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HomeMy WebLinkAboutTC Ord 1987 - 1988 ORDINANCE NO. 334 N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADOPTING REGULATIONS PERTAINING TO CONSTRUCTION IN FLOOD ZONES TO COMPLY WITH FEMA REQUIREMENTS An Ordinance of the Town of Tiburon amending Title IV, Chapter 13, Article I, section 13-1.1 of the Tiburon Municipal Code Regulating Construction In Flood Zones. SECTION 1.0 Section 1. Amendment. Title IV, Chapter 13, Article I, section 13-1.1 of the Tiburon Municipal Code is hereby amended to read as follows: STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND METHODS 1.1. STATUTORY AUTHORIZATION. The Legislature of the State of California has in Government Code Sections 65302, 65560, and 65800 conferred upon local government units authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the Town Council of the Town of Tiburon does ordain as follows: 1.2 FINDINGS OF FACT A. The flood hazard areas of the Town of Tiburon are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare. B. These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated or otherwise protected from flood damage also contribute to the flood loss. 1.3 STATEMENT OF PURPOSE. It is the purpose of this ordinance to promote the public health, safety, and general welfare, and to minimize public and private losses to flood conditions in specific areas by provisions designed: A. To protect human life and health; B. To mlnlmlze expenditure of public money for costly flood control projects C. To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; D. To minimize prolonged business interruptions; E. To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, trees, and bridges located in areas of special flood hazard; F. To help maintain a stable tax base by providing for the second use and development of areas of special flood hazard so as to minimize future flood blight areas; G. To insure that potential buyers are notified that property is in an area of special flood hazard; and H. To insure that those who occupy the areas of special flood hazard assume reponsibility for their actions. 1.4 METHODS OF REDUCING FLOOD LOSSES. In order to accomplish its purposes, this ordinance includes methods and provisions for: A. Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities; B. Requiring that uses vulnerable to floods, including facilites which serve such uses, be protected against flood damage at the time of initial construction: C. Controlling the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel flood waters; D. Controlling filling, grading, dredging, and other development which may increase flood damage; and, E. Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards in other areas. SECTION 2.0 DEFINITIONS Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 2 they have in common usage and to give this ordinance its most reasonable application. "Appeal" means a request for a review of the Floodplain Administrator's interpretation of any provision of this ordinance or a request for a variance. "Area of special flood hazard" - see "Special flood hazard area." "Base flood" means the flood having a one percent chance of being equalled or exceeded in any given year (also called the "100-year flood) . "Basement" means any area of the building having its floor subgrade (below ground level) on all sides. "Breakaway walls" are any type of walls, whether solid or lattice, and whether constructed of concrete, masonry, wood, metal, plastic or any other suitable building material which is not part of the structural support of the building and which is designed to break away under abnormally high tides or wave action without causing any damage to the structural integrity of the building on which they are used or any buildings to which they might be carried by flood waters. A breakaway wall shall have a safe design loading resistance of not less than ten and no more than twenty pounds per square foot. Use of breakaway walls must be certified by a registered engineer or architect and shall meet the following conditions: 1. Breakaway wall collapse shall result from a water load less than that which would occur during the base flood; and 2. The elevated portion of the building shall not incur any structural damage due to the effects of wind and water loads acting simultaneously in the event of the base flood. "Development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. "Flood or flooding" means a general and temporary condition of partial or co~plete inundation of normally dry land areas from (1) the overflow of flood waters, (2) the unusual and rapid accumulation or runoff of surface waters from any source, and/or (3) the collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in this definition. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 3 "Flood Boundary and Floodway Map" means the official map on which the Federal Emergency Management Agency of Federal Insurance Administration has delineated both the areas of flood hazard and the floodway. "Flood Insurance Rate Map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazard and the floodway. "Flood Insurance Study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the FIRM, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood. "Floodplain or flood-prone area" means any land area susceptible to being inundated by water from any source (see definition of "flooding"). "Floodplain management" means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations. "Floodplain management regulations" means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. "Fuctionally dependent use" means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilites. "Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. "Lowest floor" means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 4 considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this ordinance. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers and other similar vehicles placed on a site for greater than 180 consecutive days. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for sale or rent. "Mean sea level" means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD of 1929 or other datum to which base flood elevations shown on a community's flood Insurance Rate Map are referenced. "New construction" means, for floodplain management purposes, structures for which the "start of construction" commenced on or after the effective date of a floodplain management regulation adopted by this community. "One hundred year flood" or "100-year flood" means a flood which has a one percent annual probability of being equalled or exceeded. It is identical to the "base flood," which will be the term used throughout this ordinance. "Person" means an individual or his agent, firm, partnership, association or corporation, or agent of the aforementioned groups, or this state or its agencies or political subdivisions. "Remedy a violation" means to bring the structure or other development into compliance with State or local floodplain management regulations, or, if this is not possible, to reduce the impacts of its non-compliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the environment provisions of the ordinance or otherwise deterring future similar violations, or reducing federal financial exposure with regard to the structure or other development. "Riverline" means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. "Special flood hazard area (SFHA)" means an area having special flood or flood-related erosion hazards, and shown on an FHBM or FIRM as Zone A, Al-30, AE, A99. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 5 "Start of construction" includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footing, the installation of piles, the constuction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation such as clearing, grading and filling; nor does it include the installation of streets and/or walkways, nor does it include excavation for a basement, footings, piers, or foundations of the erection of temporary forms; not does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. "Structure" means a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home. "Substantial improvement" means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: (1) before the improvement or repair is started; or (2) if the structure has been damaged, and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: (1) any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or (2) any alteration of a structure listed on the National Register of Historical Places or a state Inventory of Historic Places. "Variance" means a grant of relief from the requirements of this ordincance which permits construction in a manner that would otherwise be ,.prohibi ted by this ordinance. "Violation" means the failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this ordinance is presumed to be in violation until such time as that documentation is provided. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 6 SECTION 3 GENERAL PROVISIONS 3.1 LANDS TO WHICH THIS ORDINANCE APPLIES. This ordinance shall apply to all areas of special flood hazards within the jurisdiction of the Town of Tiburon. 3.2 BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD. The areas of special flood hazard identified by the Federal Emergency Management Agency or the Federal Insurance Adminstration in a scientific and engineering report entitled "Flood Insurance Study for the Town of Tiburon" dated November 1976, with an accompanying Flood Insurance Rate Map, is hereby adopted by reference and declared to be a part of this ordinance. This Flood Insurance Study is on file at Tiburon Town Hall, 1155 Tiburon Blvd., Tiburon. This Flood Insurance Study is the minimum area of applicability of this ordinance and may be supplemented by studies for other areas which allow implementation of this ordinance and which are recommended to the Town Council by Floodplain Administrator. 3.3 COMPLIANCE. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this ordinance and other applicable regulations. Violations of the provisions of this ordinance by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Nothing herein shall prevent the Town Council from taking such lawful action as is necessary to prevent or remedy any violation. 3.4 ABROGATION AND GREATER RESTRICTIONS. This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 3.5 INTERPRETATION. In the interpretation and application of this ordinance, all provisions shall be: A. Considered as minimum requirements; B. Liberally construed in favor of the governing body; and C. Deemed neither to limit or repeal any other powers granted under state statutes. 3.6 WARNING AND DISCLAIMER OF LIABILITY. The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 7 rare occasions. Flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the Town of Tiburon, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made thereunder. 3.7 SEVERABILITY. This ordinance and the various parts thereof are hereby declared to be severable. Should any section of this ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. SECTION 4 ADMINISTRATION 4.1 ESTABLISHMENT OF DEVELOPMENT PERMIT. A development Permit shall be obtained before construction or development begins within any area of special flood hazards established in Section 3.2. Application for Development Permit shall be made on forms furnished by the Floodplain Administrator and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimensions, and elevation of materials, drainage facilities; and the location of the foregoing. Specifically, the following information is required: A. Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures. B. Proposed elevation in relation to mean sea level to which any structure will be floodproofed; C. All appropriate certifications listed in Section 4.3 D of this ordinance; and D. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. 4.2 DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR. The Town Engineer is hereby appointed to administer and implement this ordinance by granting or denying development permits in accordance with its provisions. 4.3 DUTIES AND RESPONSIBILITES OF THE FLOODPLAIN ADMINISTRATOR. The duties and responsibilites of the floodplain administrator shall include but not be limited to: A. Permit review TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 8 1. Review all development permits to determine that the permit requirements of this ordinance have been satisfied. 2. All other required state and federal permits have been obtained; 3. The site is reasonably safe from flooding. B. Use of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 3.2, the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a Federal, State or other source, in order to administer Section 5.0. Any such information shall be submitted to the Town Council for adoption. C. Whenever a watercourse is to be altered or relocated: 1. Notify adjacent communities and the California Department of Water Resourses prior to such alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration; 2. Require that the flood carrying capacity of the altered or relocated portion of said watercourse is maintained. D. Obtain and maintain for public inspections and make available as needed: 1. the certification required in Section 5.1.C.1 (floor elevations); 2. the certification required in Section 5.1.C.2.c (elevation or floodproofing of nonresidential structures); 3. the certification required in Section 5.1.C.3.a. or 5.1.C.3.b (wet floodproofing standard); 4. the certified elevation required in Section 5.3.B (subdivision standards); E. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Section 6.0. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 9 F. Take action to remedy violations of this ordinance as specified in Section 3.3. herein. SECTION 5 5.1 STANDARDS OF CONSTRUCTION. In all areas of special flood hazards the following standards are required: A. Anchoring 1. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hyrostatic loads including the effects of buoyancy. 2. All manufactured homes shall meet the anchoring standards of Section 5.4 B. Construction Materials and Methods. 1. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. 2. All new construction and substantial improvements shall be construction using methods and practices that minimize flood damage. 3. All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. C. Elevation and Floodproofing 1. New construction and substantial improvement of any structure shall have the lowest floor, including basement, elevated to or above the base flood elevation. Nonresidential structures may meet the standards in Section 5.1.C.2. Upon the completion of the structure the elevation of the lowest floor including basement shall be certified by a registered professional engineer or surveyor, or verified by the community building inspector to be properly elevated. Such certification or verification shall be provided to the Floodplain Administrator. 2. Nonresidential construction shall either be elevated in conformance with Section 5.1.C.1 or TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 10 together with attendant utility and sanitary facilities: a. be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water; b. have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; c. be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certifications shall be provided to the Floodplain Administrator. 3. Require, for all new construction and substantial improvements, that fully enclosed areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria; a. Either a minimum of two openings having a total new area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwaters; or b. Be certified to comply with a local floodproofing standard approved by the Federal Insurance Administration. 4. Manufactured homes shall also meet the standards in Section 5.4. 5.2 STANDARDS FOR UTILITES A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the system and discharge from systems into flood waters. B. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 11 5.3 STANDARDS FOR SUBDIVISIONS. A. All preliminary subdivision proposals shall identify the flood hazard area and the elevation of the base flood. B. All final subdivision plans will provide the elevation of proposed structure(s) and pads. If the site is filled above the base flood, the final pad elevation shall be certified by a registered professional engineer or surveyor and provided to the Floodplain Administrator. C. All subdivision proposals shall be consistent with the need to minimize flood damage. D. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and construction to minimize flood damage. E. All subdivisions shall provide adequate drainage to reduce exposure to flood hazards. 5.4 STANDARDS FOR MANUFACTURED HOMES. All new and replacement manufactured homes and additions to manufactured homes shall: A. Be elevated so that the lowest flood is at or above the base flood elevation; and B. Be securely anchored to a permanent foundation system to resist flotation, collapse or lateral movement. SECTION 6. VARIANCE PRbcEDURE 6.1 APPEAL BOARD A. The Town Council of the Town of Tiburon shall hear and decide appeals and requests for variances from the requirements of this ordinance. B. The Town Council shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination of this ordinance. C. In passing upon such applications, the Town Council shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and: 1. the danger that materials may be swept onto other lands to the injury of others; TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 12 2. the danger of life and property due to flooding or erosion damage; 3. the susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; 4. the importance of the services provided by the proposed facility to the community; 5. the necessity to the facility of a waterfront location, where applicable; 6. the availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; 7. the compatibility of the proposed use with existing and anticipated development; 8. the relationship of the proposed use to the comprehensive plan and floodplain management program for that area; 9. the safety of access to the property in time of flood for ordinary and emergency vechicles; 10. the expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and 11. the costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilites such as sewer, gas, electrical, and water system, and streets and bridges. D. Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items 6.1.C.1 through 6.1.C 11 have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. E. Upon condsideration of the factors of Section 6.1.C and the purposes of this ordinance, the Town Council may attach sush conditions to the granting of variances as it deems necessary to further the purposes of this ordinance. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 13 F. The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request. 6.2 CONDITIONS FOR VARIANCES A. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed in the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section. B. Variances shall only be issued upon a determination that the variance is the minimum necessay, considering the flood hazard, to afford relief. C. Variances shall be issued upon: 1. a showing of good and sufficient cause; 2. a determination that failure to grant the variance would result in exceptional hardship to the applicant; and 3. a determination that the granting of a variance will not result in increased flood heights, additional threats to the public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of, the public, or conflict with existing local laws or ordinances. D. Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that the provisions of Sections 6.2.A through 6.2.C are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. E. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the regulatory flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. A copy of the notice shall be recorded by the Floodplain Board in the office of the Marin County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land. TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 14 SECTION 7 SEPARABILITY If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this ordincance, any section, subsection, sentence, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION 8 EFFECTIVE DATE This ordinance shall be and is hereby declared to be in full force and effect as of thirty (30) days from and after the date of its passage and shall be published once before the expiration of fifteen (15) days after its passage, with the names of the Councilmembers voting for and against the same, in a newspaper of general circulation published in the Town of Tiburon. PASSED AND ADOPTED at the regular meeting of the Town Council of the Town of Tiburon on July 20, 1988, by the following vote: AYES: COUNCILMEMBERS: Coxhead, Logan, Mayberry, Duke NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Shaw ",""'<'::~' -_/" ----x/ ...~ "'::~~ ".\:' ATT~~ R. L. KLEINERT, TOWN MANAGER/CLERK TIBURON FLOOD DAMAGE PREVENTION ORDINANCE PAGE 15 ORDINANCE NO. 333 N.S. AN ORDINANCE OF THE TOWN OF TIBURON LEVYING A SPECIAL TAX FOR THE PROPERTY TAX YEAR 1988-89 COMMUNITY FACILITIES DISTRICT NO. 1985-1 (POINT TIBURON DEVELOPMENT) TOWN OF TIBURON, MARIN COUNTY, CALIFORNIA The Town Council of the Town of Tiburon ordains: 1. Pursuant to Government Code Sections 53328 and 53340, a special tax is hereby levied on the property within Community Facilities District No. 1985-1 for the 1988-89 tax year as shown on Exhibit A attached hereto and by this reference incorporated herein. 2. The appropriate officers and agents of the Town are directed to provide all necessary information to the Marin County Auditor and Tax Collector in order to effect the proper billing and collection of the within special tax in the 1988-89 tax year. 3. The appropriate officers and agents of the Town, with the written approval of the Town Manager, are authorized to amend Exhibit A, between the time of the adoption of this ordinance and the final posting of the special taxes to the county tax rolls, as may be necessary to achieve a correct match of special tax levies with the assessor's parcel numbers finally utilized by the County in sending out property tax bills. This authority is limited to correcting or preventing clerical errors. 4. If for any cause any portion of this ordinance is found to be invalid, or if the special tax is found inapplicable to any particular parcel, by a court of competent jurisdiction, the balance of this ordinance, and the application of the special tax to the remaining parcels, shall not be affected. 5. This ordinance shall take effect and be in force thirty (30) days after its date of passage; and before the expiration of fifteen (15) days after its passage the same shall be published, with the names of the members voting for and against the same, at least once in a newspaper of general circulation published in the Town of Tiburon. * * * PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on July 20, 1988, by the following vote: AYES: COUNCILMEMBERS: Logan, Coxhead, Mayberry, Duke NOES: COUNCILMEMBERS: None Shaw / ~(L.--~u .' AL ""-LAWRENCE D. )IDKE, MAYOR ~/ ATTEST:~~ ROBERT'L. KLEINERT, TOWN AGER/CLERK ABSENT: COUNCILMEMBERS: 2 EXHIBIT A SPECIAL TAXES LEVIED BY THE TOWN COUNCIL OF THE TOWN OF TIBURON FOR COMMUNITY FACILITIES DISTRICT NO. 1985-1 (POINT TIBURON DEVELOPMENT) FOR FISCAL YEAR 1988-1989 Assessor's Parcel Number Special Tax MARSH: 58-440-01 58-440-02 58-440-03 58-440-04 58-440-05 58-440-06 58-440-07 58-440-08 58-440-09 58-440-10 58-440-11 58-440-12 58-440-13 58-440-14 58-440-15 58-440-16 58-440-17 58-440-18 58-440-19 58-440-20 58-440-21 58-440-22 58-440-23 58-440-24 58-440-25 58-440-26 58-440-27 58-440-28 58-440-29 58-440-30 58-440-31 58-440-32 58-440-33 58-440-34 $1,600.00 $1,600.00 -- 0 -- [BMR] -- 0 -- [BMR] $1,600.00 -- 0 -- [BMR] -- 0 -- [BMR] $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 -- 0 -- [BMR] -- 0 -- [BMR] $1,600.00 -- 0 -- [BMR] -- 0 -- [BMR] $1,600.00 -- 0 -- [BMR] -- 0 -- [BMR] $1,600.00 -- 0 -- [BMR] -- 0 -- [BMR] $1,600.00 $1,600.00 $1,600.00 o [BMR] o [BMR] o [BMR] o [BMR] o [BMR] o [ BMR] o [ BMR] o [ BMR] 3 LAGOON: 59-390-01 59-390-02 59-390-03 59-390-04 59-390-05 59-390-06 59-390-07 59-390-08 59-390-09 59-390-10 59-390-11 59-390-12 59-390-13 59-390-14 59-390-15 59-390-16 59-390-17 59-390-18 59-390-19 59-390-20 59-390-21 59-390-22 59-390-23 59-390-24 59-390-25 59-390-26 59-390-27 59-390-28 59-390-29 59-390-30 59-390-31 59-390-32 59-390-33 59-390-34 59-390-35 59-390-36 59-390-37 59-390-38 59-390-39 59-390-40 59-390-41 59-390-42 59-390-43 59-390-44 59-390-45 59-390-46 59-390-47 59-390-48 59-390-49 59-390-50 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 4 BAYSIDE: 59-390-51 59-390-52 59-390-53 59-390-54 59-380-01 59-380-02 59-380-03 59-380-04 59-380-05 59-380-06 59-380-07 59-380-08 59-380-09 59-380-10 59-380-11 59-380-12 59-380-13 59-380-14 59-380-15 59-380-16 59-380-17 59-380-18 59-380-19 59-380-20 59-380-21 59-380-22 59-380-23 59-380-24 59-380-25 59-380-26 59-380-27 59-380-28 59-380-29 59-380-30 59-380-31 59-380-32 59-380-33 59-380-34 59-380-35 59-380-36 59-380-37 59-380-38 59-380-39 59-380-40 59-380-41 59-380-42 59-380-43 59-380-44 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 5 PLAZA: 59-380-45 59-380-46 59-380-47 59-380-48 59-380-49 59-380-50 59-380-51 59-380-52 59-380-53 59-380-54 59-380-55 59-380-56 59-380-57 59-380-58 59-380-59 59-380-60 59-380-61 59-380-62 59-380-63 59-380-64 59-380-65 59-380-66 59-380-67 59-161-07 59-161-08 59-161-09 59-161-10 TOTAL $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $1,600.00 $34,304.76 [Bldg.13] $20,149.27 [90% of Bldg.14] $ 2,238.81 [10% of Bldg.14] -- 0 -- [parking lot] $272,692.84 6 Recording Requested by and When Recorded Return to: TOWN OF TIBURON 1155 Tiburon Blvd. Tiburon, CA 94920 ORDINANCE NO. 332 N.S. AN ORDINANCE OF THE TOWN OF TIBURON REGULATING BINGO GAMES BE IT ORDAINED by the Town Council of the Town of Tiburon as follows: Section 1. Definition of binao. As used in this ordinance, "bingo" means a game of chance in which prizes are awarded on the basis of designated numbers or symbols on a card which conforms to numbers or symbols selected at random. Section 2. Nonprofit charitable oraanizations permitted to conduct binao. No individual, corporation, partnership or other legal entity shall be permitted to conduct a bingo game in the Town of Tiburon except organizations exempted from the payment of the Bank and Corporation Tax by Sections 23701a, 23701b, 23701d, 23701e, 23701f, 23701g, and 23701 1 of the Revenue and Taxation Code. Section 3. License reauired. No individual, corporation, partnership or entity shall conduct a bingo game without first license from the Town manager or his designees. other legal obtaining a Section 4. Application for license. Eligible organizations desiring to obtain such license to conduct bingo games in the Town shall file an application in writing therefor in the office of the Town manager on a form to be provided by the Town manager. The issuing authority shall be the Town manager and/or his designee. The license issued shall be either for a period of three days or less, or for a calendar year, that is a period of twelve consecutive calendar months beginning on the first day of January and ending on the thirty- first day of December. The license shall be effective on the same date of issuance subject to renewal and an annual fee. -1- Section 5. Applicant must be aualified. No license shall be issued to any organization unless such applicant is an eligible organization under section 2 above and its application conforms to the requirement, terms and conditions of this ordinance. Section 6. Contents of application. said application for a license shall contain the following: (1) The name of the applicant organization and a statement that applicant is an eligible organization under section 2; (2) The business address of the applicant organization; (3) The name and signature of at least two officers, including the presiding officer of the corporation or organiza- tion; ( 4 ) The address of the property wi thin the Town owned or leased by the applicant, or donated for the use of the organiza- tion, and used by such applicant for an office or for performance of the purposes for which the applicant is organized, on which property bingo games will be conducted, together with the occupancy capacity of such place; (5) Proposed days of week and hours of day for conduct of bingo games; (6) That the applicant agrees to conduct bingo games in strict accordance with the provisions of section 326.5 of the Penal Code and this ordinance, as they may be amended from time to time, and agrees that the license to conduct bingo games may be revoked by the Town Manager and/or his designee upon violation of any of such provisions. (7) Express purposes for which such premises are used by the organization; (8) Statement of consent for Town manager or his designee to inspect any bank accounts containing profits derived from bingo games; (9) Name of each individual, corporation, partnership or other legal entity which has a financial interest in the conduct of the bingo games; (10) Name of the person responsible for the operation of the bingo games; (11) Statement whether the total value of prizes awarded for any separate game will on any occasion exceed five dollars in cash or kind, or both; -2- (12) Said application shall be signed by the applicant under penalty of perjury; (13) Copy of certificate or letter from the Franchise Tax Board evidencing exempt status under sections 23701a, 23701b, 23701d, 23701e, 23701f, 23701g or 23701 1 of the Revenue and taxation Code, if so exempt. Section 7. License fees. Fees for licenses issued pursuant to this ordinance shall be established by resolution of the Town Council. If an application for a license is denied, one-half of any license fee paid shall be refunded to the organization. Section 8. License terms. General bingo licenses are granted for one-year terms; each term is renewable annually. written application for renewal of a general license shall be made to the Town manager at least one month prior to its expiration date. A special license is granted only for a term not to exceed three days; said special license shall not be renewable. Section 9. Investiaation of applicant. Upon receipt of the completed application and the fee, the Town manager shall refer the same to interested departments of the Town, the Town manager, Town attorney, police department, building department and the fire department, for investigation as to whether or not all the statements in the application are true and whether or not the property of the applicant qualifies and the extent to which it qualifies, as property on which bingo games may lawfully be conducted, as to fire, occupancy, and other applicable restrictions. Section 10. Access to criminal history information. The chief of police shall have the authority to obtain criminal history information for each person operating or assisting in the operation of a bingo game for purposes of determining those who have been convicted within the past five years of crimes involving lotteries, gambling, larceny, perjury, bribery, extortion, fraud or similar crimes involving moral turpitude, and to present such information at any bingo permit hearing. Section 11. Contents of license. Upon being satisfied that the applicant is fully qualified, under the law, to conduct bingo games in the Town, the Town manager and/or his designee shall issues a license to said applicant, which shall contain the following information: -3- (1) The name and nature of the organization to whom the license is issued; (2) The address where bingo games are authorized to be conducted; ( 3 ) The occupancy capacity of the room in which bingo games are to be conducted; (4) The date of the expiration of such license; (5) Such other information as may be necessary or desirable for the enforcement of the provisions of this ordinance. section 12. Denial of license - Conditional ap~roval. (1) The Town manager, or his designee, may refuse to issue a license if it is determined that the operation of a bingo game would be injurious to the health, safety and morals of the people of the Town; that the apparent mode of operation of the bingo game would not be in compliance with state or federal law, or with this code; that the apparent mode of operation of the bingo game would constitute fire, safety, health or sanitary hazard, or would not be in compliance with building or zoning regulations, requirements and ordinances; that any person operating or assisting in the operation of a bingo game has been convicted within the past five years of a crime involving, but not limited to, lotteries, gambling, larceny, perjury, bribery, extortion, fraud or similar crimes involving moral turpitude; that there has been a willful misstatement of fact in an application or report filed hereunder, or a negligent failure to file any report required hereunder; or that there has been any other violation of any provision of this ordinance. (2) If the license is approved, the Town manager, or his designee, may include restrictions and conditions in the license deemed reasonable and necessary under the circumstances to ensure compliance with the purposes and intent of this ordinance. Section 13. Summary suspension of license pendina opportunity for hearina Misdemeanor to continue after suspension - Revocation. (1) Whenever the Town manager and/or his designee deter- mines that the licensee is conducting a bingo game in violation of any of the provisions of this ordinance, the Town manager and/or his designee shall have the authority to summarily suspend the license and order the licensee to immediately cease and desist any further operation of any bingo game. (2) Any person who continues to conduct a bingo game after any summary suspension thereof under subsection (1) shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine not exceeding five hundred dollars -4- or by imprisonment in the county jail for a period not exceeding six months, or by both such fine and imprisonment. (3) The order issued under subsection (I) shall also notify the licensee that it shall have five days from the date of such order to request a hearing to determine whether such license shall be revoked. Failure to request, in writing, such hearing before the Town manager and/or his designee within said five-day period, shall result in a revocation of the license. (4) Upon such request by the licensee, whose license has been suspended under subsection (1), for a hearing to determine whether such license shall be revoked, the Town manager and/or his designee shall provide a hearing within ten days after receipt of the request, at which hearing the suspended licensee may appear before the town manager and/or his designee for the purpose of presenting evidence why the license should not be revoked. No license shall be revoked under this section unless notice of the time and place of such hearing shall have first been given at least five days before the hearing thereof by depositing in the United states mail a notice directed to said suspended licensee at the address given in the application. The notice shall set forth the specific facts advanced as the basis of the suspension and proposed revocation. (5) Any organization whose license is revoked under this section shall not conduct any bingo game in the Town until such time as the Town Council, on appeal, determines to overrule the decision of the Town manager. Section 14. Revocation of license - Alternative procedure. Whenever it appears to the Town manager and/or his designee that the licensee is conducting bingo games in violation of any of the provisions of this ordinance, or that the license was obtained by fraudulent representation and no summary suspension is ordered under section 13, the license may be revoked; provided, however, the licensee may appear before the Town manager and/or his designee at the time fixed by the Town manager and/or his designee, for the purpose of presenting evidence why the license should not be revoked. No license shall be revoked under this section unless written notice shall have first been given at least five days before the hearing thereof by depositing in the United states mail a notice directed to said licensee at the address given in the application. The notice shall set forth a summary of the grounds advanced as the basis of the revocation. Section 15. Appeal of revocation to Town Council. (1) Any holder of a license whose license is revoked under this ordinance shall have the right, within ten days after receiving notice in writing of the revocation, to file a written appeal to the Town Council. Such appeal shall set forth the specific ground or grounds on which it is based. The Town -5- Council shall hold a hearing on the appeal within thirty days after its receipt by the Town, or at a time thereafter agreed upon, and shall cause the appellant to be given at least ten days' notice of such hearing. At the hearing the appellant or its authorized representative shall have the right to present evidence and a written or oral argument, or both, in support of his appeal. The determination of the Town Council on the appeal shall be final. (2) Any organization whose license is finally revoked may not again apply for a license to conduct bingo games in the Town for a period of one year from the date of such revocation; provided, however, if the ground for revocation is cancellation of the exemption granted under Section 23701 of the Revenue and Taxation Code, such organization may again apply for a license upon proof of reinstatement of said exemption. Section 16. Maximum amount of prize. The total value of prizes awarded during the conduct of any bingo game shall not exceed two hundred fifty dollars in cash or kind, or both, for each separate game which is held. Section 17. Separate funds - Prizes and expenses. with respect to organizations exempt from payment of the Bank and Corporation Tax by Section 23701d of the Revenue and Taxation Code, all profits derived from a bingo game shall be kept in a special fund or account and shall not be commingled with any other fund or account. Such profits shall be used only for charitable purposes. with respect to other organizations authorized to conduct bingo games pursuant to this ordinance, all proceeds derived from a bingo game shall be in a special fund or account and shall not be commingled with any other fund or account. Such proceeds shall be used only for charitable purposes, except as follows: (1) Such proceeds may be used for prizes; (2) A portion of such proceeds, not to exceed ten percent of proceeds after the deduction for prizes, or five hundred dollars per month, whichever is less, may be used for rental of property, overhead, and administrative expenses. Section 18. Records reauired. Each organization conducting a bingo game shall maintain detailed records of all profits, expenditures, prizes and other expenses associated with the operation of bingo games. Said records shall be retained for such period of time as required by state and federal law and for a period of three years for purposes of this ordinance. -6- Section 19. Filina of report. within thirty days following expiration of the period of the license, each licensee shall file a report made under penalty of perjury with the Town manager containing the following information: (1) Any changes in or additions to the information required in the application; (2) The total amount of money received from the operation of the bingo games in the previously licensed period; (3) The total amount paid out in prizes during the previously licensed period; (4) Detailed costs to the organization for the operation of the bingo games during the previously licensed period; (5) period. Disposition of profits during the previously licensed Section 20. Financial interest in licensee onlY. No individual corporation, partnership, or other legal entity except the licensee shall hold a financial interest in the conduct of such bingo game. Section 21. Exclusive operation bv licensee. A bingo game shall be operated and staffed only by members of the licensee organization. Only the licensee shall operate such game, or participate in the promotion, supervision, or any other phase of such game. Section 22. No license transferable chanaed location. Amended license for No license issued pursuant to this ordinance is trans- ferable; provided, that where a license is issued authorizing a bingo game at a particular place, such licensee may, upon application therefor and paying a fee of five dollars, have the license amended to authorize the playing of bingo at some other location within the Town to which the licensee organization has moved. Section 23. Binao aames open to public. All bingo games shall be open to the pUblic, not just to the members of the licensee organization. -7- Section 24. Attendance limited to occupancy capacity. Notwithstanding that bingo games are open to the public, attendance at any bingo game shall be limited to the occupancy capacity of the room in which such game is conducted as deter- mined by the fire department and building department of the Town in accordance with applicable laws and regulations. Licensee shall not reserve seats or space for any person. Section 25. Minors not to participate. No person under the age of eighteen years of age shall be allowed to participate in any bingo game. Section 26. Places of operation. Bingo games shall be conducted only in the Town's downtown Commercial area, currently zoned PD. Section 27. Hours of operation. Bingo games may be conducted between the hours of ten a.m. and midnight of each day; provided, that no licensee shall conduct bingo games in excess of six hours out of any twenty- four-hour period. Section 28. Dav of operation. No licensee shall conduct any bingo game more than three times per calendar week, and no more than three consecutive days in any two-week period. Section 29. Participant must be present. No person shall be allowed to participate in a bingo game unless the person is physically present at the time and place in which the bingo game is conducted. Section 30. Receipt of profit or waae prohibited. No person shall receive or pay a profit, wage, or salary from any bingo game authorized herein. Section 31. Violations and penalties. (1) A violation of Section 30 shall be punishable by a fine not to exceed ten thousand dollars, which fine shall be deposited in the general fund of the Town. (2) Any person who violates any other section of this ordinance shall be guilty of a misdemeanor. -8- Section 32. Town may enioin violation. The Town may bring an action in a court of competent jurisdiction to enjoin a violation of section 326.5 of the Penal Code or of this ordinance. section 33. Separability. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconsti- tutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this ordinance, any section, subsection, sentence, clause or phrase hereof, irrespec- tive of the fact that anyone or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. Section 34. Effective Date. This ordinance shall be and is hereby declared to be in full force and effect as of thirty (30) days from and after the date of its passage and shall be published once before the expiration of fifteen (15) days after its passage, with the names of the Councilmembers voting for and against the same, in a newspaper of general circulation published in the Town of Tiburon. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on May 4, 1988, by the following vote: AYES: COUNCILMEMBERS: Coxhead, Logan, Mayberry and Shaw NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Mayor Duke 4~%s~ F~CIS X. SHAW, VICE-MAYOR Town of Tiburon ATTEST: MANAGER/CLERK Final draft: May 5, 1988 -9- ORDINANCE NO. 331 N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING A DEVELOPMENT AGREEMENT FOR TIBURON HIGHLANDS BE IT ORDAINED by the Town Council of the Town of Tiburon as follows: Section 1. Findings. The Town Council finds as follows: A. California Government Code Sections 65864-65869.5 authorizes cities to enter into binding development agreements as therein provided. B. R. C. Holdings, Inc., a California corporation ("Owner") has requested that the Town of Tiburon (the "Town") enter into a Development Agreement with respect to the real property (the "Property") commonly known as Tiburon Highlands which is located off the extensions of upper and lower Cecilia Way and Warrens Way in the Town of Tiburon and more particularly described in Exhibit "A" to the Development Agreement, and proceedings have been taken in accordance with the Town's rules and regulations for the consideration of development agreements. C. Owner has the requisite legal interest in the Property to enable the Town to enter into the Development Agreement with Owner. D. The Planning Commission of the Town has reviewed the proposed Development Agreement and has held public hearings on the same. E. The Town Council has held public hearings on the proposed Development Agreement, and notice of intention to consider adoption of the Development Agreement has been given as required by law. F. The Town Council finds that the Development Agreement is consistent with the General Plan of the Town which is currently in effect and with the approved Master Plan for the Property. There is no specific plan applicable to the Property. G. The Town Council further finds that each and every of the facts and statements set forth in the Recitals of the Development Agreement attached hereto as Exhibit "A" are true and correct, and said facts and statements are hereby incorporated in this Ordinance by this reference as fully and completely as if the same had been set forth at length herein. Section 2. Approval. NOW, THEREFORE, the Town Council approves the Development Agreement for Tiburon Highlands, a copy of which is attached hereto as Exhibit "A" hereto, and the Mayor is authorized to execute and enter into said Development Agreement on behalf of the Town. Section 3. Separability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anyone or more other sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. 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 its passage the same shall be published, with the names of the members voting for and against the same, at least once in a newspaper of general circulation, published in the Town of Tiburon. PASSED AND ADOPTED at an adjourned meeting of the Town Council of the Town of Tiburon on March 31, 1988 by the following vote: AYES: COUNCILMEMBERS: Duke, Wilson, Shaw, Coxhead NOES: COUNCILMEMBERS: Mayberry ABSENT: COUNCILMEMBERS: /J~ Y. &fL/2 STONE D. COXHEAD, MAYOR Town of Tiburon ATTEST: -2- RECORDING REQUESTED BY AND: WHEN RECORDED, RETURN TO: Town of Tiburon Tiburon Town Hall 1155 Tiburon Blvd. Tiburon, California 94920 Attention: Mr. Jack Lohman DEVELOPMENT AGREEMENT (Tiburon Highlands) This Agreement is entered into on by and between R. C. Holdings, Inc., a California corporation, and the Town of Tiburon, a municipal corporation organized and existing under the laws of the State of California, as of the ..3/ day of IlJI7R.eH , 1988. . RECITALS A. These Recitals refer to and utilizacertain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The State Development Agreement Law authorizes Town to enter into development agreements in connection with the develop- ment of real property within its jurisdiction by persons with a requisite legal or equitable interest in the real property which is the subject of a development agreement. The State Development Agreement Law also authorizes cities and/or counties to enact, by resolution or ordinance, procedures or requirements for the con- sideration of development agreements, to meet the goals of the State Development Agreement Law, to conserve resources, reduce development costs to the consumer and encourage investment in and a commitment to comprehensive planning to maximize the efficient utilization of resources at the least economic cost to the gen- eral public. C. Town has enacted its Development Agreement Resolution establishing the procedures and requirements for the considera- tion of this Agreement thereunder pursuant to the State Develop- ment Agreement Law. Exhibit "A" D. The Existing Approvals implement the goals and policies of the Current General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the Town and to impose appropriate stan- dards and requirements with respect to land uses, building heights and densities, traffic improvements, support facilities (such as utilities and other amenities) as development of the Project proceeds, and measures for mitigating adverse environ- mental impacts in the Town and the surrounding region. The Town believes that the orderly development of the Project will provide many public benefits to Town through the imposition of the fore- going standards and requirements under the terms and conditions of this Agreement, including, without limitation, increased tax revenues resulting in fiscal benefits to Town, installation of on- and off-site public improvements, construction of beneficial urban in-fill between already developed properties and helping to meet residential needs within the Town and the region. E. Owner and Town desire to provide the parameters within which the obligations of Owner for public and other improvements will be met, and otherwise to provide the final and definitive criteria for the development of the Project in order to obtain the foregoing benefits. Owner and Town further desire to settle certain litigation brought by Owner to challenge various actions of the Town (including the Town's denial of certain prior land use applications pertaining to the Property and various develop- ment moratoria enacted by the Town), a portion of., the considera- tion for such settlement being the mutual execution of this Agreement. F. Town has determined that the Project is a development for which a development agreement is appropriate in order to achieve the goals and objectives of the Town's land use planning policies and to provide appropriate assurances to Owner regarding its ability to complete the Project. This will in turn eliminate uncertainty in planning for and secure orderly development of the Project, assure progressive installation of necessary improve- ments and provision for public services appropriate to each stage of development of the Project, insure attainment of the maximum effective utilization of resources within the Town at the least economic cost to its citizens, and otherwise achieve the goals and purposes for which the Development Agreement Resolution was enacted by" Town. In exchange for these benef i ts to the Town, Owner desires to receive the assurance that it may proceed with the Project in accordance with the Existing Ordinances, subject to the terms and conditions contained in this Agreement, in order to implement the intent of the Town in enacting the Development Agreement Resolution. G. In order to effectuate the foregoing, the parties de- sire to enter into this Agreement. Owner is the owner of the - 2 - Property and therefore satisfies the requirements of Government Code Section 65865 and is entitled to file the application for and enter into this Agreement. H. The Planning Commission has conducted duly noticed pub- lic hearings pursuant to on the Development Agreement Resolution. I. Thereafter the Town Council held duly noticed public hearings on this Agreement pursuant to the requirements of the Development Agreement Resolution, found this Agreement consistent with the objectives, policies, general plan uses and programs specified in the Current General Plan; is compatible with the uses authorized in and the regulations prescribed for the land use district in which the Property is located; is in conformity with and will promote public convenience, general welfare and good land use practices; will not be detrimental to the health, safety and general welfare of the Town or the region surrounding the Town; will not adversely affect the orderly development of property or the preservation of property values within the Town and will promote the same; and will promote and encourage the development of the Project by providing a greater degree of requisite certainty with respect thereto; and introduced the Enacting Ordinance in order to enact this Agreement as its legislative act. Thereafter, the Town Council adopted the Enacting Ordinance enacting this Agreement as its legislative act. J. Concurrently with the adoption of Enacting Ordinance the Town adopted its Ordinance No. 330 N.S. approving the Master Plan (as hereafter defined) for the Property. The findings of said Ordinance No. 330 N.S. are incorporated in this Development Agreement as recitals by this reference. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions. 1.1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 Approvals. All amendments to any Ordinances heretofore or hereafter enacted, necessary or appropriate to con- fer the requisite lawful right on Owner to develop the Project, and any and all permits or approvals of any kind or character required under the Ordinances in order to develop the Project. 1.3 Development Agreement Resolution. Town's Reso- - 3 - lution No. 2517 establishing the procedures and requirements for the consideration of this Development Agreement thereunder pursuant to the State Development Agreement Law. 1.4 Enacting Ordinance. Ordinance No. 331 N.S., en- acted by the Town Council on March 31, 1988, approving this Agreement. 1.5 Exactions. All exactions, in lieu fees or pay- ments, dedication or reservation requirements, obligations for on- or off-site improvements or construction requirements for public improvement facilities, or services called for in connec- tion with the development of or construction on property under the Ordinances, whether such exactions constitute subdivision im- provements, mitigation measures in connection with environmental review of any project, or impositions made under other Ordinances or in order to make a project approval consistent with Town's General Plan. 1.6 Existing Approvals. Those Approvals for the Project obtained or enacted by Town as of the date hereof. The following specific approvals by Owner constitute the Existing Approvals: (a) Master Plan Approval. Approval on March 31, 1988, of a master plan for the Project (the "Master Plan") as more particularly set forth in Town Ordinance No. 330 N.S. 1.7 Existing Ordinances. The Ordinances in effect as of the date of this Agreement. 1.8 Laws. The laws of the State of California, the Constitution of the United States and any codes, statutes or ex- ecutive mandates in any court decision, state or federal, there- under. 1.9 Lots. The separate lots or parcels of real property designated upon the Site Plan and in the Master Plan as being lots upon which a residence may be constructed. 1.10 Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of Town, governing the permitted uses of land, governing density, and governing design, improvement and construction standards and specifications applic- able to the development of the Property. Specifically, but with- out limiting the generality of the foregoing, ordinances shall include the Town's General Plan, the Town's Zoning Ordinance, the Town's Subdivision Ordinance, and the Town's Building and Fire Codes. - 4 - 1.11 Parcels. All of the separate lots or parcels of real property designated upon the Site Plan and in the Master Plan other than the Lots. 1.12 Preapproved Assignees. The individuals or entities referred to in Section 9.1 to whom the rights of Owner under this Development Agreement may be assigned without the consent of the Town. 1.13 Person. Any person, partnership, corporation, municipal corporation, governmental board, body, agency or rep- resentative, or other form of organization or entity. 1.14 Project. The residential development and as- sociated amenities, and on- and off-site improvements, contem- plated by or embodied within the Existing Approvals as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1.15 Property. The real property described in Ex- hibit "A" hereto on which Owner intends to develop the Project. 1.16 Site Plan. The diagramatic site plan for the Property attached hereto as Exhibit "B". 1.17 State Development Agreement Law. Government Code Sections 65864-65869.5, authorizing Town to enter into de- velopment agreements as therein set forth. 2. Effective Date; Term. 2.1 Effective Date. This Agreement shall be dated as of the date the Enacting Ordinance was approved by the Town Council as specified in the Recitals above and the obligations of the parties hereunder shall be effective upon execution by both parties hereto. After the Enacting Ordinance takes effect pursu- ant to Government Code Section 36937, and not later than ten (10) days thereafter, the Town, by and through its Town Council, and Owner shall execute and acknowledge this Agreement, and there- after, the Town Clerk shall cause this Agreement to be recorded in the Official Records of the County of Marin, State of California. The cost of recording this Agreement shall be borne by Owner. 'To the extent this Agreement modifies any Existing Approval, then such modification shall constitute an Approval pursuant to the Existing Ordinances as if separately enacted thereunder. 2.2 Term of this Agreement. The Term of this Agree- ment shall commence on the effective date of the Enacting Ordin- ance and shall terminate seven (7) years thereafter, unless sooner terminated or extended as hereinafter provided. - 5 - 2.3 Term of Other Approvals. The Existing Approvals and any and all Approvals granted by the Town after the date hereof shall remain valid for the term of this Agreement. 2.4 Subsequent Amendments or Termination. If the parties amend or cancel this Agreement as herein provided, or as otherwise provided by the State Development Agreement Law or the Development Agreement Resolution, or this Agreement is terminated pursuant to any provision hereof, then the Town Clerk shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the Official Records of the County of Marin. The cost of recordation shall be borne by the party causing such action. 3. General Development of Project. 3.1 Project. Owner shall have the right to develop the Project on the Property in accordance with the terms and con- ditions of this Agreement, and Town shall have the right to con- trol development of the Property in accordance with the provi- sions of this Agreement. Except as otherwise specified in this Agreement, the Existing Approvals and the Existing Ordinances shall control the overall design, development and construction of the Project, and all on- and off-site improvements and appurten- ances in connection therewith, in the manner specified in this Agreement, including, without limitation, all mitigation measures required in order to minimize or eliminate material adverse en- vironmental impacts. In the event of any inconsistency between the Existing Approvals and this Agreement, the provisions of this Agreement shall control. 3.2 Project Phasing. The parties acknowledge that Owner cannot at this time predict whether the Project will be developed in phases, and, if it is so developed in phases, when or the order in which such phases will be developed. Such deci- sions with respect to phasing of the Project will depend upon a number of circumstances not within the control of the Owner, in- cluding, without limitation, market orientation and demand for the Project, the condition of capital markets and availability of appropriate financing for the development of the Project (such as construction or interim and permanent loans, and/or equity capi- tal) and other similar factors. Owner shall therefore have the right, at its sole and exclusive option, to either develop the Project at one time or in phases in such order and at such times as Owner deems appropriate within the exercise of its subjective business analysis of those factors determining, in Owner's judg- ment, the appropriate course of development of the Project, so long as the Project is consistent with the Existing Approvals and the provisions of this Agreement. If Owner elects to develop the Project in phases, all Project on- and off-site improvements, other than any improvements on the Lots required in connection - 6 - with the construction of the residential structure to be situated thereon (such as building pads, utility and sewer laterals, drainage improvements) imposed upon the Project either by reason of the Existing Approvals, this Agreement or the approval of the Subdivision Map shall be made and completely installed in connec- tion with the first phase of the Project. Any other provision of this Agreement notwithstanding, the Town shall not have the right to require Owner to develop the Project in phases. 3.3 Subdivision of Property. Owner shall have the right to subdivide, and the Town shall have the obligation to ap- prove the subdivision of, the Property in a manner consistent with the Site Plan attached hereto as Exhibit "B". Owner shall initiate such subdivision through an application for a vesting tentative map (or, if Owner, in its sole and unfettered discre- tion, so elects, a tentative map) (the "Subdivision Map") which the Town shall process under and in accordance with the Existing Ordinances. The boundary lines of the Lots and Parcels, the lo- cation of the streets, the Project open space and the areas to be dedicated to the Town shall be as shown on the Site Plan. Owner shall have the right, but may not be required, to merge one or more of the Lots in order to create larger lots. 3.4 Precise Plan Approval. Owner shall have the right to obtain precise plan approval, and the Town shall be ob- ligated to grant precise plan approval, for the Property, pro- vided that such precise plan is consistent wit.h, and otherwise conforms to, the standards, terms and conditions contained in this Agreement. Owner shall initiate such precise plan through an application which the Town shall process under and in accord- ance with the Existing Ordinances. The number of Lots, the loca- tion of streets within the Property, the Project open space and the areas to be dedicated to the Town which shall be incorporated into the precise plan approval shall be as shown on the Site Plan. The following criteria shall be incorporated into the pre- cise plan and shall be adhered to by Town in connection with the design review process for the individual Lots: (a) The Town may not require that the living area (i.e. excluding garages and decks) of the residence constructed on Lots 3 through 11, inclusive, be less than 2,500 square feet unless the Owner of the Lot applies for or consents to approval of a smaller residence; (b) The Town may not require that the living area (i.e. excluding garages and decks) of the residence constructed on Lots 1, 2 and 12 through 43, inclusive, (excluding the Lot designated on the Site Plan as Lot 30, which has been denied approval) be less than 3,000 square feet, unless the Owner of the Lot - 7 - applies for or consents to approval of a smaller residence; (c) The living area (i.e. excluding garages and decks) of the residence constructed on Lots 3 through 11, inclusive, shall not be greater than 3,500 square feet; (d) The lot coverage of the residence constructed on any Lot shall not exceed twenty-five percent (25%) of the Lot if the Lot has an area of more than 17,400 square feet or thirty percent (30%) of the Lot if the Lot has an area of 17,400 square feet or less; (e) The front yard setback for all Lots shall be a minimum of twenty (20) feet; (f) The side yard setback for all Lots shall be a m1n1mum of ten (10) feet, provided, however, that no two residences may be closer together than twenty-five (25) feet at their adjoining side yards; (g) The rear yard setbacks for all Lots (measured from the edge of the ridge or the property line [whichever creates a greater setback] in the case of Lots 3 through 9, inclusive, and Lot 11, from the edge of the ridge in the case of Lot 29, and from the property line in the case of all other Lots) shall be a minimum of thirty (30) feet, provided, however, that on Lots 20, 24 and 25 the residences on those Lots can be as close as twenty-five (25) feet from the residences on the Lots having a common boundary line with such Lots, and provided further that the building envelope for Lot 28 shall be designed to minimize the impact on oak trees on the Lot and to preserve the two (2) oak trees located on the Lot which are considered to be over one hundred years old). It is the intention of this Master Plan approval to allow the construction of one story houses on Lots 3 through 9 and Lot 11 within thirty (30) feet from the edge of the ridge and on Lot 10 within thirty feet of the rear property line; and, (h) The residences to be constructed on the Lots shall not have a height of greater than thirty (30) feet, provided, however, that (i) any residence to be constructed on Lots 3 through 10, inclusive, shall be one story (i.e. eighteen [18] feet) wherever the residence is closer than forty (40) feet from the crest of the hill on such Lot or, in the case of Lot 10, wherever the residence is closer than forty (40) feet - 8 - from the rear property line of Lot 10, (ii) the resi- dence to be constructed on Lot 11 shall be one story (i.e. eighteen [18] feet), although consideration may be given to a two story house if the rear yard set back (measured from the edge of the ridge) in increased by Owner to such a degree that the residence does not un- duly interfere with the privacy of the house below, and (iii) the residence to be constructed on Lot 29 shall not have a height greater than eighteen (18) feet. The parties acknowledge that the precise plan contemplated hereunder is an appropriate means to accomplish the purposes herein specified. 3.5 Design Review Approval. In order to implement the development provisions herein specified, Owner shall follow the applicable design review procedures in effect under the Ex- isting Ordinances. Town's review of Owner's applications shall be made based on the standards and criteria specified in this Agreement and the Exhibits hereto, the applicable policies em- bodied in the Town's Current General Plan, and the Existing Ordinances. 3.6 Building Permits and Other Approvals. Upon ap- proval of the Subdivision Map pursuant to Section 3.3 above, ap- proval of the Project precise plan pursuant to Section 3.4 above, and completion of the design review process with respect to any given Lot or the entire Project pursuant to Section 3.5 above, Owner shall have the right to apply for any necessary Approvals under the Building and Fire Codes in effect as Existing Ordin- ances, pursuant to which applications are judged solely on the basis of structural and fire safety, as ministerial decisions of the Town. Town shall issue to Owner, upon such applications, all necessary building permits, occupancy certificates, or other re- quired permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including con- nection to all utility systems under the Town's jurisdiction, subject to compliance with this Agreement and Town's Building and Fire Code requirements under the Existing Ordinances. 3.7 Other Governmental Permits. In addition, Owner shall apply for such other permits and approvals as may be re- quired from other governmental or quasi-governmental agencies having jurisdiction over the Project (such as public utilities or utility districts) for the development of, or provision of serv- ices to, the Project under the Existing Approvals. 3.8 Fees. Owner shall be obligated to pay the fol- lowing fees to the Town: - 9 - (a) The sum of Five Hundred Thousand Dollars ($500,000.00) shall be paid to the Town at the time specified in the "Conditional Stipulated Settlement" (as defined in Section 12.4 below); (b) The sum of Five Thousand Five Hundred Dollars ($5,500.00) shall be paid to the Town with respect to each Lot (i) within ten (10) days after Owner or a Preapproved Assignee trans- fers a Lot (other than in connection with the transfer of all of the Lots, then owned by Owner or the Preapproved Assignees to a single pur- chaser) to a party other than a Preapproved Assig- nee, or (ii) the date upon which Owner obtains a building permit for construction of a residential structure on a Lot if such Lot has not theretofore been transferred by Owner or a Preapproved Assig- nee, and provided, however, that in the event the Town is paid less than Seventy-Seven Thousand Dollars ($77,000.00) (i.e. $5,500 multiplied by the total number of Lots divided by 3) in any of the three (3) consecutive one year periods which commence upon the date on which the Town has ap- proved both the Subdivision Map and the precise plan for the Project, Owner shall, within forty- five (45) days after the expiration of any such one-year period, pay to the Town the. difference between the sum of $77,000.00 and the total amount paid during such one-year period; in no event, however, shall Owner's be obligated to pay to the Town pursuant to this subsection (b) more than Two Hundred Thirty-One Thousand Dollars ($231,000.00) (i.e. $5,500 multiplied by the total number of Lots); (c) The sum of Five Thousand Five Hun- dred Dollars ($5,500.00) per Lot, to be paid at the time a building permit is obtained for con- struction of a residential structure on the Lot (such sum to be in full and complete payment of all building permit, plan check, inspection or other similar building fees), plus any sums charged by the Town Engineer in connection with the review and approval of grading and drainage plans for the Property, or any portion thereof; (d) The cost of the Town's actual staff time incurred in connection with the processing and approval of Owner's applications for the tentative map, final map and precise plan appli- cations, provided, however, that such cost shall - 10 - not be less than One Thousand Dollars ($1,000.00) nor more than One Thousand Five Hundred Dollars ($1,500.00), plus any sums charged by the Town Engineer in connection with the review and approv- al of such applications; (e) Design review application and pro- cessing fees in accordance with the Town's fee schedule which was in effect on July 1, 1986, such sums to be paid at the time design review applica- tions are submitted by Owner; and, (f) Forty Thousand Dollars ($40,000.00) on account of Tiburon Boulevard Improvement Fees, which said payment shall fully and completely sat- isfy Owner's obligation to make improvements to Tiburon Boulevard or to the Tiburon Boulevard/ Cecilia Way intersection by virtue of the condi- tions of the Master Plan Approval or the Subdivi- sion Map Approval. The foregoing sums shall be in full and complete payment and sat- isfaction of all application fees, other charges or Exactions which would otherwise be payable by Owner in connection with: (a) The filing or processing of the Sub- division Map application or the precise plan application: (b) The review, approval or recordation of the final Subdivision Map: (c) The design review process: (d) The application for or issuance of building permits and other Town of Tiburon approvals and/or permits (including but not limited to plan check fees, inspection fees and building permit fees): Fee: (e) The Tiburon Boulevard Improvement (f) The obligation to build low or mod- erate income housing or to pay in-lieu fees with re- spect thereto; and, (g) Any and all Exactions (including but not limited to street improvement fees, in lieu park fees and traffic mitigation fees or charges). - 11 - The Town shall not impose any further Exactions in connection with the Project other than those specified in this Section. The parties acknowledge that the provisions contained in this Section 3.8 are intended to implement the intent of the parties that Owner have the right to develop the Project pursuant to specified and known criteria and rules, and that the Town receive the bene- fits which will be conferred as a result of such development without interdicting the right of Town to act in accordance with its powers, duties and obligations. 3.9 General Standard of Town Review. The parties acknowledge that Owner must obtain additional Approvals before commencing construction of the Project, some of which are discre- tionary in nature. In connection with any Approval which the Town is permitted or has the right to make under this Agreement, or otherwise under its Ordinances, Town shall exercise its dis- cretion or take action in a manner which complies and is consist- ent with the standards, terms and conditions contained in this Agreement, and in a manner which will not materially interfere with the development of the Project on the Property, for the uses and to the height, density and intensity specified in this Agree- ment or the exhibits hereto, or with the rate of development se- lected by Owner. 3.10 Effect of Growth Management Ordinances or Moratoria. This Development Agreement and the rights of Owner to complete construction of the Project pursuant hereto shall not be affected by any current or subsequent ordinance, resolution, policy, plan or rule the effect of which is either to limit the number, size or amount of residential or other buildings or other improvements which can be constructed during a particular period or periods of time or to prohibit the construction of such build- ings or improvements for a period or periods of time. It is fur- ther agreed between the parties that no such current or subse- quent ordinance, resolution, policy, plan or rule shall prohibit or delay the Town in the issuance of such further Approvals as may be required to permit the construction of the Project as con- templated in this Agreement at the pace selected by Owner. It is the intention of the parties that this Agreement shall permit Owner to proceed with the orderly construction of the Project without delay upon the issuance of all Approvals necessary to permit such construction, it being agreed that the magnitude of the public..and private improvements to be constructed for the benefit of the community is such that those improvements could not be constructed without assurance that the development of the Project can be completed. 3.11 Protection Against Endangerments. Nothing herein shall be construed to limit the authority of the Town to adopt and apply Ordinances for the purpose and which have the effect of protecting persons or property from dangerous or haz- - 12 - ardous conditions which (i) create a substantial physical risk to persons or property, and (ii) are not unique to the Property but instead exist throughout other portions of the Town of Tiburon as well, provided that such Ordinances expire or are repealed by the Town when the dangerous or hazardous condition has ended. The provisions of this Section 3.11 shall not apply to traffic or traffic safety conditions now or hereafter existing in or about the Town of Tiburon, and is not intended to be used for the pur- pose of general welfare or to limit intensity of development or use of the Property but is instead intended to protect and recog- nize the authority of the Town to deal with endangerments, if any, not adequately addressed at the time of the execution of this Agreement. The term of this Agreement shall be extended pursuant to Section 7.1 below for the duration of the period during which any such Ordinance precludes compliance with the provisions of this Agreement. 3.12 Review and Processing of Approvals. Town shall accept for processing and expeditious review and action all ap- plications for further Approvals with respect to the Project called for or required under this Agreement, including but not limited to the Subdivision Map application discussed in Section 3.3, the precise plan application discussed in Section 3.4 and the design review applications discussed in Section 3.5. The Town shall take final action upon Owner's Subdivision Map appli- cation and precise plan application by the later to occur of (i) one hundred twenty (120) days after the Town determines that the Subdivision Map application is complete (which determination the Town covenants and agrees to make expeditiously after Owner's submittal of the same to the Town) or (ii) within ninety (90) days after the Town determines that the precise plan application is complete (which determination the Town covenants and agrees to make expeditiously after Owner's submittal of the same to the Town). The Town shall schedule the Subdivision Map and precise plan applications for review by the appropriate representatives of Town having jurisdiction in order to achieve the time limita- tions herein set forth. Upon request from Owner, Town shall promptly inform Owner of all necessary information and submission requirements in connection with each application hereunder, and shall review any such application prior to its submission for completeness. Each such application shall be processed under and in accordance with the Existing Ordinances, and if such applica- tion is consistent with, and otherwise conforms to, the stand- ards, terms and conditions contained in this Agreement and the Existing Ordinances, then Town shall approve such application. To facilitate the prompt processing of its applications, Town shall, at the expense of Owner, retain an outside independent planner to be chosen by the Town (with Owner's consent) to process and advise the Town with respect to Owner's applications. - 13 - 4. Specific Criteria Applicable to Development of Project. 4.1 Applicable Ordinances and Approvals. The Ord- inances which shall govern the development of the Property here- under and all subsequent Approvals with respect thereto, in- cluding the permitted uses of the Property and the density, de- sign, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Ordinances. Owner shall not be subject to any increases in Town imposed fees and charges enacted after the date of this Agreement with respect to subsequent applications for development and con- struction within the Property. Nothing herein, however, shall prevent Town, in subsequent actions applicable to the Property, from applying new Ordinances, not inconsistent or in conflict with the Existing Ordinances or the intent, purposes or any of the terms, standards or conditions of this Agreement, and which do not materially interfere with the development of the Property for the uses and to the height, density, and intensity set forth herein or in the exhibits hereto or with the rate of development selected by Owner hereunder, and in the event of fire or other casualty, requiring reconstruction of more than fifty percent (50%) of any building previously constructed hereunder, nothing herein shall prevent Town from applying to such reconstruction all requirements of Town's Building Code and other construction related standards and specifications then in effect. 4.2 Changes in Law. In the event that state or fed- eral laws or regulations, enacted after the effective date of the Enacting Ordinance, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agree- ment shall automatically be suspended or modified as may be necessary to comply with such state or federal laws or regulations. 4.3 Governing Approvals. Except as otherwise speci- fied in this Agreement, the permitted uses of the Property, the density, the maximum height, size, setbacks and lot coverages of proposed buildings, provisions for reservation or dedication of land for public purposes and the location of public improvements and other terms and conditions of development applicable to the Property shall be those set forth in the Existing Approvals. 4.4 Dedications. At the time of recordation of the Final Subdivision Map, Owner shall offer for dedication to the Town the streets located within the Property, the approximately three acre portion of the Property located at the west side of the Property and indicated on the Site Plan and the pedestrian path shown on the Site Plan, and the Town shall accept such offer of dedication. The dedication of the three acre parcel shall be subject to an easement for sanitary sewer purposes to be reserved by Owner, for the benefit of Owner and its successors and - 14 - assigns, in the general location shown on the Street and Utility Plan submitted by Owner as part of its master plan application; and the dedication of the pedestrian path shall be subject to an easement for pedestrian access to be reserved by Owner, for the benefit of Owner and its successors and assigns, over and across the pedestrian path and shall specify that the Homeowners Asso- ciation to be formed by Owner in connection with the Project shall be obligated, in perpetuity, to maintain the pedestrian path in good condition, appearance and repair and to maintain public liability and property damage insurance with a limit of not less than One Million Dollars ($1,000,000) per occurrence, covering the pedestrian path and naming the Town as an additional insured. The declaration of covenants, conditions and restric- tions which will be recorded with respect to the Project shall incorporate the requirements concerning maintenance of the ped- estrian path and the maintenance of insurance for the same, and shall also contain a provision by which the Homeowners Associa- tion covenants and agrees to indemnify and defend the Town and hold it harmless from any and all claims, losses, damages, ex- penses (including but not limited to its reasonable attorneys' fees) and liabilities arising out of or in connection with the Town's ownership of the easement. The dedication of the three acre parcel shall provide that the use of such parcel shall be limited to either four (4) market rate units or four (4) below and moderate income units; provided, however, that if the land is used exclusively for elderly housing the foregoing limitations on the number of units shall not apply, although the number of units in and size of the elderly housing project shall be compatible with the Bel Air neighborhood and have no greater environmental impact than the foregoing options. The Town shall not require any other dedications in connection with the Project or its ap- proval thereof. 4.5 Easements; Abandonment; Subdivision Improve- ments. Town shall not impose any Exactions pursuant to its Ord- inances in connection with required Approvals or the development, construction, use or operation of the Project, or any portion thereof, other than those specified in this Agreement. Town shall cooperate with Owner in connection with any arrangements or abandoning existing utility or other easements and facilities and the relocation thereof or creation of any new easements within the Prope~ty necessary or appropriate in connection with the development of the Project. 4.6 Assurance of Compliance. Town shall be per- mitted, in connection with the Subdivision Map Approval, to require the posting of such security as may be permitted under the California Subdivision Map Act and that portion of the Town's Existing Ordinances enacted pursuant thereto. The amount and form of such security shall be determined in accordance with the applicable standards and provisions therein contained. - 15 - 5. Indemnity; Insurance. 5.1 Indemnity. Owner shall indemnify, defend and hold Town, and its elective and appointive boards, commissions, officers, agents, and employees, harmless from any and all claims, causes of action, damages, costs or expenses (including reasonable attorneys' fees) arising out of or in connection with, or caused on account of, the process for development of the Pro- ject hereunder, any Approval with respect thereto, or claims for injury or death to Persons, or damage to property, as a result of the operations of Owner or its employees, agents, contractors or representatives with respect to the Project; provided, however, that the foregoing indemnity provision shall be void to the ex- tent it violates applicable Laws or would constitute a joint ven- ture, partnership, or other participation in the business affairs of Owner by Town. 5.2 Insurance. Before beginning any construction work on the Project, Owner shall obtain all of the insurance spe- cified in this Section 5.2 and thereafter maintain such insurance in full force and effect until the expiration of the term of this Agreement or until completion of all construction on the Project, whichever occurs first; provided, however, if Owner anticipates that there will be a cessation in construction for a period of more than thirty (30) days because the Project is being developed in phases or for any other reason, Owner may cancel such insur- ance during the period of such cessation so long as Owner noti- fies Town of such fact before the cancellation and reinstitutes such insurance coverage before any further construction work begins. (a) Public Liability and Property Damage In- surance. Owner shall maintain or cause to be maintained comprehensive public liability and property damage insur- ance, covering the risks of bodily injury and/or death, property damage, and personal injury liability, with a limit of not less than One Million Dollars ($1,000,000) per person and Two Million Five Hundred Thousand Dollars ($2,500,000) per occurrence. Each policy of insurance hereunder shall provide for blanket contractual liability coverage. Owner shall continue to maintain the insurance specified in this Section 5.2(a) for a period of three (3) years following the completion of all off-site improvements for the Project. (b) Workers' Compensation Insurance. Owner shall also provide, or cause to be provided, Workers' Com- pensation insurance as required by law, together with a contingent employer's liability endorsement in favor of Town, covering employees of Owner and employees of any contractor, subcontractor, agent or representative of Owner. - 16 - (c) General Requirements for Insurance. Each policy of insurance carried by Owner hereunder shall name the Town as an additional insured (to the such is extent permitted by the nature of the policy and the insurance com- pany providing the policy of insurance) and shall provide that it may not be cancelled without at least ten (10) days' prior written notice to Town. Prior to commencement of any construction work on the Project, Owner shall furnish to Town a certificate of each policy of insurance carried here- under, stating that such insurance is in full force and ef- fect and, in the case of the public liability insurance, showing Town named as an additional insured. Any insurance required to be maintained by Owner hereunder may be main- tained under a so-called "blanket policy", insuring other parties and other locations, so long as the amount of in- surance required to be provided hereunder is not thereby diminished. 5.3 Mutual Release. Each party, for itself and to the extent it is legally permissible for it to do so, and without affecting the coverage provided by insurance required to be main- tained by Owner hereunder, on behalf of its insurer hereby re- leases and waives any right to recover against the other party from any liability for (i) damages for injury to or death of Per- sons, (ii) any loss or damage to property, (iii) any loss or dam- age to buildings or other improvements, or (iv) claims arising by reason of any of the foregoing, to the exbe:nt. that such dam- ages and/or claims under (i) through (iv) are covered (and only to the extent of such coverage) by insurance actually carried by each party, irrespective of any negligence on the part of such party which may have contributed to such loss or damage. The provisions of this Section 5.3 are intended to restrict each party (as permitted by law) to recovery for loss or damage against insurance carriers to the extent of such coverage, and waive fully, and for the benefit of the other party, any rights and/or claims which might give rise to a right of subrogation in any such insurance carrier. 6. Periodic Review of Compliance. 6.1 Annual Review. Town and Owner shall annually review this Agreement, and all actions taken pursuant to the terms of this Agreement with respect to the Project. Such annual review shall be undertaken in accordance with the provisions of this Article 6. 6.2 Owner's Submission. Not less than thirty (30), nor more than sixty (60), days prior to the first (1st) anniver- sary date of this Agreement, and each anniversary date there- after, Owner shall submit to the Town Planning Director a letter setting forth Owner's good faith compliance with the terms and - 17 - conditions of this Agreement. Such letter shall be accompanied by such documents and other information as may be reasonably necessary and available to Owner to enable the Planning Director to undertake his annual review of Owner's good faith compliance with the terms of this Agreement, and shall also state that such letter is submitted to Town pursuant to the requirements of Sec- tion 65865.1 of the State Development Agreement Law and the De- velopment Agreement Resolution. 6.3 Finding of Compliance. The Planning Director shall review the Owner's submission to ascertain whether Owner has complied in good faith with the terms of this Agreement. Upon request of the Planning Director, Owner shall furnish such additional documents or information as may be reasonably required and available to Owner to enable the Planning Director to make and complete his review hereunder. If the Planning Director finds good faith compliance by Owner with the terms of this Agreement, he shall issue a certificate of compliance, certifying Owner's good faith compliance with the terms of this Agreement through the period of the applicable annual review. Such certif- icate of compliance shall be in recordable form and shall contain such information as may be necessary in order to impart construc- tive record notice of the finding of good faith compliance here- under. Owner shall have the right to record the certificate of compliance in the Official Records of the County of Marin. At least three (3) working days prior to making his determination hereunder, the Planning Director shall provide to Owner copies of all staff reports and other information concerning Owner's com- pliance with the terms of this Agreement and the determination proposed by the Planning Director. 6.4 Finding of Noncompliance. If the Planning Director, on the basis of substantial evidence, finds that the Owner has not complied in good faith with the terms of this Agreement, he shall specify in writing to Owner the respects in which Owner has failed to comply. The Planning Director shall also specify a reasonable time for Owner to meet the terms of compliance, which time shall be not less than thirty (30) days, and shall be reasonably related to the time necessary adequately to bring Owner's performance into good faith compliance with the terms of this Agreement. If the areas of noncompliance specified by the Planning Director are not perfected within such reasonable time limits prescribed by the Planning Director, then this Agree- ment shall be subject to modification or cancellation pursuant to this Agreement and the provisions of the Development Agreement Resolution. 6.5 Reference to Planning Commission. The Planning Director may refer any review to be conducted hereunder to the Planning Commission. Such referral shall be made by the Planning Director, together with a staff report on the preliminary - 18 - findings of the Planning Director. Upon such referral, the Planning Commission shall conduct a noticed public hearing to determine the good faith compliance by Owner with the terms of this Agreement, in accordance with the provisions of this Article 6, and Article 6 of the Development Agreement Resolution. 6.6 Appeals to Town Council. Owner may appeal any decision, determination, or action of the Planning Director or the Planning Commission made pursuant to this Article 6 to the Town Council. The Town Council shall schedule the hearing on any such appeal not earlier than thirty (30) days after Owner files its notice of appeal. At such hearing, Owner shall be entitled to submit evidence and address all the issues raised in the notice of noncompliance or on appeal. Owner's evidence may be in writing or may be taken orally at the hearing before the Town Council, or both. If, after receipt of any written response of Owner, and after considering all of the evidence at such public hearing, the Town Council finds and determines on the basis of substantial evidence that the Owner has not complied in good faith with the terms and conditions of this Agreement, then the Town Council shall specify to Owner the respects in which Owner has failed to comply, and shall also specify a reasonable time for Owner to meet the terms of compliance, which time shall be not less than thirty (30) days and shall be reasonably related to the time necessary adequately to bring Owner's performance into good faith compliance with the terms of this Agreement. If the areas of noncompliance specified by the Town Council are not perfected within such reasonable time limits herein prescribed, then the Town Council may by noticed hearing terminate, modify or take each other actions as may be specified in Article 6 of the Development Agreement Resolution. A notice of determination hereunder of noncompliance by Owner shall specify in detail the grounds therefor and all facts demonstrating such noncompliance, so that Owner may address the issues raised in the notice of non- compliance on a point-by-point basis on any appeal taken to the Town Council hereunder. 6.7 Miscellaneous Requirements in Connection with Annual Review. The determination of the Planning Director here- under shall be made within thirty (30) days after the submission by Owner of the required material hereunder, and, if the Planning Director refers the matter to the Planning Commission hereunder, then the determination by the Planning Commission shall be made within forty-five (45) days after such referral. Owner shall be permitted an opportunity to be heard orally or in writing before the Planning Director regarding such performance and before the Planning Director makes a determination or referral hereunder. The issuance of a certificate of compliance by the Planning Director (or the Planning Commission on referral) and the expira- tion of the applicable appeal period specified in the Development Agreement Resolution without appeal, or the direction of or the - 19 - confirmation by, the Town Council of the issuance of a certifi- cate of compliance on appeal, shall conclude the review for the applicable period, and such determination shall be final and con- clusive up to and including the date of the annual review here- under. All costs incurred by Town for the annual review con- ducted hereunder shall be borne by Town. 7. Permitted Delays; Supersedence by Subsequent Laws. 7.1 Permitted Delays. In addition to any specific provisions of this Agreement, performance by either party of its obligations hereunder shall be excused during any period of delay caused at any time by reason of: acts of God; civil commotion, riots, strikes, picketing, or other labor disputes; shortage of materials or supplies; damage to work in process by reason of fire, floods, earthquake, or other casualties; restrictions or moratoria imposed or mandated by, or other such acts of, govern- mental or quasi-governmental entities; enactment of conflicting Laws (including, without limitation, new or supplementary envi- ronmental regulations or other state or federal enactments); lit- igation; acts or neglect of the other party; or any other cause beyond the reasonable control of the Town or Owner. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The Term of this Agreement shall be extended by the period of any delay hereunder. 7.2 Supersedence by Subsequent Laws. If any Law made or enacted after the date of this Agreement prevents or pre- cludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement shall, to the extent feas- ible, be modified or suspended as may be necessary to comply with such new Law; provided, however, that the foregoing shall not be construed as authorizing, permitting or empowering the Town to enact any Law which would have such an effect. Immediately after enactment of any such new Law, the parties shall meet and confer in good faith to determine the feasibility of any such modifica- tion or suspension based on the effect such modification or sus- pension would have on the purposes and intent of this Agreement. The Term of this Agreement shall be extended pursuant to Section 7.1 above for the duration of the period during which such new Law precludes compliance with the provisions of this Agreement. In addition, Owner shall have the right to challenge the new Law preventing compliance with the terms of this Agreement, and, in the event such challenge is successful, this Agreement shall re- main unmodified and in full force and effect, except that the Term shall be extended by such challenge pursuant to Section 7.1 above. Town covenants and agrees that it will not either direct- ly or indirectly take, or consent to the taking of, any action, pursuant to any joint powers agreement or any other agreement with any governmental or quasi-governmental agency, body, board - 20 - or representative, the effect of which action would be to prevent or preclude the Town's compliance with any provision of this Agreement. 8. Events of Default; Remedies; Litigation Expenses. 8.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 7.1 regarding permitted delays, any failure by either party to perform any material term or provision of this Agreement shall constitute an Event of Default, (i) if such defaulting party does not cure such failure within thirty (30) days fol- lowing notice of default from the other party, where such failure is of a nature that can be cured within such thirty (30) day period, or (ii) if such failure is not of a nature which can be cured within such thirty (30) day period, the defaulting party does not within such thirty (30) day period commence substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence and con- tinuity the curing of such failure. Any notice of default given hereunder shall specify in detail the nature of the failures in performance which the noticing party claims constitutes the Event of Default and the manner in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termina- tion of this Agreement, institution of legal proceedings with respect thereto, or issuance of any building permit with respect to the Project. 8.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting party shall have the right, in addi- tion to all other rights and remedies available at law or in equity, to (i) bring any proceeding in the nature of specific performance, injunctive relief or mandamus, and/or (ii) bring any action at law or in equity as may be permitted by Laws or this Agreement in order to recover all damages necessary to compensate the nondefaulting party for all the detriment proximately caused by the defaulting party's failure to perform its agreements, ob- ligations or undertakings hereunder, or otherwise arising out of the Event of Default, or which in the ordinary course of things would be likely to result therefrom. In addition, upon the oc- currence of an Event of Default, the nondefaulting party shall have the right to terminate this Agreement, but any such termina- tion shall not affect such party's right to seek compensatory damages on account of the Event of Default for which this Agree- ment has been terminated. 8.3 Event of Default Arising Out of Annual Review. Subject to the rights and procedures of Town with respect to the - 21 - annual review conducted under Article 6 above, if either party determines that the other party is in default under this Agree- ment as a result of such annual review, then such party shall give notice and an opportunity to cure in accordance with the provisions of this Article 8. Notwithstanding anything to the contrary contained in this Agreement, if Town elects to modify or terminate this Agreement as a result of its annual review under Article 6 above after a finding thereunder of noncompliance by the Owner with this Agreement, such proceeding of termination or modification shall constitute Town's exclusive and sole remedy, and Town hereby waives, releases and relinquishes any other right or remedy otherwise available under this Agreement or at law or in equity. 8.4 Waiver; Remedies Cumulative. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the lengthy of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of an Event of Default shall be effective or binding upon such party, and no such waiver shall be implied from any omission by a party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time, other than any Event of Default and/or period of time specified in such ex- press waiver. One or more written waivers of. an Event of Default under any provision of this Agreement shall not be deemed to be a waiver of any subsequent Event of Default, and the performance of the same or any other term or provision contained in this Agree- ment. Except as provided in Section 8.3 above, all of the reme- dies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other per- mitted or available right or remedy. In connection with the foregoing provisions, each party acknowledges, warrants and rep- resents that it has been fully informed with respect to, and rep- resented by counsel of such party's choice in connection with the rights and remedies of such party hereunder, and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such party's rights and remedies otherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein speci- fied solely on the remedies provided for herein with respect to any breach of this Agreement by any other party. - 22 - 8.5 Litigation Expenses. (a) Payment to Prevailing Party. If either party brings an action or proceeding (including, without limitation, any cross-complaint, counterclaim, or third-party claim) against the other party by reason of an Event of Default, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit, including but not limited to reasonable attor- neys' fees, which shall be payable whether or not such action is prosecuted to judgment. "Prevailing party" within the meaning of this Section 8.5 shall include, without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action. (b) Scope of Fees. Attorneys' fees under this Section 8.5 shall include attorneys' fees on any appeal, and, in addition, a party entitled to at- torneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. 8.6 Effect of Termination. If this Agreement is terminated on account of an Event of Default, such termination shall not affect any right or duty emanating prior to the date of such termination from Town's entitlements or Approvals with respect to the Property, but the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of such termination. Notwithstanding the foregoing provisions, no termination of this Agreement shall prevent Owner from completing and occupying buildings or other improvements authorized pursuant to valid building permits previously approved by Town or under construction at the time of termination, but Town may take any action permitted by law to prevent, stop or correct any violation of law occurring during and after construction, and Owner or any tenant shall not occupy any portion of the Project, or any build- ing not authorized by a previously issued building permit. 8.7 Effect of Court Action. In addition, if any court action or proceeding is brought by any third Person to challenge any Approval, this Agreement, or any other permit or approval required from Town, or any other governmental entity, for development or construction of the Project, or any portion thereof, and without regard to whether or not Owner is a party to or real party in interest in such action or proceeding, then (i) Owner shall have the right to terminate this Agreement upon thirty (30) days notice in writing to Town, given at any time - 23 - during the pendency of such action or proceeding, or within ninety (90) days after the final determination therein (including any appeals), irrespective of the nature of such final determina- tion, and (ii) any such action shall constitute a permitted delay under Article 7. 8.8 Estoppel Certificate. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in writing, and if so amended, identifying the amendments, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt there- of. The Town Planning Director shall have the right to execute any certificate requested by Owner hereunder. Town acknowledges and agrees that a certificate hereunder may be relied upon by transferees and lenders. 9. Transfers and Assignments. 9.1 Right to Assign. Owner shall have the right to sell, assign or transfer this Agreement, and~ll of its rights, duties and obligations hereunder, to any Person at any time during the Term of this Agreement only with the prior consent of the Town, which consent shall not be unreasonably withheld and shall be based upon objective criteria such as the financial con- dition of the proposed transferee and the ability of the proposed transferee to perform its obligations hereunder; provided, how- ever, in no event shall the rights, duties and obligations con- ferred upon Owner pursuant to this Agreement be at any time so transferred or assigned except through a transfer of an interest of Owner in the Property, or portion thereof, transferred. Not- withstanding the provisions of the preceding sentence, Owner shall have the right to sell, transfer or assign this Development Agreement, and all of its rights, duties and obligations here- under, without the consent of the Town, to Robert E. Thompson, Gery Gomez and Peter Wilson, or any combination of them, or any corporation, partnership or other entity in which anyone or more of them has a substantial degree of ownership and/or control or, in the case of a limited partnership, in which anyone or more of them (or an entity substantially owned and/or controlled by any one or more of them) is a general partner (collectively the "Pre- approved Assignees"). 9.2 Release Upon Transfer. Upon the sale, transfer or assignment of Owner's rights and interests under this Agree- - 24 - ment under Section 9.1 above, Owner shall be released from its obligations under this Agreement with respect to the Property, or portion thereof, so transferred arising subsequent to the effec- tive date of such transfer (i) if Owner is not then in default under this Agreement, (ii) Owner has provided to Town notice of such transfer, and (iii) the transferee executes and delivers to Town a written agreement in which (A) the name and address of the transferee is set forth and (B) the transferee expressly and un- conditionally assumes all of the obligations of Owner under this Agreement with respect to the Property, or portion thereof, transferred. Owner shall, in any event, give notice to Town of any transfer hereunder, disclosing therein the identity of the transferee and such transferee's address. Failure to deliver a written assumption agreement hereunder shall not effect the run- ning of any covenants herein with the land, as provided in Sec- tion 9.3 below, nor shall such failure negate, modify or other- wise affect the liability of any transferee pursuant to the pro- visions of this Agreement. 9.3 Covenants Run With The Land. All of the provi- sions, agreement, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, con- solidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other Persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of Laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns. Each covenant to do or refrain from doing some act on the Property hereunder, or with respect to any Town owned prop- erty, (i) is for the benefit of such properties and is a burden upon such properties, (ii) runs with such properties, and (iii) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and each Person having any interest therein derived in any manner through any owner of such properties, or any portion thereof, and shall benefit each party and its property hereunder, and each other Person succeeding to an interest in such properties. 10. Amendment and Termination. 10.1 Amendment or Cancellation. Except as provided in Article 6 above with respect to Town's annual review there- under, this Agreement may be cancelled, modified or amended only by mutual consent of the parties in writing, and then only in the manner provided for in Section 65868 of the State Development Agreement Law and Article 4 of the Development Agreement Resolu- tion. Any amendment to this Agreement shall require the giving of notice pursuant to Section 65867 of the Development Agreement Legislation as specified by Section 65868 thereof, but shall not - 25 - require a public hearing before the parties may make such amendment. 10.2 Recordation of Amendment. Any amendment or can- cellation of this Agreement effected by the parties hereunder shall be recorded by the Town Clerk as specified in Section 2.4 above not later than ten (10) days after the effective date of the action effecting such amendment or cancellation, which amend- ment or cancellation shall describe the Property subject thereto. 11. Notices. 11.1 Procedure. Any notice to either party shall be in writing and given by delivering the same to such party in per- son or by sending the same by registered or certified mail, or Express Mail, return receipt requested, with postage prepaid, to the party's mailing address. The respective mailing addresses of the parties are, until changed as hereinafter provided, the fol- lowing: If to Town: Town of Tiburon Tiburon Town Hall 1155 Tiburon Blvd. Tiburon, California 94920 Attention: Jack Lohman, Planning Director With a copy to: Gary T. Ragghianti Ragghianti, Lusse & Thomas 874 Fourth Street San Rafael, California 94901 If to Owner: R.C. Holdings, Inc. Post Office Box 1643 Sausalito, California 94965 Attn: Mr. Robert C. Huff With a copy to: Vernon C. Watters 850 Montgomery Street, 2nd Floor San Francisco, California 94134 Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner - 26 - provided herein at least ten (10) days prior to the date such change is effected. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or at- tempted delivery date shown on the return receipt. 11.2 Form and Effect of Notice. Every notice (other than the giving or withholding of consent, approval or satisfac- tion under this Agreement, but including requests therefor) given to a party shall comply with the following requirements. Each such notice shall state: (i) the Article or Section of this Agreement pursuant to which the notice is given; (ii) the period of time within which the recipient of the notice must respond or if no response is required, a statement to that effect; and (iii) if applicable, that the failure to respond to the notice within the stated time period shall be deemed to be the equivalent of the recipient's approval of or consent to the subject matter of the notice. Each request for consent or approval shall contain reasonably sufficient data or documentation to enable the recipi- ent to make an informed decision. In no event shall notice be deemed given nor shall a party's approval of, consent to, or sat- isfaction with, the subject matter of a notice be deemed given by such party's failure to object or respond thereto if such notice did not fully comply with the requirements of this Section 11.2. No waiver of this Section 11.2 shall be inferred or implied from any act (including conditional approvals, if any) of a party, un- less such waiver is in writing, specifying the nature and extent of the waiver. 12. Miscellaneous. 12.1 Approvals. Unless otherwise herein provided, whenever approval, consent or satisfaction (herein collectively referred to as an "approval") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld. If a party shall disapprove, the reasons therefore shall be stated in reasonable detail in writing. Approval by a party to or of any act or request by the other party shall not be deemed to waive or render unnecessary approval to or of any similar or subsequent acts or requests. The standards, terms and conditions for Ap- provals under this Agreement shall extend to and bind the part- ners, officers, directors, shareholders, trustees, beneficiaries, agents, elective or appointive boards, commissions, employees, and other authorized representatives of each party, and each such Person shall make or enter into, or take any action in connection with, any Approval hereunder in accordance with such standards, terms and conditions. 12.2 Severability. Invalidation of any of the pro- V1Slons contained in this Agreement, or of the application there- of to any Person, by judgment or court order shall in no way af- - 27 - fect any of the other provlslons hereof or the application there- of to any other Person or circumstance and the same shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 12.3 Exhibits. The Exhibits hereto are deemed in- corporated into this Agreement in their entirety by reference thereto. 12.4 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the en- tire agreement between the parties with respect to the subject matter hereof. Except as other wise specified in this Agreement, any prior correspondence, agreements, warranties or representa- tions are superseded in total by this Agreement and the Exhibits hereto. Notwithstanding the foregoing, this Agreement shall not supersede nor have any other impact upon that certain "Condition- al Stipulated Settlement" entered into by and between the Town and Owner on or about March 31, 1988. 12.5 Construction of Agreement. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purpose of the parties here- under. The captions preceding the text of each Article, Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the con- struction and interpretation of this Agreement. Wherever re- quired by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 12.6 Further Assurances; Covenant to Sign Docu- ments. Each party covenants, on behalf of itself and its succes- sors, heirs and assigns, to take all actions and do all things, and to execute, with acknowledgment or affidavit if required, any and all documents and writings, that may be necessary or proper to achieve the purposes and objectives of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither party shall do anything which shall have the effect of harming or injuring the right of the other party to receive the benefits of this Agreement; each party shall refrain from doing anything which would render its performance under this Agreement impossible; and each party shall do everything which this Agree- ment contemplates that such party shall do in order to accomplish the objectives and purposes of this Agreement. - 28 - 12.8 Governing Law. This Agreement, and the rights and obligations of the parties, shall be governed by and inter- preted in accordance with the laws of the State of California. 12.9 Separate Counterparts. For convenience, this Agreement may be executed and acknowledged in separate counter- parts which, when attached to this Agreement, shall constitute this as one complete Agreement. 12.10 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. "Town" Town of Tiburon, a municipal corporation (ll 0:-' ~' , ' /"\ ,/" ',; By C Cfzi.'~ fJ. . ":;-f-L~ /' Its Mayor By Its Town Clerk APPROVED AS TO FORM: By Its Town Attorney R. C. Holdings, Inc., a California corporation By Its President - 29 - STATE OF CALIFORNIA COUNTY OF MARIN SSe On this day of , in the year 1988, before me, a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as of the therein named and acknowledged to me that the executed it. Notary Public My commission expires STATE OF CALIFORNIA COUNTY OF SSe On this day of , in the year 1988, before me, a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as on behalf of the corporation therein named and acknowledged to me that the corporation executed it. Notary Public My commission expires Exhibit "A" Exhibit "B" SCHEDULE OF EXHIBITS Legal Description of the Property Site Plan DESCRIPTION All that certain real property situate in the Town of Tiburon, County of Marin, State of California, described as follows: PARC~L ONE BEGINNING at a point which bears South 240 04' 52" west 5.084 feet from the Southeasterly corner of Lot 32, as shown on that certain map entit1e3, "Map of Bel Aire Estates" Marin County, California", dated March, 1953 and recorded April 8, 1953 in Book.7 of Maps at Page 82, Marin County Records: running thence along the Easterly boundary of Bel Aire Estates as shown on said map North 240 04' 52" East 7480577 feet, South 860 46' East 820.0 feet and North 30 04' East 2910149 feet: thence leaving said boundary and running Easterly along the Southerly right of way of the Northwestern Pacific Railroad Company to the most Northerly corner of Lot 77, as shown on that certain map entitled, "Map of the Reedlands, Unit 3, in the County of Marin., california", dated August, 1958 and recorded in Book 10 of Maps at Page 4, Marin County Records: running thence along the westerly boundary of The Reedlands, Unit Noo 3, as sho.~ on said map South 380 OQ' West 267062 feet: thence South 360 261 West 93.0 feet; thence South 500 30' West 112079 feet; thence south 310 33' East 144056 feet; thence South 130 47' East 190 feet; thence South 840 42' West 177 feet; thence South 710 46' West 230 feet1 thence South 360 13, West 165 feet; thence South 330 57' West 134 feet; thence South 10 49' West 75 feet; thence South 100 281 East 92 feet to the Northeasterly corner of Lot 47, as shown on that certain map entitled, "Map of The Reedlands~ Unit 2B, in the County of Marin, California", dated March, 19S7 and recorded in Book 9 of Maps at page 76, Marin County Records; running thence along the Northerly line of said Lot 47, South 700 45' West 94.19 feet; thence South 740 591 West 40.feet; thence South 150 Oib' East 82056 feet: thence along the arc of a curve to the right, tangent to the preceding course, having a central angle of 830 52' and a radius of 20 feet, a distance of 29.27 feet; thence South 680 511 West 29.60 feet: thence along the arc of a curve to the right, tangent to the preceding course.? having a central angle of 210 46' Ol" and a radius of 340 feet, a distance of 129017 feet; thence along a compound curve to the right, tangent to the preceding curve, having a central angle of 180 561 07" and a radius of 414065 feet; a distance of 136.99 feet: thence along a compound curve to the right, tangent to the preceding curve; having a central angle of 740 44' 02" and a radius of 20 feet, a distance of 26.09 feet; thence along a reverse curve to the left, tangent, to the preceding curve, havL~g a central angle of 660 50' and a radius of 395.feet, a distance of 460075 feet: thence along a compound curve to the left, tangent to the precedin~ curve, having a central angle of 200 17' 45" and a radius of 1060 feet, a distance of 375,,48 feet; thence North 760 22' 45" West 45.38 feet to the point of beginningo -continuedn EXHIBIT nAn PAGE I of 2 - __ . J DESCRIPl'ION -continued- R.ARCEL TWQ BE3INNING at the most Northerly corner of the parcel of land described in Parcel Two of the Deed to C. Fred Holman, Inc., a corporation, recorded February 1, 1957 in Book 109l of Official Records at Page 31t thence along the Northeasterly boundary line of said Parcel Two, South 760 251 59" East 45.38 feet; thence tangent to the last preceding course along a curve to the right, having a radius of 1060 feet, whose center bears South 130 341 Ol" West through a central angle of 200 171 45" an arc distance of 375048 feet to a point of compound curvature; thence along a curve to the right having a radius of 395 feet, whose center bears South 330 511 46" West through a central angle of 660 501, an arc distance of 460.75 feet to the Northeasterly corner of Cecilia Way, as shown upon the Map entitled, "Record of Survey of Lands of Farrar Association", filed June 12, 1962 in Book 3 of Surveys at Page 18i thence leaving said Northeasterly line and along the Northerly line of said Cecilia Way, North 780 181 40" West 60 feet to the Northwest corner of said Cecilia Way, said point being on the Easterl~i line of Lot I, as shown upon the map entitled, "Map of Pelican Hill", filed November I, 1965 in Map Book 13 at Page 42; thence leaving said Northerly line a~d along the Northeasterly line of Lots 1, 2, 3 and 4, as shown upon said map on a curve to the left, whose center bears North 790 18' 14" West 345 feet through an angle of 580 131 19", an arc distance of 350.577 feet, thence on a compound curve to the left, having a radius of 995.852 feet through a central angle of 100 151 33", an arc distance of l780313 feet to the most Northerly corner of said Lot 40 said point being the Northeasterly corner of Parcel Au as shown upon the map entitled, "Parcel Map, Lands of American Savings and Loan Association", filed November_lO, 1970 in Book 5 of Parcel Maps at Page 43; thence along the Northerly line of Parcel A and Parcel B, as shown upon said Parcel Map, on a curve to the left, whose center bears South 230 36' 13" West 9950852 feet, through a central angle of 100 02' 12", an arc distance of 174.446 feet: thence North 760 251 59" West 720874 feet to the Southeasterly line of the lands as shown on the Map entitled, IIMap of Bel Aire Estates" 0 filed April 8, 1953 in Map Book I 7 at page 82; thence leaving said Northerly line and along said Southeasterly line, North 480 061 46" East 300351 feet; thence North 240 OIl 38" East 25042 feet to the point of beginning. PAGE 2 of 2 R I I Ii!'!!!!! ) ~!;f; t f :~ ... " ~ ~ ;~ k f.rifl.' I~ , ~ ,,' ;: t ~, II ~ ~~ ! ~ I ~ I (If~" ~~ I~ ~o :-." ~." ~ Iill ~ i! ~! I ~!1-5i: i ~!~ gj;~ a J i , 7! '!' :-'!' ; :~~ :~! ; ,-~ , " ... '" .~7 : ~. l a .. ~ ~.\ . - ~: !! . . i ~ i ~;: 1 ". ~'!'.i.i. !! ;C'*.~ . ;tn :n ~;i:I ,ql.~!.:~I' ,,-j ~=;~ ,f l~;~ ;; . ~~ z : I ~-I ,. .. o .... 0 : /; .... -~ EXHIBIT "B" ~ ;::! = : i ~ I -I . I i j 1 f I' , I ,. l -I J ORDINANCE NO. 330 N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING A MASTER PLAN FOR TIBURON HIGHLANDS BE IT ORDAINED by the Town Council of the Town of Tiburon as follows: Section 1. Findings. The Town Council finds as follows: General A. R. C. Holdings, Inc., ("Owner"), as owner of approximately 30 acres of real property (the "Property") located off the extensions of upper and lower Cecilia Way and Warrens Way in the Town of Tiburon, has submitted a master plan application (the "Master Plan") to develop 43 detached single family residences on the Property. The Master Plan application consists of the following: 1. Application for Land Use Action Form 2. Written Master Plan Application prepared by CSW Consultants dated February 1, 1988. 3. Map Exhibits: (a) Site Development Plan, revised 3/23/88 - Exhibit #1 (CSW Consultants) (b) Boundary and Existing Topography - Exhibit #2 (CSW Consultants) (c) Limits of Graded Area, revised 3/14/88 - Exhibit #3 (CSW Consultants) (d) Geotechnical Plan - Exhibit #4 (Donald Herzog & Associates, Inc.) (e) Grading Plan, revised 3/14/88 - Exhibit #5 (CSW Consultants) (f) Street and Utility Plan, revised 3/14/88 - Exhibit #6 (CSW Consultants) 4. Environmental Information Form 5. Geotechnical Investigation Reports dated July 22, 1985, February 2, 1988 and February 23, 1988, prepared by Donald Herzog & Associates, Inc. B. The Property is zoned RPD-2 (Residential Planned Development) C. In the past eight years the Property has been the subject of several prior master plan and other zoning and development applications by the owners of the Property and actions by the Town, a portion of which are discussed below: 1. In April of 1981 the then current owner of the Property, Innisfree Tiburon Associates, submitted its application for approval of a master plan for development of 107 dwelling units on the Property. 2. On April 20, 1983, the Town Council adopted its Ordinance 269 N.S. approving a master plan (the "Innisfree Master Plan") which permitted the construction of a range of 61 to 73 dwelling units on the Property. 3. Thereafter, Innisfree Tiburon Associates transferred the Property to Tiburon Vista Associates, and in June of 1984, Tiburon Vista Associates submitted its application for a modification to the Innisfree Master Plan to permit the construction of 69 dwelling units on the Property of a nature and in a configuration different than that permitted under the Innisfree Master Plan. 4. On October 9, 1985, the Planning Commission of the Town acted upon the application of TiburoaVista Associates by adopting its Resolution 429 recommending approval of a master plan (the "Tiburon Vista Master Plan") which would permit construction of 67 dwelling units on the Property. 5. On October 16, 1985, the first in a series moratoria on development within the Town was enacted (the "Moratoria"). As a result thereof, further processing of the Tiburon Vista Master Plan was halted. Because of the continued pendency of the Moratoria and because of the possibility that under California Government Code Sections 65950- 65957.1, the Tiburon Vista Master Plan would automatically be adopted if the Town Council failed to take any action on it, on August 20, 1986, the Town Council, pursuant to its Resolution No. 2401, denied the application of Tiburon Vista Associates without prejudice. 6. Thereafter Tiburon Vista Associates transferred the Property to R. C. Holdings, Inc. Consistency with General Plan D. Pursuant to its Resolution No. 2492 which was adopted on October 21, 1987, the Town requested that the California Governor's Office of Planning and Research grant the Town a -2- one-year extension of the deadline for the Town to update its current General Plan (the "Current General Plan"). E. On December 3, 1987, by letter dated December 1, 1987, the California Governor's Office of Planning and Research granted the Town's request described in Section 1. D. above on the condition that the Town process any applications for discretionary approvals which had been submitted to the Town prior to December 1, 1987 in accordance with the Town's current General Plan and that the Town process any development applications which were submitted on or after December 1, 1987, in accordance with the Town's revised General Plan. On December 7, 1987, the California Office of Planning and Research modified its approval by permitting the Town to process applications in accordance with the Town's Current General Plan in connection with the settlement of litigation challenging the validity of the Town's moratorium. F. Owner and others affiliated with it are engaged in litigation with the Town (the "Litigation") entitled Robert C. Huff, et ale vs. Town of Tiburon, et al., Marin County Superior Court Action No. 129520, and R. C. HOldings, Inc., vs. Town of Tiburon, et al., United States District Court for the Northern District of California Case No. C 87 0814, by which various actions of the Town, including the Town's denial of the Tiburon Vista Master Plan, and the propriety of the Town's Moratoria, are challenged. The Litigation raises numerous issues in connection with initiative ordinance Measure C (Ordinance No. 317) which was adopted by the electorate and became effective on April 26, 1986. G. The Master Plan, as approved hereby, implements the objectives, goals and policies of the Current General Plan and provides balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the Town; to impose appropriate standards and requirements with respect to land uses, building heights and densities, traffic improvements, support facilities (such as utilities and other amenities) as development of the Property pursuant to the Master Plan proceeds; and to impose measures for mitigating adverse environmental impacts in the Town and the surrounding region. The Town believes that the orderly development of the Property pursuant to the Master Plan, as approved hereby, will provide many public benefits to the Town through the imposition of the foregoing standards and requirements under the terms and conditions of this Ordinance, including, without limitation, increased tax revenues resulting in fiscal benefits to the Town, installation of on- and off-site public improvements, construction of beneficial urban in-fill between already developed properties, and helping to meet residential needs within the Town and the region. -3- H. The Master Plan, as approved hereby, is compatible with the surrounding neighborhoods. The residential lots proposed by the Master Plan (as approved hereby) are larger than those in surrounding areas, and the density proposed by the Master Plan (as approved hereby) is lower than that in surrounding areas and that which was permitted by the Innisfree Master Plan and the Tiburon Vista Master Plan. I. Based upon all of the foregoing, on the other matters discussed in this Ordinance, the report by the Town's Planning Director and other Town agencies and departments on Owner's application for approval of the Master Plan, and all other evidence heard and submitted at the duly noticed public hearings of the Town Council, the Town Council finds that the Master Plan, as approved hereby, is consistent and conforms with the objectives, goals, policies, general plan uses, programs specified in, and all other provisions of, the Current General Plan. Environmental Review J. In connection with the applications and actions described in Section 1.C. above, the following environmental studies have been undertaken pursuant to the provisions of the California Environmental Quality Act: 1. In connection with the application of Innisfree Tiburon Associates described in Section 1.C.l. above, the Town caused an environmental impact report (the "Original EIR") to be prepared by John Roberto Associates, and said Original EIR was circulated for public comments and on September 15, 1982 was certified by the Town Council as being complete in accordance with the requirements of the California Environmental Quality Act. 2. In connection with the application of Tiburon Vista Associates described in Section 1.C.3. above, the Town caused an addendum (the "First Addendum") to the Original EIR to be prepared by John Roberto Associates, and said First Addendum was circulated for public comments and on February 25, 1985 was certified by the Town Council as being complete in accordance with the requirements of the California Environmental Quality Act. K. In connection with the Town's consideration of the Master Plan application, the Town has caused an addendum (the "Second Addendum") to the Original EIR and the First Addendum to be prepared by John Roberto Associates. The Original EIR, the First Addendum and the Second Addendum have been considered by the Town Council in making a decision on the Master Plan application. -4- L. The Master Plan is substantially similar to the application of Tiburon Vista for master plan approval which was considered in the First Addendum and to Alternative 3 ("Alternative 3") discussed and considered in the Original EIR, except that the Master Plan contemplates a substantial reduction in density from both The Tiburon Vista proposal and Alternative 3 and from the Innisfree Master Plan. Furthermore, the Master Plan contemplates construction in no areas other than those which were proposed for construction under the Innisfree Master Plan, the Tiburon Vista Master Plan or Alternative 3, and will not result in any potential environmental impacts which would be greater than or significantly different from those which would result from development of the Property pursuant to the Innisfree Master Plan, the Tiburon Vista Master Plan or Alternative 3. M. The Town has found in connection with its review and consideration of the Master Plan application that (other than the Second Addendum) no subsequent or supplemental environmental impact reports are necessary or required under the California Environmental Quality Act in order to enact this Ordinance, since the Master Plan is consistent with, and within the scope of, the Original EIR and the First Addendum and 'because the applicable mitigation measures provided for therein are implemented and assured of fulfillment by the terms and conditions of this Ordinance. Specifically, but without limi ting the generali ty of the foregoing, .;the. Town has found and determined that the Master Plan and the circumstances under which the Master Plan is to be undertaken will not result in any new significant environmental impacts which were not considered in the Original EIR or the First Addendum which were prepared in connection with the Innisfree Master Plan and the Tiburon Vista Master Plan, so that no further environmental analysis is required under the California Environmental Quality Act. There is no evidence that substantial changes have occurred with respect to the circumstances under which the project is being undertaken which require revisions to the Original EIR or the First Addendum, nor has any new information become available since the Original EIR or the First Addendum were certified as complete which would require revisions thereto. Environmental Impacts N. Town has undertaken, pursuant to the California Environmental Quality Act, through the Original EIR, the First Addendum and the Second Addendum, the required analysis of the environmental effects which would be caused by the Master Plan and has determined those mitigation measures which will eliminate, or reduce to an acceptable level, the potential adverse environmental impacts of the Master Plan as identified in the Original EIR and First Addendum. -5- o. In order to mitigate the adverse environmental impacts referred to in Section 1.N. above, the Town Council has required the Master Plan submitted by the Owner to be modified and conditioned as provided in Section 2 of this Ordinance. P. The Town Council has also considered the eight project alternatives discussed in the Original EIR (including the no project alternative), the Innisfree Master Plan and the Tiburon Vista Master Plan. The Town Council finds that the no project alternative is infeasible and undesirable in that it would not permit the Town to resolve the Litigation and because it would not ensure the benefits to the community resulting from the dedications by the Owner required by this Ordinance and from the stabilization of soils on the Property. The Town Council further finds that all of the other project design alternatives are undesirable and infeasible because they are substantially incompatible with the surrounding community and because they would not permit the Town to resolve the Litigation. In addition, the impacts which the various project alternatives are designed to avoid can be reduced to a considerable degree by the mitigation measures which have been incorporated into the conditions of approval set forth in Section 2 below. Q. In considering the feasibility of mitigation measures and project alternatives discussed in the Original EIR and the First Addendum, the Town Council has taken into account that California limits the Town's ability to impose mitigation measures or project alternatives which have the effect of prohibiting development or reducing residential density if other feasible mitigation measures are available. The Town Council finds that other mitigation measures are feasible and have been incorporated into the conditions of approval set forth in Section 2 below which considerably reduce the adverse impacts identified in the Original EIR and the First Addendum. R. In accordance with Public Resources Code Section 21081 and Section 15093 of the Guidelines promulgated pursuant to the California Environmental Quality Act, and notwithstanding the fact that the Town Council has found that all significant adverse environmental effects from the project have been adequately mitigated or reduced to insignificance as a result of the changes in the project and the mitigation measures incorporated in Section 2 below, the Town Council further hereby adopts a statement of overriding considerations with respect to each significant effect identified in the Original EIR and the First Addendum. The reasons for the Town Council's determination that the benefits of the proposed project outweigh the unavoidable adverse environmental effects such that the remaining environmental impacts, if any, are acceptable include, but are not limited to, the following: -6- 1. Information presented by the Town Engineer and the Owner's engineers indicates that development of the Property pursuant to the Master Plan, including the various landslide repair and erosion control work to be undertaken as part of such development, will stabilize soil conditions on the Property and will make the surrounding area safer. Such repairs and other erosion control work will also improve the drainage conditions in the surrounding areas and will reduce the future cost to Town residents of maintaining drainage improvements. 2. The Owner has agreed to dedicate approximately three acres of the Property to the Town. This dedication, which could not be required by the Town as a condition of approval of the Master Plan, brings a significant amount of land, which could otherwise be developed by the Owner or its successors, within the control of the Town for such purposes as the Town may deem appropriate. 3. If the terms and conditions of the settlement agreement for the Litigation are met, approval of the Master Plan application and the development agreement which is being processed concurrently will lead to dismissal of the Litigation. The Litigation, together with cases filed by other developers involving similar challenges, has caused the Town to incur very substantial attorneys fees and other expenses. The expenditure of these fees by the Town to defend Measure C and the actions of the Town has had a substantial adverse effect on the Town's financial status. Settlement of the Litigation with Owner will benefit the Town because of the substantial savings the Town will realize by avoiding further attorneys fees and expenses which would otherwise result if the Litigation with the Owner was to continue, and because of the other terms of the settlement agreement. Other Matters S. This Ordinance: 1. Provides for land uses which are compatible with the uses authorized in and the regulations prescribed for the land use district in which the Property is located; 2. Is in conformity with and will promote public convenience, general welfare and good land use practices; 3. Will not be detrimental to the health, safety and general welfare of the Town or the region surrounding the Town; and, -7- 4. Will not adversely affect the orderly development of property or the preservation of property values within the Town and will promote the same. Approval Process T. The Planning Commission of the Town has held duly noticed public hearings on the Master Plan application and has held a field trip to view the site. u. On March 7, 1988, after (i) due review of and report by the Town's Planning Director and other Town agencies and departments on Owner's application for approval of the Master Plan, (ii) consideration of all other evidence heard and submitted at the duly noticed public hearings of the Planning Commission, and (iii) its field trip, the Planning Commission adopted Resolution No. 437 recommending approval of the Master Plan for thirty-nine (39) lots. On March 23, 1988, the Planning Commission further considered the application and amended said Resolution to recommend approval of the Master Plan for forty-two (42) lots. v. The Town Council has held duly noticed public hearings on the Master Plan application. W. On March 24, 1988, after (i) due review of the reports and recommendations of the Town's Planning Dir,ector and other Town agencies and departments on Owner's application for approval of the Master Plan, and (ii) consideration of all other evidence heard and submitted at the duly noticed public hearings of the Town Council, the Town Council found the Master Plan consistent with the Town's Current General Plan, and introduced this Ordinance as its legislative act. Thereafter, on March 31, 1988, the Town Council adopted this Ordinance as its legislative act. Section 2. Approval. The Master Plan application described above is approved, subject to the conditions and requirements set forth herein: Density 1. The Master Plan is approved for forty-two (42) residential units as shown on the map referred to in Section 1.A.3.(a) above as Exhibit #1 and entitled "Site Development Plan" prepared by CSW Consultants and dated February 1, 1988 and revised on March 23, 1988. 2. Lot 30 is denied approval. -8- 3. Lot 28 is approved at a minimal size, which size shall be determined at the precise plan stage; the building envelope shall be designed to minimize the impact on oak trees on the Lot and to preserve the two (2) oak trees located on the Lot which are considered to be over one hundred years old, and all the trees shall be annexed into the common open space to be maintained by the Homeowners' Association. 4. Lot 29 is approved with the restrictions of a one story house with a height limit of eighteen (18) feet and a set back of thirty (30) feet from the ridge. 5. Lot 11 is approved with the restrictions of a one story house with a height limit of eighteen (18) feet and a set back of thirty (30) feet from the ridge or thirty (30) feet from the property line (whichever creates the greater set back), although consideration may be given to a two story house if the rear yard set back from the edge of the ridge were increased to such a degree that the house does not unduly interfere with the privacy of the residence below. Precise Plan 6. A Precise Plan shall be submitted and shall include, along with other applicable Precise Plan requirements, the following: (a) The Precise Plan shall show all pedestrian trails to be constructed or improved by the developers within the property and the connections of those trails to open space, park areas, adjacent residential areas, schools and local transit facilities. (b) Prior to issuance of a grading permit, an effective erosion control and winterization plan to be implemented during grading of the project site shall be submitted to and approved by the Town Engineer. The plan shall include detailed measures to control erosion of stockpiled earth and exposed soil during construction. Silt traps shall be provided at the project site. The areas of disturbed soil shall be revegetated immediately after grading. The applicant shall post a refundable security with the Town of Tiburon in a form satisfactory to the Town Attorney and in' an amount to be determined by the Town Council, to ensure that the erosion control plan is effectively carried out. -9- (c) All repair, stabilization and contour grading measures shall be identified at the Precise Plan stage and approved by the Town Engineer. Additional assurances may be required by the Town if additional hazards are identified at the construction plan stage and throughout the period during which construction identified in the Precise Plan is carried out. (d) In addition to the landscape plan required as part of the Precise Plan, a landscape plan shall be submitted showing proposed berming, including fencing where appropriate, along the border of the property, including elevations of existing and proposed grades with appropriate contours and elevations. The berms shall minimize the visual impact of the development and maximize the privacy, peace and tranquility of the existing neighborhood. (e) The Precise Plan shall identify and establish the building envelopes (i.e. building setbacks) for the residential buildings to be constructed on the lots. (f) The Precise Plan shall identify and establish the allowable heights for the residential buildings to be constructed on the lots. (g) Individual geotechnical evaluation of every lot shall be provided to and approved by the Town~ngineer. Low/Moderate Income Housing 7. The Applicant's sole obligation with respect to the provlslon of low/moderate income housing shall be as set forth in the Conditional Stipulated Settlement entered into by and between the Town and the Owner and pertaining to the litigation described in Section I.F. above and in the Development Agreement. Geology and Soils 8. Flexible joints for utilities located in fill and colluvium soils shall be provided. 9. Site preparation shall be restricted to the period May to October, unless the Town Engineer agrees that additional time is within the dry season and that work can proceed outside such months. -10- 10. Erosion control measures, to be approved by the Town Engineer, such as planting, siltation ponds and silt fencing shall be required for at least one winter season after construction. All bare slopes shall be planted. During construction, silting basins shall be constructed at the bottom of gullies and slopes to reduce sedimentation in the "east ditch". 11. All landslides or unstable areas on the Property shall be stabilized or repaired in a manner acceptable to the Town Engineer and such work shall be based upon the recommendations of a registered Civil Engineer with geotechnical expertise and/or a registered engineering geologist. All efforts shall be made to save as many oaks and mature trees as possible, excluding eucalyptus trees. 12. All other areas of the subject parcel exhibiting signs of recent slides where vegetation was lost and erosion has occurred shall be cosmetically treated and hydro-seeded to minimize such erosion. 13. Structures located on lots 14, 15 and 16 as shown on Exhibit #1 to the Master Plan Application shall be protected by providing a level buffer area or catchment wall between structures and upslopes, if necessary. 14. Any blasting done for site preparation shall be conducted only if necessary and in such a manner so that ,it is not noticeable to individuals located off of the Property. Hydrology 15. Water travel paths and distances to the point of discharge at the "east ditch" shall be varied to minimize the tendency for pronounced runoff peaking. 16. The drainage culvert under lower Cecilia Way shall be enlarged or replaced and the existing bridge modified to the requirements and satisfaction of the County Flood Control District and the Town Engineer. 17. An easement for a maintenance road adjacent to the "east drainage ditch" and any necessary access easement shall be provided as required by, and offered for dedication to, the Marin County Flood Control and Water Conservation District. 18. Subsurface drains shall be placed in the existing large gully on the west slope prior to backfilling. -11- 26. Landscaping of streets within the Property shall be provided as approved by the Town. Exposed rock surface shall be covered with top soil as required. All trees lost during landslide repairs shall be replaced with 15 gallon maximum size trees as directed by the Town. ' 27. Landscaping as identified on the final approved landscaping plan shall be maintained by the applicant for three (3) years from and after the date the landscaping has been installed. The Town shall inspect the landscaping at least annually during said period, and may require the applicant to make landscaping improvements to conform to the plan, as approved. The landscape maintenance agreement, which may be part of the Subdivision Improvement Agreement, shall be reviewed and approved by the Town Attorney and shall be bonded, or performance otherwise guaranteed to the Town's satisfaction. 28. No redwood trees shall be removed from the area along Southridge Drive during the preparation of the lots fronting on Southridge Drive. The Owner shall be allowed to redesign Southridge Drive as a non-standard culdesac acceptable to the Town Fire Marshall. 29. The Declaration of Covenants, Conditions and Restrictions (CC&R's) for the project shall include provisions for the continued maintenance by the Homeowners' Association of the landscaping located in the project commori areas and for the right of enforcement of this obligation by the Town of Tiburon. Construction 30. A qualified archaeologist shall be consulted in the event that archaeological remains are encountered during subsurface construction, and all work in the immediate area shall be temporarily halted while evaluations and recommendations are being made. 31. Dust shall be controlled during construction by watering the area frequently. A temporary layer of gravel shall be placed on all unpaved construction roads_e- 32. Adjaceqt streets shall be mechanically and/or manually swept clean of soil to reduce street dirt at the discretion of the Superintendent of Public Works during earthwork or other soil generating construction. 33. Noise generating equipment shall not be started before 7:45 a.m. Construction and site preparation shall be limited to weekdays between the hours of 8:00 a.m. and 5:00 p.m. unless specifically authorized in advance by the Town Manager in limited special circumstances. -13- 34. All fire protection requirements shall be to the satisfaction of the Alto Richardson Bay Fire District. 35. Lower Cecilia Way shall not be used for access to the site during construction except to repair or improve the "east ditch". 36. Roads damaged during construction shall be repaired to the satisfaction of the Town Engineer at the Owner's expense. Traffic 37. The intersection of Circle Road, Cayford and upper Cecilia Way, including the entrance to the Property, shall be improved with adequate provisions for sight lines and other design features which enhance traffic safety to the satisfaction of the Town Engineer. 38. The existing street pavement of upper Cecilia Way shall be striped and marked as directed by the Town Engineer. 39. The existing bus stop at Tiburon Blvd. and Cecilia Way shall be relocated to improve pedestrian safety and necessary road adjustments made as directed by Cal-Trans and/or the Golden Gate Transit District. If permitted by Cal-Trans and the County of Marin, eastbound Tiburon Boulevard just east of its intersection with Cecilia Way shall be modified to provide a merge lane for traffic turning left (i.e. east) off of Cecilia Way onto Tiburon Boulevard. These obligations may be satisfied through the payment of an in-lieu fee mutually acceptable to Town and the Owner. 40. Street lights shall be provided at the intersections and at the cul-de-sacs only. 41. Emergency all weather roads, permanently closed to daily traffic, shall be provided as follows: (a) Connect subdivision with Cecilia Way-West Branch leading to the Blackfield Road. (b) Extend Cayford to Southridge Drive if an easement is available. 42. Width of streets shall be determined at the time of Tentative Map approval. 43. Guest parking shall be provided. Two spaces per residential lot, including on-driveway and on-street parking within reasonable walking distance, as determined by the Town. -14- ORDINANCE NO. 329 N.S. AN ORDINANCE OF THE TOWN OF TIBURON APPROVING THE MERGER OF LOTS 19 AND 20, AND LOTS 21 AND 22 IN THE DEL MADERA SUBDIVISION BE IT ORDAINED by the Town Council of the Town of Tiburon as follows: Section 1. Findinas. A. UNIVERSAL TRADING COMPANY, ("Universalll) is the owner of that certain real property (lithe property") located in the Town of Tiburon, County of Marin, State of California, consist- ing of five (5) contiguous unimproved parcels, more particular- ly described as follows: Lots 18, 19, 20, 21, and 22, as shown upon that certain map entitled "Map of Del Madera Sub- division Lands of Tiburon Peaks Partnership, Town of Tiburon", filed August 2, 1984 in volume 19 of Maps at Page 23, Marin County Records. B. In connection with the development of the property, Universal has applied to the Town for approval to merge Lots 19 and 20 into one lot, and Lots 21 and 22 into one lot, resulting in three (3) contiguous legal lots of record. C. Upon merger of the lots as requested, Universal intends to construct a private driveway to serve as roadway access to the lots. D. Pursuant to Government Code section 66499.20-3/4, the Town is authorized to approve a merger of lots by ordinance, and the Town Council finds that it is in the best interests of the Town and Universal to approve such merger on the conditions set forth herein. Section 2. Approval. The Town Council hereby approves, pursuant to the author- ity of Government Code section 66499.20-3/4, and subject to the condition~ set forth herein, the merger of Lots 19 and 20 into one lot, and Lots 21 and 22 into one lot, resulting in three (3) contiguous legal lots of record. Upon compliance by Universal with all of the conditions set forth herein, the Town Manager shall execute a Notice of Merger of the property, and said Notice shall be recorded in the Office of the Recorder of Marin County. Merger of the property shall become effective upon recordation of the Notice of Merger. Section 3. Conditions 1. Universal shall prepare final improvement plans for the driveway and related improvements in a form approved by the Town Engineer. 2. Universal shall prepare a Parcel Map of the property showing the merged lots and subdivision improvements, in a form approved by the Town Engineer, unless this requirement is waived in writing by the Town Engineer. Said Parcel Map shall be recorded along with the Notice of Merger of the property. 3. Universal shall enter into an Agreement with the Town, in a form approved by the Town Attorney and the Town Engineer, which shall include the following terms: (a) Universal shall make provision for public utilities and public or private roadway access to the property, as required by applicable Town ordinances and the Tiburon Fire Protection District, and as approved by the Town Engineer, and for such other applicable subdivision improvements required by the Subdivision Improvement Agreement for the property dated August 2, 1984, and amendments thereto. (b) The deed of trust on Lots 18-22 which presently secures Universal's obligations under paragraphs 2(c) and 5 of the SUbdivision Improvement Agreement, shall also secure any alternate or additional improvements on the property or obligations of Universal required by this Ordinance or the Agreement. 4. In to serve the Conditions, property, in provide for driveway. the event Universal constructs a private driveway property, there shall be recorded a Declaration of Covenants and Restrictions applicable to the a form approved by the Town Attorney, which shall common use, maintenance and ownership of such 5. No resubdivision of the lots merged hereunder shall be permitted, however minor lot line adjustments, where no additional building site is created, may be permitted. Section 4. Separability. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or uncon- stitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The Town Council of the Town of Tiburon hereby declares that it would have nance, any section, subsection, sentence, hereof , irrespective of the fact that any sections, subsections, sentences, clauses declared invalid or unconstitutional. passed this ordi- clause or phrase one or more other or phrases may be Section 5. Effective Date. This ordinance shall be and is hereby declared to be in full force and effect as of thirty (30) days from and after the date of its passage and shall be published once before the expiration of fifteen (15) days after its passage, with the names of the Councilmembers voting for and against the same, in a newspaper of general circulation published in the Town of Tiburon. PASSED AND ADOPTED at a regular meeting Council of the Town of Tiburon on February 3, following vote: of the Town 1988, by the AYES: COUNCILMEMBERS: Duke, Mayberry, Shaw, Wilson, and Mayor Coxhead NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None (/)L J, C:!;LQ STONE D. COXHEAD, MAYOR Town of Tiburon lag draft date: January 14, 1988 Final dra~t: February 8, 1988 ORDINANCE NO. 328 N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING AN AMENDMENT TO ORDINANCE NO. 297 N.S. THE PERINI MASTER PLAN BE IT ORDAINED by the Town council of the Town of Tiburon as follows: A. Applicant, perini Land and Development Company, as heretofore submitted a Master Plan to develop a parcel of 51.7 acres of land bordering Reed Ranch Road and the Belveron Subdivision in the Town of Tiburon. The Master Plan was approved by the Town council in Ordinance No. 297 N.S., adopted on January 7, 1985. B. Applicant has now submitted an application requesting certain modifications to conditions of approval with respect to said Master Plan. A copy of the proposed modified conditions of approval are attached hereto as Exhibit A and made a part hereof. Any such modifications must be adopted in the form of an ordinance amending Ordinance No. 297 N.S. C. An Environmental Impact Report (EIR) was prepared in connection with approval of the Master plan and was reviewed by the planning commission and certified by the Town council on September 5, 1984. Since certification of the EIR, a detailed Geotechnical Investigation for Phase II has been prepared by Harlan-Miller-Tait Associates, dated september 19, 1985, as well a Supplement to such Geotechnical Investigation, dated october 27, 1987. The Geotechnical Investigation and the supplement thereto have been added as an addendum to the EIR in accordance with section 15164 of the CEQA Guidelines (Title 14 of the California Administrative Code). D. The EIR, including the addendum, have been considered by the Town council in making a decision on the application to mq~ifY the conditions of approval for the Master plan. The Master Plan, as the conditions thereto are modified in accordance with the applicant's proposal, will permit development of a project substantially similar to the project reviewed in the EIR. The EIR studied a proposed project of 37 residential lots, whereas the project which could be built in accordance with the Master Plan, if the conditions of approval for the Master Plan are modified as proposed, would contain only 35 lots. In addition, the modifications to the conditions of approval for the Master ORDINANCE NO. 327 N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON LEVYING A SPECIAL TAX FOR THE PROPERTY TAX YEAR 1987-88 COMMUNITY FACILITIES DISTRICT NO. 1985-1 The Town Council of the Town of Tiburon ordains: 1. Ordinance No. 324 N.S., adopted July 15, 1987, is hereby repealed. 2. The repeal of Ordinance No. 324 N.S. and its replacement by this Ordinance is made necessary by the discovery that incorrect figures regarding tax increment had been provided by the Town. 3. Pursuant to Government Code Sections 53328 and 53340, a special tax is hereby levied on the property within Community Facilities District No. 1985-1 described below (parcel descriptions are from the recorded condominium map for Point Tiburon) for the 1987-88 tax year as follows: a. Residential units 1, 2, 5, 8-12 inclusive, 15, 18, 21, 24-26 inclusive, and 35-155 inclusive: the sum of $1,600.00 each; b. Building 13: the sum of $34,304.76; and c. Building 14: the sum of $22,388.08. 4. The appropriate Town officers are directed to provide all necessary information to the Marin County Tax Collector in order to effect the proper billing and collection of the within special tax in the 1987-88 tax year. 5. If for any cause any portion of this Ordinance is found to be invalid, or if the special tax is found inapplicable to any particular parcel, by a Court of competent jurisdiction, the balance of this Ordinance, and the application of the special tax to the remaining parcels, shall not be affected. 6. This Ordinance shall take effect and be in force thirty (30) days after its date of passage; and before the expiration of fifteen (15) days after its passage the same shall be published, with the names of the members voting for and against the same, at least once in a newspaper of general circulation published in the Town of Tiburon. PASSED AND ADOPTED at a regular meeting of the Town of Tiburon on October 21, 1987 by the following vote: AYES: COUNCILMEMBERS: Duke, Wilson, Mayberry, Shaw, Coxhead NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None () j~ f. t:l.rL-J2 I ,~ STONE D. COXHEAD, MAYOR Town of Tiburon ATTEST: Af1b R. L. KLEINERT, TOWN MANAGER/CLERK