal Due to Public Project. Upon receipt ofa written demand from the City, Company, at its sole cost and expense, shall remove and relocate any System facilities installed, used and/or maintained by Company under this Agreement when such removal or relocation is made necessary due to any work proposed to be done by or on behalf of the City or other governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and installation, construction, maintenance or operation of any underground or aboveground facilities such as sewers, drains, pipes, power lines, and tracks. Company shall complete the removal or relocation within one hundred ,'and twenty (120) days of receipt of notice from the City or according to an agreed upon schedule with the City of no less than one hundred and twenty (120) days. Notwithstanding the foregoing, the City's Director of Public Works may require a shorter period due to exigent circumstances and may authorize a longer period if it will not delay the public project. If Company fails to remove or relocate the facilities within the prescribed time period, City may remove the facilities at the expense of Company, and Company shall promptly reimburse the City any and all expenses, including administrative, legal and consultant costs, within thirty (30) days after receiving an invoice from the City. Any removal or relocation work by Company shall only be done pursuant to a special street restoration permit. 5.2. Undergrounding. Upon the receipt of a written demand from City, Company shall replace any or all of its aerial facilities with underground facilities in accordance with all applicable laws. . 5.3. Abandonment. In the event the System, or any part thereof, is abandoned for a period of six (6) months or more, Company shall promptly vacate and remove the System or the abandoned part thereof at Company's sole expense. Alternatively, the City may allow Company, in its sole discretion, to abandon the System, or any part thereof, in place and convey it to the City. If Company fails to remove the System as required by the City pursuant to this Section and Chapter _ of the Code within one hundred and twenty (120) days after receipt of written notice from the City, the City may, in its sole discretion, (a) 11373/0001/MFN ROW AGREEMENT.DOC 6 remove the System at Company's sole expense, which expenses Company shall promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses, . including all administrative, legal and consultant costs or (b) deem the System, or any part . thereof, to have been abandoned and conveyed to the City. Notwithstanding the foregoing, if this Agreement expires or is terminated, this section shall not apply to the extent it is preempted by California Public Utilities Code Section 7901 or otherwise prohibited by other applicable law. In the event of such preemption, Company shall comply with reasonable time, place and manner regulations or any other lawful regulations imposed by the City that are authorized by Public Utilities Code Section 7901.1 or other applicable state or federal laws. 5.4. Repair of Rights-of-Way. Whenever the removal or relocation of facilities is required under this Agreement, Company shall promptly repair and return the public rights-of-way and adjacent property to a safe and satisfactory c.ondition to the City in accordance with the City's street restoration standards adopted by resolution ofthe City Council. If Company fails to do so, the City shall have the option to perform such work at Company's sole expense, which expenses Company shall promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses, including all administrative, legal and consultant costs. ARTICLE 6 TAXES . 6.1. Company agrees that it will be solely responsible for the payment of any and all lawful taxes, fees and assessments relating to its use and maintenance of the System including but not limited to all taxes, fees and assessments listed in Company's Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission. Pursuant to Section 107.6 of the California Revenue and Taxation Code, the City hereby advises, and Company recognizes and understands, that Company's use of the public rights-of-way may create a possessory interest subject to property taxation and that Company will be subject to the payment of property taxes levied on such interest. Company will co-operate with the Marin County Assessor in providing any information necessary for the Assessor to make a property tax determination. " . 1 1373/0001/MFN ROW AGREEMENT.DOC 7 . . . ARTICLE 7 INDEMNIFICATION 7.1. Company shall indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, including but not limited to attorney's and expert fees and court costs, arising out of or connected with the performance of this Agreement, the installation and maintenance of the System, or the use of any public right-of-way by Company or Company's employees, officers, officials, agents, transferees, contractors or subcontractors. The obligation to indemnify the City under this section shall not apply to any liabilities, losses, claims, actions, causes of action or demands arising from City's own negligence, willful misconduct or criminal acts. ARTICLE 8 INSURANCE 8.1. Minimum Insurance Requirements. Company shalt obtain and maintain at its sole cost for the duration of this Agreement the following insurance: a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office form number GL0002 (Ed. 1/73) covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. b. Minimum Limits of Insurance. Company shall maintain policy limits of no less than: 1. General Liability: $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 11373/0001/MFN ROW AGREEMENT.DOC 8 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. . 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code and Employers' Liability limits of $1 ,000,000 per accident. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or Company shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. (a) The City, its officers, officials, employees, agents and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of Company; products and completed operations of Company; premises owned, occupied or used by Company; or automobiles owned, leased, hired or borrowed by Company. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. . (b) Company's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of Company's insurance and shall not contribute with it. (c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. (d) Company's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers' Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by Company for the City. . 11373/0001/MFN ROW AGREEMENT.DOC 9 . 3. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. e, Acceptabilitv of Insurers Insurance shall be placed with insurers with a Best's rating of no less than A:VII. f. Verification of Covera2e. Company shall furnish the City with certificates of insurance and with original endorsements effecting coverage required by this Article. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete certified copies of all required insurance policies, at any time. g. Indemnification Not Limited . Any insurance required to be obtained and maintained by Company under this Agreement shall not limit in any way Company's indemnification obligations under Article 7 of this Agreement. 8.2 In the event Company hires any subcontractors, independent contractors or agents ("Secondary Parties") to install or maintain the System, Company shall require the Secondary Parties to obtain and maintain the insurance required by Section 8.1 of this Agreement and comply with all of the insurance provisions of such section. The failure of a Secondary Party to comply with this Section 8.2 shall be considered a material breach of this Agreement by Company. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Uses Subordinate. This Agreement is not a grant by the City of any property interest. This Agreement shall not create a vested right of any nature in Company to use the public rights-of-way. This Agreement is subject and subordinate to the prior and continuing right of the City and its assigns, licensees, and permitees to use any and all of the public rights-of-way for any lawful use. It is further subject to all deeds, easements, dedications, conditions, covenants, restrictions; encumbrances and claims of title which may affect the public rights-of-way. . Company shall be solely responsible for obtaining all . necessary permits and approvals from all public and private entities. 9.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be . 1 1373/0001/MFN ROWAGREEMENT.DOC 10 !., in writing and transmitted through first class United States mail, or by private delivery systems, to the following address or such other address of which a party may give written notice: . City: Company: Metromedia Fiber Network Services, Inc. 360 Hamilton Avenue White Plains NY 10601 Attn: 'General Counsel '\ With a copy to: Metromedia Fiber Network Services, Inc. 20936 Cabot Boulevard Hayward, CA 94545 Attn: Director, Network Operations . 9.3 Assignment. Company shall not assign its obligations under this Agreement without the express written consent of the City. A sale or transfer of stock, assets, or other equitable interests of Company, or any parent, 'subsidiary, or other affiliate of Company, which effects a material change in Company's ownership or control, as determined by the City, shall be deemed to be a transfer for purposes of this section. As used in this section, "control" means possession of the power to direct or cause the direction of the management or policies of Company. Any transfer shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty days (30) after any such transfer or assignment. The consent of the City Council to a transfer may not be unreasonably denied. Any proposed transferee must show that it has the ability to perform all obligations and requirements of this Agreement as determined by the City Council and must agree in writing to comply with all provisions of this Agreement. No consent by the City shall be required for a transfer in trust, mortgage or other hypothecation, in whole or in part, to secure any indebtedness. Any attempted assignment without the approval of the Gity shall be null and void and constitute a material breach of this Agreement. Notwithstanding the above, Company may in the ordinary course of its business and without the prior written notice or consent ofthe City: (i) Lease its facilities, or any portion thereof, to another person, (ii) grant an indefeasible right of user interest in its facilities or any portion thereof, to another person, or (iii) offer or provide capacity or bandwidth from its facilities to another person, provided that Company at all times retains exclusive control over its . 11373/0001/MFN ROW AGREEMENT.DOC 11 ." facilities and remains responsible for locating, servicing, repairing, maintaining, relocating, or removing it~ facilities pursuant to the provisions of this Agreement. 9.4 Attorneys Fees. If legal action is brought by either party because of a breach of this Agreement or to enforce a provision of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and court cost. 9.5 Settlement and Compromise. Company agrees it will not commence any legal action challenging any provisions of this Agreement, including but not limited to the payments required to be made by this Agreement. The City agrees to not demand or require any additiomil compensation for the use of its right-of-way related to the System, other than the compensation required by Article 3 hereof, during the term of this Agreement and any extension thereof. 9.6 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. 9.7 Amendments. This Agreement may not be amended except pursuant to a written instrument signed by all parties. . 9.8 Severability. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be'deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement. 9.9 Construction of Agreement. This Agreement shall be governed and construed by and in accordance with the laws of the State of California. In the event that suit is brought by a party to this Agreement, the parties agree that trial of such action shall he vested exclusively in the state courts of California, County of Marin, or in the United States District Court, Northern District of California, in the City and County of San Francisco. 9.10 Successors. This Agreement is binding upon the successors, assigns and transferees of the parties hereto. 9.11 Order of Precedence. To the extent the provisions ofthis Agreerpent and any permit required to _be obtained by Company from City are in conflict, the provisions of the permit shall take precedence, except that the City shall not require the payment of any additional compensation for the use of the City's right-of-way other than the compensation required to be paid by Article 3 of this Agreement and any permit or inspection fees. . IN WITNESS WHEREOF, the parties have executed_this Agreement on the 9ates set forth below. Metromedia FiberNetwork Services, Inc., ) 11373/0001/MFN ROW AGREEMENT. DOC 12 ---.., .., a Delaware Corporation By: (. " Its: Date: ~ City of a Municipal Corporation By: Mayor Attest: City Clerk . . 11373/0001lMFN ROW AGREEMENT.DOC 13