HomeMy WebLinkAboutTC Agd Pkt 2009-10-21TOWN OF TIBURON Regular Meeting
Tiburon Town Hall Tiburon Town Council
1505 Tiburon Boulevard October 21, 2009
Tiburon, CA 94920 Regular Meeting - 7:30 p.m.
AGENDA
TIBURON TOWN COUNCIL
CALL TO ORDER AND ROLL CALL
Councilmember Collins, Councilmember Gram, Councilmember Slavitz, Vice Mayor Berger,
Mayor Fredericks
ORAL COMMUNICATIONS
Persons wishing to address the Town Council on subjects not on the agenda may do so at this
time. Please note however, that the Town Council is not able to undertake extended
discussion or action on items not on the agenda. Matters requiring action will be referred to
the appropriate` Commission, Board, Committee or staff for consideration or placed on a future
Town Council meeting agenda. Please limit your comments to three (3) minutes.
CONSENT CALENDAR
All items on the Consent Calendar may be approved by one motion of the Town Council unless
a request is made by a member of the Town Council, public or staff to remove an item for
separate discussion and consideration. If you wish to speak on a Consent Calendar item,
please seek recognition by the Mayor and do so at this time.
1. Town Council Minutes -Approve minutes of October 7, 2009 meeting (Town Clerk
Crane Iacopi)
2. 2009 Metal Beam Guardrail Replacement Project - Adopt Resolution accepting project
and authorize filing of Notice of Completion (Director of Public Works/Town Engineer
Nguyen)
3. Supplemental Law Enforcement (COPS) Funding - Adopt resolution authorizing
expenditure of funds for FY 2009-2010 (Chief of Police Cronin)
4. State and Local Government Reform - Request for Endorsement of Marin County
Leadership Summit (Town Clerk Crane Iacopi)
5. Proposition IA Securitization - Recommendation to authorize sale of the Town of
Tiburon's Proposition IA Receivable from the State of California (Director of
Administrative Services Bigall)
ACTION ITEMS
1. Marin Clean Energy - Hear Presentation by Marin Energy Authority on Energy Service
Provider (ESP) contracts; Public and Council comment (Town Manager Curran, Town
Attorney Danforth)
2. Proposed Memorandum of Understanding (MOU) regarding The Martha Company v.
Town of Tiburon Litigation - Consider adoption of Memorandum of Understanding
for Reduced density EIR alternative for Martha Company development application
currently pending before the County of Marin (Director of Community Development
Anderson, Town Attorney Danforth, Town Manager Curran)
Motion to continue without discussion to a Special Town Council meeting on October 26, 2009, at
6:30 p.m.
PUBLIC HEARINGS
Design Review Board Appeal - Consider appeal of Design Review Board approval for Site
Plan and Architectural Review to construct a new single family dwelling at 22 Mercury
Avenue (Planning Manager Watrous)
Property Address: 22 Mercury Avenue
Assessor Parcel No.: 034-262-31
Applicants: Sam &r Jennifer Dibble
Appellants:, Jeff &t Satoko Boris, Chick &r Anne Lettrich, Jim &z Moira
O'Neal, Rod &r Nancy McLeod
Amendments to Title IV, Chapter 13 (Building Regulations) - Consider amendments to
Title IV, Chapter 13 (Building Regulations) of the Tiburon Municipal Code to refine fire
sprinkler requirements for secondary dwelling units and make other amendments
thereto (Ordinance, first reading); amendment to secondary dwelling unit standards
(Resolution)
Motion required to continue without discussion until November 4, 2009
TOWN COUNCIL REPORTS
TOWN MANAGER'S REPORT
WEEKLY DIGESTS
• Town Council Weekly Digest -October 9, 2009
Town Council Weekly Digest - October 16, 2009
ADJOURNMENT
GENERAL PUBLIC INFORMATION
ASSISTANCE FOR PEOPLE WITH DISABILITIES
In compliance with the Americans with Disabilities Act, if you need special
assistance to participate in this meeting, please contact the Town Clerk at (415) 435-
7377. Notification 48 hours prior to the meeting will enable the Town to make
reasonable arrangements to ensure accessibility to this meeting.
AVAILABILITY OF INFORMATION
Copies of all agenda reports and supporting data are available for viewing and
inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to
Town Hall. Agendas and minutes are posted on the Town's website,
www.ci.tiburon.ca.us.
Upon request, the Town will provide written agenda materials in appropriate
alternative formats, or disability-related modification or accommodation, including
auxiliary aids or services, to enable individuals with disabilities to participate in
public meetings. Please send a written request, including your name, mailing
address, phone number and brief description of the requested materials and
preferred alternative format or auxiliary aid or service at least 5 days before the
meeting. Requests should be sent to the Office of the Town Clerk at the above
address. '
PUBLIC HEARINGS
Public Hearings provide the general public and interested parties an opportunity to
provide testimony on these items. If you challenge any proposed action(s) in court,
you may be limited to raising only those issues you or someone else raised at the
Public Hearing(s) described later in this agenda, or in written correspondence
delivered to the Town Council at, or prior to, the Public Hearing(s).
TIMING OF ITEMS ON AGENDA
While the Town Council attempts to hear all items in order as stated on the agenda,
it reserves the right to take items out of order. No set times are assigned to items
appearing on the Town Council agenda.
Cc-/
TOWN COUNCIL
MINUTES
CALL TO ORDER
Mayor Frede ' called th r meeting of the Tiburon Town Council to order at 7:30 p.m.
on Wedne ay, October 7, 2009, in own Council Chambers, 1505 Tiburon Boulevard, Tiburon,
California.
ROLL CALL
PRESENT: COUNCILMEMBERS:
PRESENT: EX OFFICIO:
Berger, Collins, Fredericks, Gram, Slavitz
Town Manager Curran, Town Attorney Danforth,
Director of Administrative Services Bigall, Director
of Community Development Anderson, Director of
Public Works/Town Engineer Nguyen, Chief of
Police Cronin, Town Clerk Crane Iacopi
Prior to the regular meeting, the Council met in closed session, beginning at 6:30 p.m., to discuss the
following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
(Section 54956.9(a))
Martha Company v. Town of Tiburon
CONFERENCE WITH LEGAL COUNSEL - THREATENED LITIGATION
(Section 54956.9(b))
One Case
INTERVIEW - 7:15 p.m.
(Vacancy on Hilarita-Tiburon Ecumenical Association Board of Directors)
• Carolyn Grey, 2 Mt. Tiburon Road
ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION, IF ANY
Mayor Fredericks said there was nothing to report.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page I
ORAL COMMUNICATIONS
George Landau said that based on comments at a recent town meeting, it appeared that some
residents are unaware of the Town's ban on gas-powered leaf blowers. He also said that
information about the Town's tree ordinance should be put into wider circulation. He said these
were two main areas of interest to townsfolk.
Fran Wilson agreed with his comments about leaf blowers and recommended said that this
information be put into the Town's electronic newsletter.
Helen Lindqvist spoke in opposition to AB 32, the Global Warming Solutions Act. She said that
the globe was cooling, not warming, and that carbon dioxide was not a poison pollutant but
rather the "gas of life." She said that legislation to limit carbon dioxide omissions was based on
faulty science.
Ms. Lindqvist also stated that the Marin Clean Energy initiative was an unnecessary "extra layer
of bureaucracy" and contained hidden costs to the Town. She encouraged people to attend the
public hearings on whether or not the Town should join the initiative.
CONSENT CALENDAR
1. Town Council Minutes - Approve minutes of September 2, 2009 meeting (Town Clerk
a
Crane Iacopi)
2. Town Council Minutes - Approve minutes of September 16, 2009 meeting (Town Clerk
Crane Iacopi)
3. Town Investment Summary - Accept August 2009 report (Director of Administrative
Services Bigall)
MOTION: To adopt Consent Calendar Item Nos. 1-3, as written
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
ABSTAIN: Gram, Item No. 1 (Absent from September 2, 2009 meeting)
ACTION ITEMS
1. Proposed Settlement Agreement for The Martha Company v. Town of Tiburon
Litigation - Reduced density EIR alternative for Martha Company development
application currently pending before the County of Marin (Director of Community
Development Anderson, Town Attorney Danforth, Town Manager Curran)
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 2
Director of Community Development Anderson presented the staff report and gave a brief
overview of the proposed 32-lot site plan and project alternative that was developed with input
from the Council and the public at the September 16 meeting. He deferred to Councilmember
Gram as to specific changes made to the alternative since that meeting.
Anderson said that the next step in the process was to direct staff to prepare a memorandum of
understand (MOU) that would be the basis for a development agreement to be approved by the
Board of Supervisors, and which would govern the project into the future, even after annexation.
Councilmember Slavitz asked when the Martha EIR would be available and whether the
information from these discussions might cause any delays in its issuance. Director Anderson
said that there was no exact timeframe for its release; he said that the current negotiations and the
new alternative would probably result in some sort of delay.
Councilmember Gram gave a brief summary of the history of the project for the new people in
the audience. Gram said that about 4-6 weeks ago, the owners of the Martha Property had
approached the Town to discuss the application being processed by the County, pursuant to a
federal judgment. He said that he and Mayor Fredericks, as an ad hoc subcommittee, met with the
owners on behalf of the Town. Gram said that after several meetings, including meetings that had
taken place since the September 16 Council meeting, a substantial amount of agreement had been
reached but there were still some issues to be resolved.
Gram said that one of the things that had changed since the last meeting was an agreement to
condense Lots No. 6 & 7 and to move Lot 8 up next to them (he pointed these out on the map).
He said that the owners had also agreed to move the house on Lot No. 9 farther down the hill,
and had agreed to keep it one story without accessory structures in order to not obstruct the water
view. (Gram said that the other homes could go up as high as 30 feet, according to Town
guidelines). He said that the owners had also agreed to limit this house size to 5500 square feet.
Councilmember Gram said that these changes would open up the corridor between the two
clusters, which had been a concern of the subcommittee and the public.
To address the issue of neighborhood character raised at the September 16 meeting, Gram said
that the owners had agreed to limit the house sizes on Lot Nos. 1 through 4 to 4800 square feet,
including garage. This would mean, in fact, a house size of 4200 square feet with a 600 square
foot garage. He said that this would be entirely in character with the existing Hillhaven
neighborhood.
Councilmember Gram said that Lot Nos. 19 & 21 off Paradise Drive had been "pulled down"
away from the existing trail. He acknowledged that there were still issues pertaining to trails,
especially the ones that lead to Paradise Drive, and that the discussions continued.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 3
Councilmember Gram said that stakes had been placed on the property to depict certain lots and
the western line of the corridor between Lot Nos. 17 and 9. He said that it would be helpful if the
stakes were marked with lot numbers to make viewing more comprehensible.
Councilmember Gram described the building envelopes and the landscape envelopes of the 32
lots. He said that past the point of the landscape envelope, the lots would contain "private open
space" which would be indistinguishable from the public open space.
Finally, Gram said that the owners knew of the Town and the public's desire to purchase some of
the lots in sensitive areas of the parcel, and that once a map was finalized, there might be further
discussion of this issue. Gram said that it was not possible now due to the difficulty of
determining the value of the lots.
In Exhibit C of the staff report, Councilmember Gram said that Paragraph 24, pertaining to the
formation of an assessment district to raise money for repairs to Paradise Drive, had been
removed. He said that there was no agreement on this issue at this time.
With regard to traffic and construction, Councilmember Gram said that the owners had agreed
not to access the site from Ridge Road or Mountain View for such purposes. He said that the
Town wanted to have the ability to "sunset" the construction road but that this issue, and the
issues of traffic on roads and streets, would have to be addressed more fully in the EIR before any
final agreements were reached.
Councilmember Gram said that the Council would continue to hear input from the public at this
meeting and hopefully take final action on a development agreement by the next meeting.
Mayor Fredericks opened the public hearing.
• John Pilsier, Ridge Road, continued to raise the question of public safety in the event of
an emergency and the inability of exiting the Hillhaven area on the existing streets
currently. He said this condition would be worsened during construction, and after new
homes are built. He asked what would happen if Diviso Street was closed due to
construction or power poles falling down. He asked whether the Town was "on the hook"
for widening the roads or undergrounding the utilities for the new construction; he said
that reducing the number of new homes by 25% would not really reduce traffic in the
same proportion. Mr. Pilsier also asked whether the County could incorporate the current
issues into the existing EIR process. (Gram said that they could; he noted that the Court
had limited the mitigations to health and safety only.)
• George Landau, Sugarloaf Drive, asked whether the trail "around the rocks" would be
preserved; (Gram said that it would); he asked whether story poles could be erected to
have a better visual image of the project, or a photo montage which would show the
heights of the homes, the location of the trails, etc. (Councilmember Slavitz encouraged
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 4
Landau to go view the "little flags" on the property to help address his desire for visual
imagery.) (Mayor Fredericks asked whether story poles were ever erected on the property;
Director Anderson said that there were some erected in 2001 to show the actual outline of
a few of the proposed houses.)
• Victor Wong, Lagoon View Drive, thanked the Council and the Last Chance Committee
for their efforts; he asked for phased construction and an orderly process; he asked how
construction traffic would be "policed." He also said that we would like to see an option
for purchase explored in order to eliminate the 10 homes in the middle of the property and
preserve the open space.
John Dracott, Vistazo West, previous resident of Mount View Drive since 1970, said
that there were problems now with construction traffic; he gave an example of a truck
blocking his driveway for several hours today; he also said that with truck parking on
both sides of the street, drivers were forced to cross the middle line; he questioned the
ability of the police to issue tickets now much less than for a large project in the future.
• Karen Nygren, expressed concern about: 1) the "tremendous destruction" caused by a
"temporary" construction road through the open space and the effect on endangered
species and serpentine bunch grass; and whether the road might cause slides or require
slide repairs; 2) the destruction of the dense oak forest by the construction of Lot Nos. 22
through 31 and whether there was any mitigation contemplated to replace this forest.
I
• Fran Wilson, Lyford Cove/Old Tiburon, said she hoped the construction road would
"come out" and be reduced to a fire road after construction; that the performance bond
was a good idea; that traffic impact fees should be charged in an amount that would allow
all of the affected roads to be rebuilt after the project.
• Joanna Kemper, Last Chance Committee, thanked the Council and the Reed family for
their efforts. She said that while it was sad to see the end of the undeveloped land, each
progressive change had been a good one. She said she hoped the EIR would thoroughly
address traffic impacts and that the traffic should be spread among the affected
neighborhoods.
• Genny Chapman, 45-year resident in the middle of the Reed property, also expressed
worry about the construction road and asked who was responsible if the trucks carrying
heavy loads caused slides. (Mayor Fredericks said that generally speaking, if a property
owner causes a problem, the property owner has to mitigate it.)
• David Barker, Lagoon View, said that the Council had done a "terrific job of threading
the needle," but asked if Lot 8 was visible from Tiburon Boulevard, and if so, please
position it so that it would not be; and that the "unofficial" trail to Founder's Rock be
preserved.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 5
• Jerry Riessen, said the on-line document (staff report) was very useful; he that the entire
length construction road be rehabilitated after construction; said it was hard to tell the
acreage when contemplating the public and private open space; asked that alternative
access points lots continue to be explored; agreed that story poles and photo simulations
would be helpful in the EIR; he asked whether Mt. Tam would still be visible after Lot
No. 5 is built and whether the Golden Gate Bridge would be visible once Lot No. 4 is
built; he said that story poles could help illustrate the answers to these questions; asked
that six-foot tall shrubbery not be planted behind the "clear wire fences" to demark the
landscape envelopes (Councilmember Gram said that this point was not negotiable); he
said that the maps provided by the Town were not as useful as maps that were drawn to
scale and said he would like maps to figure out distances; he said he hoped that the
assessment district was somehow agreed to in order to maintain Paradise Drive; that he
understood that the County was doing a full EIR (not just limited to health and safety);
that he and others attended the Town's General Plan hearings in order to influence the
future development of the Martha property and he asked that the EIR at least reference
Tiburon's General Plan ("Tiburon 2020").
• John Dracott, Vistazo West, asked how the neighborhood roads would be categorized
after the project is built (would they be public, would they be for vehicle traffic only, or
would they include areas for bicycles, children, dogs, etc; (Mayor Fredericks said that
there had to be adequate right-of-way to have a bicycle lane).
• John Laird, Harbor Oak Drive, two-month resident, said that he thought Lots 3, 4 & 5
were the most critical to purchase for open space purposes (as opposed to Lots 9-17).
• George Landau had more questions about the construction road after the fact. (Vice
Mayor Berger said that he thought it would be needed as a fire road; Mayor Fredericks
said that it would be in a condition that a person could walk on).
• Joanna Kemper asked how much longer the Council would accept comments. (Mayor
Fredericks said the hope was to approve a final agreement at the next Council meeting.)
• Jeannie Tymstra, asked if in the current agreement all construction traffic would come
off Paradise Drive. (Councilmember Gram responded that it was proposed that way under
both plans but reiterated that it was important to get the traffic studies and to keep all
options open.) Mrs. Tymstra said that as she and her husband neared retirement, they
were looking forward to enjoying their home (without a lot of construction traffic).
Mayor Fredericks closed the public hearing and asked for Council comment.
Vice Mayor Berger commented that the 100-foot wide expansion (by consolidating and
repositioning some of the lots) to the open space corridor was a real improvement (to avoid a
constricted feeling when accessing the open space).
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 6
Berger said that he was concerned about the landscaping on certain lots directly above Paradise
Drive, specifically Lots 18, 21 and 27, and asked if there was a way to require property line
setbacks of about 20 feet for the landscape envelopes and limit the setback areas to
"naturalistic" vegetation, which would be more compatible with the existing look of the area.
Berger said that it would be a mistake to dictate a particular architectural style in this area (i.e.
"Craftsman-inspired style") and said there were many other options and innovations such as
planted green roofs that were energy efficient and could add camouflage. He thought the Design
Guidelines should not limit the project to pitched roofs only.
Councilmember Slavitz agreed with these comments and applauded the tremendous work of the
subcommittee and staff, as well as the comments from the public. He said that he, too, wished
there were fewer lots on the property but said that it seemed at this point to be a "win-win"
situation. He said that he did not like the idea of a construction road but said that it was important
to wait for the traffic studies to determine the final outcome. He said that while "serial"
construction seemed like a good idea, 10 years of construction was too long. He also encouraged
everyone to walk the property with a map to look at the fence line markers. He said that he was
pleasantly surprised at how much open space was actually being preserved as a result of the
"clustering" and other negotiated points.
Slavitz said that an existing trail from Lot 1 to the St. Hilary Open Space Preserve should be
preserved in some form ; he said that the road assessment district was a good idea, as well.
Slavitz encouraged everyone to continue to stay involved with the project.
Councilmember Collins thanked the subcommittee for a much improved plan that included
smaller houses, smaller lots near Hillhaven, and no lots on the primary ridge.
Collins said that "we all care about the same things" like roads and construction traffic. He said it
might be helpful to issue notices of "substantial completion" rather than waiting for Certificates
of Occupancy in order to mitigate traffic. But he said that CEQA (the EIR) would address the
traffic issues in more detail, along with the safety concerns relating to whether fire trucks could
gain access to the area, and other things. Collins said that he liked the idea of providing acreage
calculations and story poles.
Mayor Fredericks said that when the idea of a construction road came up, it seemed like a good
idea that would avoid the Diviso/Solano bottlenecks and provide an "escape hatch" for
Hillhaven. But she, too, said it was important to get the facts and that the EIR would provide
them in its traffic studies of this area and Paradise Drive.
Mayor Fredericks thanked the Council and the community for their input.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 7
MOTION: To direct staff to prepare a Memorandum of Understanding
incorporating the Council's comments for adoption at the next meeting.
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
2. Purchase of Tax and Revenue Anticipation Note for Investment Purposes -
Recommendation to Purchase 2009 Tax and Revenue Anticipation Note from the Town
of Fairfax, California (Director of Administrative Services Bigall)
Director of Administrative Services Bigall gave the report which recommended that the Town
Council approve the purchase of a $500,000 Town of Fairfax 2009 Tax and Revenue
Anticipation note (TRAN).
Bigall said that the Town of Tiburon currently invests $20 million in idle funds with the State of
California Local Agency Investment Fund (LAIF) and in Certificates of Deposit. Both
investments are currently paying less than I% per annum, according to Bigall, while the proposed
note would pay 4% per annum. Bigall said that the Town's Investment Policy focused on safety,
liquidity and yield and that the proposed purchase of the note met these criteria.
The Director said that Fairfax normally pools with other California agencies through the
California Community TRANs program to sell its notes. However, investor demand for the 2009
TRANs was extremely limited this year, and the pool was not successful in finding investors for
the transaction. The Town of Fairfax then approached the Town of Tiburon to determine whether
Tiburon would be interested in private placement for the purchase of their note. She said that the
Town's Finance subcommittee had met to discuss these issues and recommended the purchase.
Bigall said that the Town of Fairfax had a AA Standard & Poor rating which was higher than the
Town of Tiburon's investment policy requirements. She also stated that Fairfax property values
(on which the note is based) continued to rise. She said that the $500,000 note would be repaid
directly from the County of Marin (Tax Assessor's office) on or before December 22 through an
escrow account with the Bank of America. She said that Fairfax had agreed to reimburse the
Town for its staff time up to $750 (current figure).
Bigall said that there was no financial cost to the Town (other than staff time above) to effect the
transaction, and that the Town would gain $2,700 in interest for the two months. She said that a
second similar transaction in January 2010 would be brought back to Council if this was
successful.
Mayor Fredericks asked whether the taxes would be repaid from local property taxes rather than
from the State of California. Ms. Bigall affirmed this statement.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 8
The Mayor asked why the transaction would be repeated. Ms. Bigall said that instead of a
$1 million note purchase, the Finance subcommittee had recommended splitting the purchase into
two notes of $500,000, to further minimize the risk to the Town of Tiburon.
Councilmember Slavitz, member of the Finance subcommittee, said the transaction posed little
risk, earned the Town a better interest rate, and was a way to help out another community in
Marin County.
Mark Pressman, bond advisor for the Town of Fairfax, answered questions from the Council. He
said the pooled TRANs represented hundreds of millions of dollars but that the short-term rates
were well below I%. He said that due to the current economy and state budget crisis, many
investors did not trust the State and were not willing to purchase these notes. He said this left
many communities "high and dry."
Pressman said that TRANs were used by many communities to even out their cash flow. He said
that arbitrage was restricted to one year by federal regulations. He commended the two towns for
coming up with a creative solution to this problem; he also commended the Town of Tiburon for
having accumulated substantial reserves.
Councilmember Collins asked about the risks.
Pressman said that in this case, they were significantly reduced by the fact that the anticipated
receipts were significantly greater than the amount of the note; that the County will forward the
entire amount of the receipts; and that the Town is in first position to be paid and would receive
principal and interest.
Collins asked what would happen in the worst case scenario of the Town of Fairfax filing for
bankruptcy. Mr. Pressman said that Fairfax was not in bad financial shape, like the City of
Vallejo.
Collins asked whether Vallejo's bankruptcy had "wiped out" its debt obligations. Pressman said
no, that this had not yet been negotiated through the courts.
Councilmember Collins asked whether the Town of Fairfax could get a bank loan instead of
selling TRANs. Pressman said that he did not know, but he said that the sale of the TRANs was a
good solution for Tiburon to improve its interest rate, and that bifurcating the loan was a good
way to mitigate exposure.
Councilmember Gram noted that the Town did not hold a secured interest in this transaction.
Pressman said that was so but that the Town of Fairfax would receive double in the amount owed
to the Town of Tiburon in tax revenues.
Mayor Fredericks asked for public comment. There was none.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 9
MOTION: To adopt the resolution authorizing the purchase of the TRANS from Fairfax as
set forth in the staff report and authorize the Town Manager to sign the note.
Moved: Slavitz, seconded by Berger
Vote: AYES: Unanimous
3. Hilarita-Tiburon Ecumenical Association Board of Directors - Consider appointment
to fill Town representative vacancy on Hilarita Board (Town Clerk Crane Iacopi)
Council said that the applicant, Carolyn Grey, seemed well qualified for the job.
MOTION: To appoint Carolyn Grey as the Town's representative to the H-TEA Board of
Directors
Moved: Slavitz, seconded by Gram
Vote: AYES: Unanimous
PUBLIC HEARINGS
1. Mill Valley Refuse Service Rate Increase - Consider request for 3.1 % rate increase
effective July 1, 2009 (Director of Administrative Services Bigall)
Director of Administrative Services Bigall gave the report. She said that the company had not
requested an increase in 2008 and that the most recent rate review, conducted in late August,
found support for a rate increase for Tiburon of 13.1 She said that the 3.1 % rate increase
requested by Mill Valley Refuse Service (MVRS) was consistent with its contract and the two-
year increase in the Consumer Price Index. She said that this amount represented a $6,000
increase to the franchise fees received by the Town of Tiburon.
Because it was late in the year, Bigall said that the increase would be spread over a nine-month
period, for an effective rate of 4.1 which would be adjusted downward later.
Vice Mayor Berger asked whether this could be "smoothed out" so that people did not see such a
spike in fees on their garbage bills. Town Manager Curran said that MVRS would most likely
come back to the Council to seek another rate increase for the upcoming fiscal year, based on the
rate report. She said that this might make the suggestion moot.
Councilmember Slavitz asked whether the rates had been accelerated like this before. MVRS
President Dave Biggio said that this was the first time the rate study had come out so late in the
year; usually, he said, they came out before the July 1 contract date.
Mayor Fredericks asked where the Town stood on the question of the "evergreen clause" in the
MVRS contract.
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 10
Director Bigall said that the Town had "pulled the trigger" on the clause and that the current
contract was set to expire at the end of 2012. She said that staff was preparing a new contract for
Council's review.
Vice Mayor Berger complimented Mr. Biggio on the friendliness of the men on the trucks and
their interaction with members of the community.
MOTION: To approve the 21St Amendment to the MVRS Franchise Agreement and authorize
the Town Manager to execute the agreement.
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
TOWN COUNCIL REPORTS
None.
TOWN MANAGER'S REPORT
Town Manager Curran noted that the Reed Ranch and Ridge Road overlays would commence on
October 19 and were estimated to wrap up on November 6. She said that a notice of the work had
been mailed to the community. She noted that this project was funded with federal stimulus
dollars.
WEEKLY DIGESTS
• Town Council Weekly Digest - September 18, 2009
• Town Council Weekly Digest - September 25, 2009
• Town Council Weekly Digest - October 2, 2009
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor
Fredericks adjourned the meeting in memory of former mayor, George Ellman, who had passed
away earlier in the week. The Mayor said that Mr. Ellman was an advocate for SMART, an
environmental advocate, and was also a former colleague of hers at UCSF. She adjourned the
meeting at 9:35 p.m.
ALICE FREDERICKS, MAYOR
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 11
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
DRAFT
Town Council Minutes #16 -2009 October 7, 2009 Page 12
To:
From:
Mayor and Members of the Town Council
Department of Public Works
Town Council Meeting
October 21, 2009
Agenda Item: c i Z
Subject: Recommendation to Accept the 2008-09 Tiburon Metal Beam
Guardrail Replacement Project, and Authorize The Filing Of The
Notice Of Completion For The Work.
Reviewed By:
BACKGROUND
On January 7, 2009, the Council authorized staff to advertise and seek bids for the construction of
the 2008-09 Tiburon Metal Beam Guardrail Replacement project. The project was posted and
advertised as required by the State of California's Public Contract Code. In addition to the
required advertising notice, the Town sent notices inviting bids to construction trade publication
plan rooms, and bids were opened on February 4, 2009.
The contract was awarded to A-1 Septic Construction on February 18, 2009, in the amount of
$53,209.00, plus 20 percent for contingency, or 10,642.00. The work was substantially
completed on August 1, 2009. The improvements included installation of new guardrail,
replacement of damaged guardrail and supporting posts, and installation of asphalt curbs.
There was one change order during the course of the project. Based on the work performed and
material installed the final construction cost is $49,738.10, delivering the project within the
awarded construction budget.
FISCAL IMPACT
There is no cost associated with the following recommended action aside from releasing the
retention funds.
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
RECOMMENDATION
Staff recommends that the Town Council:
Move to adopt a resolution accepting this project as complete and authorizing the
Director of Public Works / Town Engineer to execute the Notice of Completion on
behalf of the Town Council, and upon completion of the 35 day period, release the
retention funds to the contractor pending release of any stop notices or Town claims.
Exhibits: Resolution Of The Town Council Of The Town Of Tiburon Accepting The 2008-
09 Tiburon Metal Beam Guardrail Replacement Project And Authorizing The
Filing Of The Notice Of Completion For The Work.
Prepared By: Nicholas T. Nguyen, Director of Public Works/Town Engineer
RESOLUTION NO. -2009
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
ACCEPTING THE 2008-09 TIBURON METAL BEAM GUARDRAIL REPLACEMENT
PROJECT, AND AUTHORIZING THE FILING OF THE NOTICE OF COMPLETION
FOR THE WORK
WHEREAS, The Town Council budgeted funds in Fiscal Year 2008-2009 to complete
the project;
WHEREAS, A-1 Septic Construction was awarded the contract on February 18, 2009 to
perform the work;
WHEREAS, The construction of the project was substantially completed within budget
on August 1, 2009; and
WHEREAS, The final construction cost, including payment of total quantities installed,
is $49,738.10.
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of
Tiburon as follows:
Section 1. The Town Council does hereby accept the 2008-09 Tiburon Metal Beam
Guardrail Replacement project as complete by A-1 Septic Construction.
Section 2. The Town Council authorizes the Director of Public Works / Town Engineer to
execute the Notice of Completion and the Town Clerk to record the Notice of Completion.
Section 3. The Town Council authorizes the Director of Public Works / Town Engineer to
release the retention payment 35 days after the recordation date of the Notice of Completion,
pending release of any stop notices or Town claims.
PASSED AND ADOPTED at a regular meeting of the Town Council on the 21s' day of
October, 2009, by the following vote, to wit:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
ALICE FREDERICKS, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
1 /1
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
BACKGROUND
Mayor and Members of the Town Council
Michael J. Cronin, Chief of Police
Citizen's Options for Public Safety (COPS)
~w
Town Council Meeting
October 21, 2009
Agenda Item: CC-3
Assembly Bill 3229, signed into law as Chapter 134, Statutes of 1996, established the Citizen's
Option for Public Safety Program (COPS). The law allocates funds for "front line law
enforcement' on a population based formula with a minimum award of $100,000.00 per fiscal
year.
On July 24, 2009, the Governor signed the state budget providing communities with the annual
baseline funding in the amount of $100,000. Funds are being distributed over the FY in four
increments of $25.000.00 each through the county.
On June 3, 2009, the Council adopted the Police Department Budget that included authorization
of a COPS-funded position of Investigator contingent upon receipt of COPS funding. To receive
the funding the Town Council, at a public hearing must by resolution, approve the spending plan
for the expenditure of COPS funds.
FINANCIAL IMPACT
The County of Marin has received the first increment. We will receive the first payment of
$25,000.00 and subsequent payments following receipt by the county of the resolution approving
the spending plan. Providing that funding continues to be forthcoming, the town will receive
$100,000.00 this FY.
RECOMMENDATION
It is recommended that the Town Council:
Direct staff to submit the spending plan and resolution to the County Supplemental Law
Enforcement Oversight CopWittee and accept the funding.
Prepared By: Michael J. Cronin,
Chief of Police
J
RESOLUTION NO. XX-XXXX
A RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF TIBURON
APPROVING AN EXPENDITURE PLAN FOR THE UTILIZATION OF
SUPPLEMENTAL LAW ENFORCEMENT FUNDS
("COPS") MONIES RECEIVED FISCAL YEAR 2009-2010
WHEREAS, Assembly Bill 3229, signed into law as Chapter 134, Statutes of
1996, established the Citizen's Option for Public Safety Program (COPS); and
WHEREAS, on July 24, 2009, the Governor signed the state budget that provides
local government law enforcement jurisdictions with an annual baseline funding in the
amount of $100,000, for frontline law enforcement personnel and other related
equipment; and
WHEREAS, the Town Council, at a public hearing held annually, must approve
of a spending plan for the expenditure of COPS; and
WHEREAS, the Town Council of the Town of Tiburon, at its regular meeting
held on June 3, 2009, adopted the recommended Police Department Budget that included
authorization of a COPS-funded frontline position of Investigator.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon approves the proposed and recommended use of the COPS funds, and further,
that the action to employ additional frontline personnel shall be contingent upon receipt
and continuation of baseline funding in the amounts referred to above. This Resolution,
which approves the recommended plan for the expenditure of COPS monies, is to be
submitted to the County Supplemental Law Enforcement Oversight Committee.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Tiburon on October 21, 2009, by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
ALICE FREDERICKS, MAYOR, TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
To:
From:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Office of the Town Manager
Town Council Meeting
October 21, 2009
Agenda Item: C, C
Subject: Marin County Leadership Summit - Request for Endorsement
Reviewed By: A~~_
BACKGROUND
A leadership "summit" is being organized for November 5, 2009 at the Board of Supervisors
Chambers to discuss state and local government structure and reform.
Mayor Fredericks was contacted by the organizers (Supervisor Adams and others) to seek the
endorsement of local town and city leaders in Marin County for this forum. The organizers are
not seeking support for specific plans or ideas but rather, they are seeking the support of local
leaders to undertake discussion of the issues in a public forum.
RECOMMENDATION
Staff recommends that the Town Council lend its support for this summit and other grass-roots
discussions on state and local government reform.
Exhibits: Draft Announcement
Prepared By: Diane Crane Iacopi, Town Clerk
TOWN OF TIBURON PAGE 1 OF 1
Peggy Curran
From: AFredericks [abfredericks@comcast.net]
Sent: Tuesday, October 13, 2009 6:33 PM
To: Peggy Curran
Subject: FW: Oct 21 Agenda
Here is a draft of the proposed
announcement
Marin County Leadership
Summit
Join us for a conversation on
state and local government structure and reform
November 5, 2009 6:45-8:45 p.m.
Board of Supervisors Chambers
3501 Civic Center Drive, Suite 330, San Rafael
"The failure to adopt a sustainable budget is only the most obvious manifestation
of a dysfunctional state government." Cities Counties Schools
(CSC) Partnership
Can California be governed under its current Constitution?
What reform is needed to provide protections to local government?
California's constitution rivals India's and Alabama's for being one of the longest
and most convoluted in the world. It has been amended or revised over 500
times and contains the cumulative impacts of past voter initiatives.
California is one of 24 states that allow referendums, recalls and voter initiatives,
but it is the only state that does not allow its legislature to override successful
initiatives, and has no sunset clauses that allow initiatives to expire.
Budgetary stalemates and unpredictable impacts to local government could be
a result of a document which no longer serves the purpose of governing a state
as complex as California.
Come and listen to speakers who will offer ideas on
ways to reform and modernize the budget process, structure,
function and financing of government operations.
What are the options?
From: AFredericks [mailto:abfredericks@comcast.net]
Sent: Tuesday, October 13, 2009 6:27 PM
10/14/2009
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
BACKGROUND
Mayor and Members of the Town Council
Administrative Services Department
Town Council Meeting
October 21, 2009
Agenda Item: CC# 5
Recommendation to Authorize Sale of the Town of Tiburon's Proposition 1 A
Receivable from the State of California
This item is a recommendation to adopt the necessary documents to securitize the Town's
Proposition 1 A property tax revenues for FY 2009-10. Securitization refers to a process whereby
an entity sells a future receivable in order to access the cash due from the receivable immediately.
Proposition IA Suspension: Proposition IA was passed by California voters in 2004 to ensure
local property tax, and sales tax revenues remain with local government thereby safeguarding
funding for public safety, health, libraries, parks, and other local services. Provisions can only be
suspended if the Governor declares a fiscal necessity and two-thirds of the Legislature concur.
The emergency suspension of Proposition IA was passed by the Legislature and signed by the
Governor as ABX4 14 and ABX4 15 as part of the 2009-10 budget package on July 28, 2009.
Under the provision, the State will borrow 8% of the amount of property tax revenue apportioned
to cities, counties and special districts. The state will be required to repay those obligations plus
interest June 30, 2013.
Proposition IA Securitization Program: Authorized under ABX4 14 and ABX4 15 the
Proposition 1 A Securitization Program was instituted by California Communities to enable Local
Agencies to sell their respective Proposition 1 A Receivables to California Communities.
California Statewide Communities Development Authority ("California Communities") is a joint
powers authority sponsored by the California State Association of counties and the League of
California Cities. The member agencies of California Communities include approximately 230
cities and 54 counties throughout California.
Under the Securitization Program, California Communities will simultaneously purchase the
Proposition IA Receivables, issue bonds ("Prop IA Bonds") and provide each local agency with
the cash proceeds in two equal installments, on January 15, 2010 and May 3, 2010 (to coincide
with the dates that the State will be shifting property tax from local agencies). The purchase price
paid to the local agencies will equal 100% of the amount of the property tax reduction. All
transaction costs of issuance and interest will be paid by the State of California. Participating
local agencies will have no obligation on the bonds and no credit exposure to the State.
TOWN OF TIBURON RAGE 1 OF 3
If the Town of Tiburon sells its Proposition IA Receivable under the Proposition IA
Securitization Program, California Communities will pledge the Town of Tiburon's Proposition
IA Receivable to secure the repayment of a corresponding amount of the Prop IA Bonds. The
Town of Tiburon's sale of its Proposition IA Receivable will be irrevocable. Bondholders will
have no recourse to the Town of Tiburon if the State does not make the Proposition IA
Repayment.
FISCAL IMPACT
The benefits to the Town of Tiburon of participating in the Proposition IA Securitization
Program include:
Immediate cash relief - the Sale of the Town's Proposition 1A Receivable will provide the Town
with 100% of its Proposition IA Receivable in two equal installments, on January 15, 2010 and
May 3, 2010.
Mitigates impact of 8% property tax withholding in January and May - Per ABX4 14 and ABX4
15 and the proposed clean-up legislation SB 67, the State will withhold 8% of property tax
receivables due to Cities, Counties and Special Districts under Proposition IA. The financing
outlines bond proceeds to be distributed to coincide with the dates that the State will be shifting
property tax from local agencies.
All costs of financing borne by the State of California - The Town will not have to pay any
interest cost or costs of issuance in connection with the participation.
No obligation on Bonds - The Town has no obligation with respect to the payment of the bonds,
nor any reporting, disclosure or other compliance obligations associated with the bonds.
Proceeds of the Sale of the Town of Tiburon's Proposition IA Receivable: Upon delivery of the
Proposition IA Bonds, California Communities will make available to the Town its fixed
purchase price, which will equal 100% of the local agency's Proposition IA Receivable. These
funds may be used for any lawful purpose of the Town and are not restricted by the program.
Fiscal Impacts of non-participation in the Proposition IA Securitization Program: Participation
in the securitization program is optional. The State of California will borrow 8% of the prior year
taxes collected which will be approximately $298,000. The State will take the money from the
current year's property tax revenue in December 2009. The property tax revenue to be borrowed
is general fund revenue and is used to pay for basic Town services such as Police, Public Works,
Community Development and Administration. If the Town does not participate in the
securitization program, the State will pay back the loan plus interest at 2% on June 13, 2013.
RECOMMENDATION
Staff recommends that the Town Council:
Adopt the resolution approving the form of and authorizing the execution and delivery of
a purchase and sale agreement and related documents with respect to the sale of the Town
of Tiburon's Proposition 1 A receivable from the State as part of the Consent Calendar.
Attachments
1. Proposition 1A Receivables Resolution
2. Purchase and Sale Agreement
Prepared by: Heidi Bigall, Director of Administrative Services
RESOLUTION NO.
TOWN COUNCIL
OF THE
TOWN OF TIBURON
A RESOLUTION APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION AND DELIVERY OF A PURCHASE AND SALE AGREEMENT
AND RELATED DOCUMENTS WITH RESPECT TO THE SALE OF THE
SELLER'S PROPOSITION IA RECEIVABLE FROM THE STATE; AND
DIRECTING AND AUTHORIZING CERTAIN OTHER ACTIONS IN
CONNECTION THEREWITH
WHEREAS, pursuant to Section 25.5 of Article XIII of the California Constitution and
Chapter 14XXXX of the California Statutes of 2009 (Assembly Bill No. 15), as amended (the
"Act"), certain local agencies within the State of California (the "State") are entitled to receive
certain payments to be made by the State on or before June 30, 2013, as reimbursement for
reductions in the percentage of the total amount of ad valorem property tax revenues allocated to
such local agencies during the State's 2009-10 fiscal year (the "Reimbursement Payments"),
which reductions have been authorized pursuant to Sections 100.05 and 100.06 of the California
Revenue and Taxation Code;
WHEREAS, the Town of Tiburon, a local agency within the meaning of Section 6585(f)
of the California Government Code (the "Seller"), is entitled to and has determined to sell all
right, title and interest of the Seller in and to its "Proposition IA receivable", as defined in
Section 6585(g) of the California Government Code (the "Proposition IA Receivable"), naively,
the right to payment of moneys due or to become due to the Seller pursuant to Section
25.5(a)(1)(B)(iii) of Article XIII of the California Constitution and Section 100.06 of the
California Revenue and Taxation Code, in order to obtain money to fund public capital
improvements or working capital;
WHEREAS, the Seller is authorized to sell or otherwise dispose of its property as the
interests of its residents require;
WHEREAS, the California Statewide Communities Development Authority, a joint
exercise of powers authority organized and existing under the laws of the State (the
"Purchaser"), has been authorized pursuant to Section 6588(x) of the California Government
Code to purchase the Proposition 1 A Receivable;
WHEREAS, the Purchaser desires to purchase the Proposition IA Receivable and the
Seller desires to sell the Proposition IA Receivable pursuant to a purchase and sale agreement by
and between the Seller and the Purchaser in the form presented to this Town Council (the "Sale
Agreement") for the purposes set forth herein;
WHEREAS, in order to finance the purchase price of the Proposition 1 A Receivable from
the Seller and the purchase price of other Proposition IA Receivables from other local agencies,
the Purchaser will issue its bonds (the "Bonds") pursuant to Section 6590 of the California
Government Code and an Indenture (the "Indenture"), by and between the Purchaser and Wells
Fargo Bank, National Association, as trustee (the "Trustee"), which Bonds will be payable solely
from the proceeds of the Seller's Proposition IA Receivable and other Proposition IA
Receivables sold to the Purchaser by local agencies in connection with the issuance of the
Bonds;
WHEREAS, the Seller acknowledges that (i) any transfer of its Proposition IA
Receivable to the Purchaser pursuant to the Sale Agreement shall be treated as an absolute sale
and transfer of the property so transferred and not as a pledge or grant of a security interest by
Town of Tiburon to secure a borrowing, (ii) any such sale of its Proposition 1 A Receivable to the
Purchaser shall automatically be perfected without the need for physical delivery, recordation,
filing or further act, (iii) the provisions of Division 9 (commencing with Section 9101) of the
California Commercial Code and Sections 954.5 to 955.1 of the California Civil Code, inclusive,
shall not apply to the sale of its Proposition 1 A Receivable, and (iv) after such transfer, the Seller
shall have no right, title, or interest in or to the Proposition IA Receivable sold to the Purchaser
and the Proposition IA Receivable will thereafter be owned, received, held and disbursed only
by the Purchaser or a trustee or agent appointed by the Purchaser;
WHEREAS, the Seller acknowledges that the Purchaser will grant a security interest in
the Proposition IA Receivable to the Trustee and any credit enhancer to secure payment of the
Bonds;
WHEREAS, a portion of the proceeds of the Bonds will be used by the Purchaser to,
among other things, pay the purchase price of the Proposition 1 A Receivable;
WHEREAS, the Seller will use the proceeds received from the sale of the Proposition IA
Receivable for any lawful purpose as permitted under the applicable laws of the State;
NOW THEREFORE, the Town Council of the Town of Tiburon hereby resolves as
follows:
Section 1. All of the recitals set forth above are true and correct, and this Town
Council hereby so finds and determines.
Section 2. The Seller hereby authorizes the sale of the Proposition 1 A Receivable
to the Purchaser for a price equal to the amount certified as the Initial Amount (as defined in the
Sale Agreement) by the County auditor pursuant to the Act. The form of Sale Agreement
presented to the Town Council is hereby approved. An Authorized Officer (as set forth in
Appendix A of this Resolution, attached hereto and by this reference incorporated herein) is
hereby authorized and directed to execute and deliver the Sale Agreement on behalf of the Seller,
which shall be in the form presented at this meeting.
Section 3. Any Authorized Officer is hereby authorized and directed to send, or
to cause to be sent, an irrevocable written instruction to the State Controller (the "Irrevocable
Written Instruction") notifying the State of the sale of the Proposition IA Receivable and
instructing the disbursement pursuant to Section 6588.6(c) of California Government Code of the
Proposition IA Receivable to the Trustee, on behalf of the Purchaser, which Irrevocable Written
Instruction shall be in the form presented at this meeting.
2
Section 4. The Authorized Officers and such other Seller officers, as appropriate,
are hereby authorized and directed, jointly and severally, to do any and all things and to execute
and deliver any and all documents, including but not limited to, if required, appropriate escrow
instructions relating to the delivery into escrow of executed documents prior to the closing of the
Bonds, and such other documents mentioned in the Sale Agreement or the Indenture, which any
of them may deem necessary or desirable in order to implement the Sale Agreement and
otherwise to carry out, give effect to and comply with the terms and intent of this Resolution; and
all such actions heretofore taken by such officers are hereby ratified, confirmed and approved.
Section 5. All consents, approvals, notices, orders, requests and other actions
permitted or required by any of the documents authorized by this Resolution, whether before or
after the sale of the Proposition IA Receivable or the issuance of the Bonds, including without
limitation any of the foregoing that may be necessary or desirable in connection with any default
under or amendment of such documents, may be given or taken by an Authorized Officer
without further authorization by this Town Council, and each Authorized Officer is hereby
authorized and directed to give any such consent, approval, notice, order or request, to execute
any necessary or appropriate documents or amendments, and to take any such action that such
Authorized Officer may deem necessary or desirable to further the purposes of this Resolution.
Section 6. The Town Council acknowledges that, upon execution and delivery of
the Sale Agreement, the Seller is contractually obligated to sell the Proposition IA Receivable to
the Purchaser pursuant to the Sale Agreement and the Seller shall not have any option to revoke
its approval of the Sale Agreement or to determine not to perform its obligations thereunder.
3
approval.
Section 7. This Resolution shall take effect from and after its adoption and
PASSED AND ADOPTED by the Town Council of the Town of Tiburon, State
of California, this day of , 20091 by the following vote:
AYES:
NOES:
ABSENT:
Mayor
Attest:
City Clerk
Approved as to form :
SELLER'S COUNSEL
By
Dated:
4
APPENDIX A
TOWN OF TIBURON
Authorized Officers: Margaret A. Curran, Town Manager
Heidi Bigall, Director of Administrative Services
any designee of any of them, as appointed in a written certificate of
such Authorized Officer delivered to the Trustee.
TOWN OF TIBURON, CALIFORNIA,
as Seller
and
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY,
as Purchaser
PURCHASE AND SALE AGREEMENT
Dated as of November 1, 2009
E-1
TABLE OF CONTENTS
Page
1.
DEFINITIONS AND INTERPRETATION 2
2.
AGREEMENT TO SELL AND PURCHASE; CONDITIONS PRECEDENT 2
3.
PURCHASE PRICE, CONVEYANCE OF PROPOSITION IA RECEIVABLE
AND PAYMENT OF PURCHASE PRICE 3
4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4
5.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
5
6.
COVENANTS OF THE SELLER
7
7.
THE PURCHASER'S ACKNOWLEDGMENT
9
8.
NOTICES OF BREACH
9
9.
LIABILITY OF SELLER; INDEMNIFICATION
9
10.
LIMITATION ON LIABILITY
10
11.
THE SELLER'S ACKNOWLEDGMENT
10
12.
NOTICES
10
13.
AMENDMENTS
10
14.
SUCCESSORS AND ASSIGNS
10
15.
THIRD PARTY RIGHTS
11
16.
PARTIAL INVALIDITY
11
17.
COUNTERPARTS
11
18.
ENTIRE AGREEMENT
11
19.
GOVERNING LAW
12
EXHIBIT A - DEFINITIONS
A-1
EXHIBIT B 1 - OPINION OF SELLER'S COUNSEL
BI-1
EXHIBIT B2 - BRINGDOWN OPINION OF SELLER'S COUNSEL
B2-1
EXHIBIT C I - CLERK'S CERTIFICATE
C 1-1
EXHIBIT C2 - SELLER CERTIFICATE
C2-1
EXHIBIT C3 - BILL OF SALE AND BRINGDOWN CERTIFICATE
C3-1
EXHIBIT D - IRREVOCABLE INSTRUCTIONS TO CONTROLLER
D-1
EXHIBIT E - ESCROW INSTRUCTION LETTER
E-1
i
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of November 1, 2009
(this "Agreement"), is entered into by and between:
(1) TOWN OF TIBURON, a local agency of the State of California within the
meaning of Section 6585(f) of the California Government Code (the "Seller"); and
(2) CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the
State of California (the "Purchaser").
RECITALS
A. Pursuant to Section 25.5 of Article XIII of the California Constitution and
Section 100.06 of the California Revenue and Taxation Code, local agencies within the meaning
of Section 6585(f) of the California Government Code are entitled to receive certain payments to
be made by the State of California (the "State") on or before June 30, 2013, as reimbursement for
reductions in the percentage of the total amount of ad valorem property tax revenues allocated to
such local agencies during the State's 2009-10 fiscal year, which reductions have been
authorized pursuant to Sections 100.05 and 100.06 of the California Revenue and Taxation Code.
B. The Seller is the owner of the Proposition 1A Receivable (as defined
below) and is entitled to and has determined to sell all right, title and interest in and to the
Proposition IA receivable, namely, the right to payment of moneys due or to become due to the
Seller pursuant to Section 25.5(a)(1)(B)(iii) of Article XIII of the California Constitution and
Section 100.06 of the California. Revenue and Taxation Code, in order to obtain money to fund
any lawful purpose as permitted under the applicable laws of the State.
C. The Seller is authorized to sell or otherwise dispose of its property as the
interests of its residents require.
D. The Purchaser, a joint exercise of powers authority organized and existing
under the laws of the State, has been authorized pursuant to Section 6588(x) of the California
Government Code to purchase the Proposition 1 A Receivable.
E. The Seller is willing to sell, and the Purchaser is willing to purchase, the
Proposition 1 A Receivable upon the terms specified in this Agreement.
F. Pursuant to its Proposition IA Receivable Financing Program (the
"Program"), the Purchaser will issue its bonds (the "Bonds") pursuant to an Indenture (the
"Indenture"), between the Purchaser and Wells Fargo Bank, National Association, as trustee (the
"Trustee"), and will use a portion of the proceeds thereof to purchase the Proposition IA
Receivable from the Seller.
G. The Purchaser will grant a security interest in such Proposition IA
Receivable to the Trustee and each Credit Enhancer to secure the Bonds.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Definitions and Interpretation.
(a) For all purposes of this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in Exhibit A attached hereto and which is
incorporated by reference herein.
(b) The words "hereof," "herein," "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; section and exhibits references contained in this Agreement are
references to sections and exhibits in or to this Agreement unless otherwise specified; and the
term "including" shall mean "including without limitation."
(c) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement, instrument or
statute as from time to time may be amended, modified or supplemented and includes (in the
case of agreements or instruments) references to all attachments and exhibits thereto and
instruments incorporated therein; and any references to a Person are also to its permitted
successors and assigns.
2. Agreement to Sell and Purchase; Conditions Precedent.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, on the Closing
Date, for an amount equal to the Purchase Price, all right, title and interest of the Seller in and to
the "Proposition 1A receivable" as defined in Section 6585(g) of the California Government
Code (the "Proposition 1A Receivable"), namely, the right to payment of moneys due or to
become due to the Seller pursuant to Section 25.5(a)(1)(B)(iii) of Article XIII of the California
Constitution and Section 100.06 of the California Revenue and Taxation Code. The Purchase
Price shall be paid by the Purchaser to the Seller in two equal cash installment payments, without
interest (each, an "Installment Payment" and, collectively, the "Installment Payments"), on
January 15, 2010, and May 3, 2010 (each a "Payment Date" and, collectively, the "Payment
Dates"). The Purchaser shall pay the Purchase Price by wire transfer pursuant to wire
instructions provided by the Seller to the Trustee by e-mail to john.deleray@wellsfargo.com or
by facsimile to 213-614-3355, Attention: John Deleray. If wire instructions are not provided to
the Trustee (or if such wire instructions are invalid) payment will be made by check mailed to
the Seller's Principal Place of Business.
(b) The performance by the Purchaser of its obligations hereunder shall be
conditioned upon:
(i) Transaction Counsel receiving on or before the date the Bonds are sold
(the "Pricing Date"), to be held in escrow until the Closing Date and then
delivered to the Purchaser on the Closing Date, the following documents
2
duly executed by the Seller or its counsel, as applicable: (1) an opinion of
counsel to the Seller dated the Pricing Date in substantially the form
attached hereto as Exhibit B1, (2) certificates dated the Pricing Date in
substantially the forms attached hereto as Exhibit C1 and Exhibit C2,
(3) irrevocable instructions to the Controller dated as of the Closing Date
in substantially the form attached hereto as Exhibit D, (4) this Agreement,
(5) a certified copy of the resolution of the Seller's Town Council
approving this Agreement, the transactions contemplated hereby and the
documents attached hereto as exhibits, and (6) an escrow instruction letter
in substantially the form attached hereto as Exhibit E,
(ii) Transaction Counsel receiving on or before the Pricing Date, (1) a
bringdown opinion of counsel to the Seller dated as of the Closing Date in
substantially the form attached hereto as Exhibit B2, and (2) a bill of sale
and bringdown certificate of the Seller (the "Bill of Sale") in substantially
the form attached hereto as Exhibit C3; provided that the Purchaser may
waive, in its sole discretion, the requirements of Section 2(b)(ii)(1);
(iii) the Purchaser issuing Bonds in an amount which will be sufficient to pay
the Purchase Price; and
(iv) the receipt by the Purchaser of a certification of the County Auditor
confirming the Initial Amount of the Proposition IA Receivable pursuant
to the Act.
(c) The performance by the Seller of its obligations hereunder shall be
conditioned solely upon the Purchaser's issuance of the Bonds its execution and delivery of this
Agreement, pursuant to which it is legally obligated to pay the Installment Payments to the Seller
on the Payment Dates as set forth in this Agreement, and no other act or omission on the part of
the Purchaser or any other party shall excuse the Seller from performing its obligations
hereunder. Seller specifically disclaims any right to rescind this Agreement, or to assert that title
to the Proposition IA Receivable has not passed to the Purchaser, should Purchaser fail to make
Installment Payments in the requisite amounts on the Payment Dates.
3. Purchase Price, Conveyance of Proposition IA Receivable and Payment of
Purchase Price.
(a) Upon pricing of the Bonds by the Purchaser, the Purchaser will inform the
Seller that it will pay the Purchase Price in Installment Payments on the Payment Dates.
(b) In consideration of the Purchaser's agreement to pay and deliver to the Seller
the Installment Payments on the Payment Dates, the Seller agrees to (i) transfer, grant, bargain,
sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral
security, without recourse except as expressly provided herein, and the Purchaser agrees to
purchase, accept and receive, the Proposition IA Receivable, and (ii) assign to the Purchaser, to
the extent permitted by law, all present or future rights, if any, of the Seller to enforce or cause
the enforcement of payment of the Proposition IA Receivable pursuant to the Act and other
applicable law. Such transfer, grant, bargain, sale, assignment, conveyance, set over and
delivery is hereby expressly stated to be a sale and, pursuant to Section 6588.6(b) of the
California Government Code, shall be treated as an absolute sale and transfer of the Proposition
1 A Receivable, and not as a grant of a security interest by the Seller to secure a borrowing. This
is the statement referred to in Sections 6588.6(b) and (c) of the California Government Code.
4. Representations and Warranties of the Purchaser. The Purchaser represents
and warrants to the Seller, as of the date hereof, as follows:
(a) The Purchaser is duly organized, validly existing and in good standing under
the laws of the State of California.
(b) The Purchaser has full power and authority to enter into this Agreement and to
perform its obligations hereunder and has duly authorized such purchase and assignment of the
Proposition 1 A Receivable by the Purchaser by all necessary action.
(c) Neither the execution and delivery by the Purchaser of this Agreement, nor
the performance by the Purchaser of its obligations hereunder, shall conflict with or result in a
breach or default under any of its organizational documents, any law, rule, regulation, judgment,
order or decree to which it is subject or any agreement or instrument to which it is a party.
(d) To the best of the knowledge of the Purchaser, no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, public board or body, is
pending or threatened in any way against the Purchaser affecting the existence of the Purchaser
or the titles of its commissioners or officers, or seeking to restrain or to enjoin the purchase of
the Proposition lA Receivable or to direct the application of the proceeds of the purchase
thereof, or in any way contesting or affecting the validity or enforceability of any of the
Transaction Documents or any other applicable agreements or any action of the Purchaser
contemplated by any of said documents, or in any way contesting the powers of the Purchaser or
its authority with respect to the Transaction Documents to which it is a party or any other
applicable agreement, or any action on the part of the Purchaser contemplated by the Transaction
Documents, or in any way seeking to enjoin or restrain the Purchaser from purchasing the
Proposition IA Receivable or which if determined adversely to the Purchaser would have an
adverse effect upon the Purchaser's ability to purchase the Proposition IA Receivable, nor to the
knowledge of the Purchaser is there any basis therefor.
(e) This Agreement, and its execution, delivery and performance hereof have
been duly authorized by it, and this Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation enforceable against it in accordance with the terms
hereof, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights generally or the
application of equitable principles in any proceeding, whether at law or in equity.
(f) The Purchaser is a separate legal entity, acting solely through its authorized
representatives, from the Seller, maintaining separate records, books of account, assets, bank
accounts and funds, which are not and have not been commingled with those of the Seller.
4
(g) All approvals, consents, authorizations, elections and orders of or filings or
registrations with any governmental authority, board, agency or commission having jurisdiction
which would constitute a condition precedent to, or the absence of which would adversely affect,
the purchase by the Purchaser of the Proposition IA Receivable or the performance by the
Purchaser of its obligations under the Transaction Documents to which it is a party and any other
applicable agreements, have been obtained and are in full force and effect.
(h) Insofar as it would materially adversely affect the Purchaser's ability to enter
into, carry out and perform its obligations under any or all of the Transaction Documents to
which it is a party, or consummate the transactions contemplated by the same, the Purchaser is
not in breach of or default under any applicable constitutional provision, law or administrative
regulation of the State of California or the United States or any applicable judgment or decree or
any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which it
is a party or to which it or any of its property or assets is otherwise subject, and, to the best of the
knowledge of the Purchaser, no event has occurred and is continuing which with the passage of
time or the giving of notice, or both, would constitute a default or an event of default under any
such instrument, and the execution and delivery by the Purchaser of the Transaction Documents
to which it is a party, and compliance by the Purchaser with the provisions thereof, under the
circumstances contemplated thereby, do not and will not conflict with or constitute on the part of
the Purchaser a breach of or default under any agreement or other instrument to which the
Purchaser is a party or by which it is bound or any existing law, regulation, court order or
consent decree to which the Purchaser is subject.
Q
5. Representations and Warranties of the Seller. The Seller hereby represents
and warrants to the Purchaser, as of the date hereof, as follows:
(a) The Seller is a local agency within the meaning of Section 6585(f) of the
California Government Code, with full power and authority to execute and deliver this
Agreement and to carry out its terms.
(b) The Seller has full power, authority and legal right to sell and assign the
Proposition IA Receivable to the Purchaser and has duly authorized such sale and assignment to
the Purchaser by all necessary action; and the execution, delivery and performance by the Seller
of this Agreement has been duly authorized by the Seller by all necessary action.
(c) This Agreement has been, and as of the Closing Date the Bill of Sale will have
been, duly executed and delivered by the Seller and, assuming the due authorization, execution
and delivery of this Agreement by the Purchaser, each of this Agreement and the Bill of Sale
constitutes a legal, valid and binding obligation of the Seller enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights generally or the
application of equitable principles in any proceeding, whether at law or in equity.
(d) All approvals, consents, authorizations, elections and orders of or filings or
registrations with any governmental authority, board, agency or commission having jurisdiction
which would constitute a condition precedent to, or the absence of which would adversely affect,
the sale by the Seller of the Proposition IA Receivable or the performance by the Seller of its
obligations under the Resolution and the Transaction Documents to which it is a party and any
other applicable agreements, have been obtained and are in full force and effect.
(e) Insofar as it would materially adversely affect the Seller's ability to enter into,
carry out and perform its obligations under any or all of the Transaction Documents to which it is
a party, or consummate the transactions contemplated by the same, the Seller is not in breach of
or default under any applicable constitutional provision, law or administrative regulation of the
State of California or the United States or any applicable judgment or decree or any loan
agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party
or to which it or any of its property or assets is otherwise subject, and, to the best of the
knowledge of the Seller, no event has occurred and is continuing which with the passage of time
or the giving of notice, or both, would constitute a default or an event of default under any such
instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the
Transaction Documents to which it is a party, and compliance by the Seller with the provisions
thereof, under the circumstances contemplated thereby, do not and will not conflict with or
constitute on the part of the Seller a breach of or default under any agreement or other instrument
to which the Seller is a party or by which it is bound or any existing law, regulation, court order
or consent decree to which the Seller is subject.
(f) To the best of the knowledge of the Seller, no action, suit, proceeding, inquiry
or investigation, at law or in equity, before or by any court, public board or body, is pending or
threatened in any way against the Seller affecting the existence of the Seller or the titles of its
Town Council members or officers to their respective offices, or seeking to restrain or to enjoin
the sale of the Proposition IA Receivable or to direct the application of the proceeds of the sale
thereof, or in any way contesting or affecting the validity or enforceability of any of the
Transaction Documents or any other applicable agreements or any action of the Seller
contemplated by any of said documents, or in any way contesting the powers of the Seller or its
authority with respect to the Resolution or the Transaction Documents to which it is a party or
any other applicable agreement, or any action on the part of the Seller contemplated by the
Transaction Documents, or in any way seeking to enjoin or restrain the Seller from selling the
Proposition 1 A Receivable or which if determined adversely to the Seller would have an adverse
effect upon the Seller's ability to sell the Proposition IA Receivable, nor to the knowledge of the
Seller is there any basis therefor.
(g) Prior to the sale of the Proposition IA Receivable to the Purchaser, the Seller
was the sole owner of the Proposition IA Receivable, and has such right, title and interest to the
Proposition IA Receivable as provided in the Act. From and after the conveyance of the
Proposition IA Receivable by the Seller to Purchaser on the Closing Date, the Seller shall have
no right, title or interest in or to the Proposition IA Receivable. Except as provided in this
Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any
right, title or interest of any kind whatsoever in all or any portion of the Proposition IA
Receivable, nor has the Seller created, or to the best knowledge of the Seller permitted the
creation of, any lien, pledge, security interest or any other encumbrance (a "Lien") thereon.
Prior to the sale of the Proposition IA Receivable to the Purchaser, the Seller held title to the
Proposition IA Receivable free and clear of any Liens. As of the Closing Date, this Agreement,
together with the Bill of Sale, constitutes a valid and absolute sale to the Buyer of all of the
Seller's right, title and interest in and to the Proposition 1 A Receivable.
6
(h) The Seller acts solely through its authorized officers or agents.
Purchaser.
(i) The Seller maintains records and books of account separate from those of the
0) The Seller maintains its respective assets separately from the assets of the
Purchaser (including through the maintenance of separate bank accounts); the Seller's funds and
assets, and records relating thereto, have not been and are not commingled with those of the
Purchaser.
(k) The Seller's principal place of business and chief executive office is located at
1505 Tiburon Boulevard, Tiburon, CA 94920.
(1) The aggregate amount of the Installment Payments is reasonably equivalent
value for the Proposition IA Receivable. The Seller acknowledges that the amount payable to or
on behalf of the Purchaser by the State with respect to the Proposition IA Receivable will be in
excess of the Purchase Price and the Initial Amount of the Proposition IA Receivable and
confirms that it has no claim to any such excess amount whatsoever.
(in) The Seller does not act as an agent of the Purchaser in any capacity, but
instead presents itself to the public as an entity separate from the Purchaser.
(n) The Seller has not guaranteed and shall not guarantee the obligations of the
Purchaser, nor shall it hold itself out or permit itself to be held out as having agreed to pay or as
being liable for the debts of the Purchaser; and the Seller has not received nor shall the Seller
accept any credit or financing from any Person who is relying upon the availability of the assets
of the Purchaser in extending such credit or financing. The Seller has not purchased and shall
not purchase any of the Bonds or any interest therein.
(o) All transactions between or among the Seller, on the one hand, and the
Purchaser on the other hand (including, without limitation, transactions governed by contracts for
services and facilities, such as payroll, purchasing, accounting, legal and personnel services and
office space), whether existing on the date hereof or entered into after the date hereof, shall be on
terms and conditions (including, without limitation, terms relating to amounts to be paid
thereunder) which are believed by each such party thereto to be both fair and reasonable and
comparable to those available on an arms-length basis from Persons who are not affiliates.
(p) The Seller has not, under the provisions of Section 100.06(b) of the California
Revenue and Taxation Code, received a reduction for hardship or otherwise, nor has it requested,
made arrangements for, or completed a reallocation or exchange with any other local agency, of
the total amount of the ad valorem property tax revenue reduction allocated to the Seller pursuant
to Section 100.06(a) of the California Revenue and Taxation Code.
6. Covenants of the Seller.
(a) The Seller shall not take any action or omit to take any action which adversely
affects the interests of the Purchaser in the Proposition IA Receivable and in the proceeds
thereof. The Seller shall not take any action or omit to take any action that shall adversely affect
7
the ability of the Purchaser, and any assignee of the Purchaser, to receive payments of the
Proposition 1 A Receivable.
(b) The Seller shall not take any action or omit to take any action that would
impair the validity or effectiveness of the Act, nor, without the prior written consent of the
Purchaser or its assignees, agree to any amendment, modification, termination, waiver or
surrender of, the terms of the Act, or waive timely performance or observance under the Act.
Nothing in this agreement shall impose a duty on the Seller to seek to enforce the Act or to seek
enforcement thereof by others, or to prevent others from modifying, terminating, discharging or
impairing the validity or effectiveness of the Act.
(c) Upon request of the Purchaser or its assignee, (i) the Seller shall execute and
deliver such further instruments and do such further acts (including being named as a plaintiff in
an appropriate proceeding) as may be reasonably necessary or proper to carry out more
effectively the purposes and intent of this Agreement and the Act, and (ii) the Seller shall take all
actions necessary to preserve, maintain and protect the title of the Purchaser to the Proposition
1 A Receivable.
(d) On or before the Closing Date, the Seller shall send (or cause to be sent) an
irrevocable instruction to the Controller pursuant to Section 6588.6(c) of California Government
Code to cause the Controller to disburse all payments of the Proposition IA Receivable to the
Trustee, together with notice of the sale of the Proposition IA Receivable to the Purchaser and
the assignment of all or a portion of such assets by the Purchaser to the Trustee. Such notice and
instructions shall be in the form of Exhibit D hereto. The Seller shall not take any action to
revoke or which would have the effect of revoking, in whole or in part, such instructions to the
Controller. Upon sending such irrevocable instruction, the Seller shall have relinquished and
waived any control over the Proposition IA Receivable, any authority to collect the Proposition
IA Receivable, and any power to revoke or amend the instructions to the Controller
contemplated by this paragraph. Except as provided in Section 2(c) of this Agreement, the Seller
shall not rescind, amend or modify the instruction described in the first sentence of this
paragraph. The Seller shall cooperate with the Purchaser or its assignee in giving instructions to
the Controller if the Purchaser or its assignee transfers the Proposition IA Receivable. In the
event that the Seller receives any proceeds of the Proposition 1A Receivable, the Seller shall
hold the same in trust for the benefit of the Purchaser and the Trustee and each Credit Enhancer,
as assignees of the Purchaser, and shall promptly remit the same to the Trustee.
(e) The Seller hereby covenants and agrees that it will not at any time institute
against the Purchaser, or join in instituting against the Purchaser, any bankruptcy, reorganization,
arrangement, insolvency, liquidation, or similar proceeding under any United States or state
bankruptcy or similar law.
(f) The financial statements and books and records of the Seller prepared after the
Closing Date shall reflect the separate existence of the Purchaser and the sale to the Purchaser of
the Proposition IA Receivable.
(g) The Seller shall treat the sale of the Proposition IA Receivable as a sale for
regulatory and accounting purposes.
8
(h) From and after the date of this Agreement, the Seller shall not sell, transfer,
assign, set over or otherwise convey any right, title or interest of any kind whatsoever in all or
any portion of the Proposition IA Receivable, nor shall the Seller create, or to the knowledge of
the Seller permit the creation of, any Lien thereon.
7. The Purchaser's Acknowledgment. The Purchaser acknowledges that the
Proposition IA Receivable is not a debt or liability of the Seller, and that the Proposition IA
Receivable is payable solely by the State from the funds of the State provided therefor.
Consequently, neither the taxing power of the Seller, nor the full faith and credit thereof is
pledged to the payment of the Proposition IA Receivable. No representation is made by the
Seller concerning the obligation or ability of the State to make any payment of the Proposition
IA Receivable pursuant to Section 100.06 of the Revenue and Taxation Code and Section 25.5
of Article XIII of the California Constitution, nor is any representation made with respect to the
ability of the State to enact any change in the law applicable to the Transaction Documents
(including without limitation Section 100.06 of the Revenue and Taxation Code or Section
6588.6 of the Government Code). The Purchaser acknowledges that the Seller has no obligation
with respect to any offering document or disclosure related to the Bonds.
8. Notices of Breach.
(a) Upon discovery by the Seller or the Purchaser that the Seller or Purchaser has
breached any of its covenants or that any of the representations or warranties of the Seller or the
Purchaser are materially false or misleading, in a manner that materially and adversely affects
the value of the Proposition IA Receivable or the Purchase Price thereof, the discovering party
shall give prompt written notice thereof to the other party and to the Trustee, as assignee of the
Purchaser, who shall, pursuant to the Indenture, promptly thereafter notify each Credit Enhancer
and the Rating Agencies.
(b) The Seller shall not be liable to the Purchaser, the Trustee, the holders of the
Bonds, or any Credit Enhancer for any loss, cost or expense resulting from the failure of the
Trustee, any Credit Enhancer or the Purchaser to promptly notify the Seller upon the discovery
by an authorized officer of the Trustee, any Credit Enhancer or the Purchaser of a breach of any
covenant or any materially false or misleading representation or warranty contained herein.
9. Liability of Seller; Indemnification. The Seller shall be liable in accordance
herewith only to the extent of the obligations specifically undertaken by the Seller under this
Agreement. The Seller shall indemnify, defend and hold harmless the Purchaser, the Trustee and
each Credit Enhancer, as assignees of the Purchaser, and their respective officers, directors,
employees and agents from and against any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or
was imposed upon any such Person by the Seller's breach of any of its covenants contained
herein or any materially false or misleading representation or warranty of the Seller contained
herein. Notwithstanding anything to the contrary herein, the Seller shall have no liability for the
payment of the principal of or interest on the Bonds issued by the Purchaser.
9
10. Limitation on Liability.
(a) The Seller and any officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Seller shall not be under
any obligation to appear in, prosecute or defend any legal action regarding the Act that is
unrelated to its specific obligations under this Agreement.
(b) No officer or employee of the Seller shall have any liability for the
representations, warranties, covenants, agreements or other obligations of the Seller hereunder or
in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Seller.
11. The Seller's Acknowledgment. The Seller hereby agrees and acknowledges
that the Purchaser intends to assign and grant a security interest in all or a portion of (a) its rights
hereunder and (b) the Proposition IA Receivable, to the Trustee and each Credit Enhancer
pursuant to the Indenture. The Seller further agrees and acknowledges that the Trustee, the
holders of the Bonds, and each Credit Enhancer have relied and shall continue to rely upon each
of the foregoing representations, warranties and covenants, and further agrees that such Persons
are entitled so to rely thereon. Each of the above representations, warranties and covenants shall
survive any assignment and grant of a security interest in all or a portion of this Agreement or the
Proposition IA Receivable to the Trustee and each Credit Enhancer and shall continue in full
force and effect, ,notwithstanding any subsequent termination of this Agreement and the other
Transaction Documents. The above representations, warranties and covenants shall inure to the
benefit of the Trustee and each Credit Enhancer.
12. Notices. All demands upon or, notices and communications to, the Seller, the
Purchaser, the Trustee or the Rating Agencies under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return receipt requested, to such party at the
appropriate notice address, and shall be deemed to have been duly given upon receipt.
13. Amendments. This Agreement may be amended by the Seller and the
Purchaser, with (a) the consent of the Trustee, (b) the consent of each Credit Enhancer, and (c) a
Rating Agency Confirmation, but without the consent of any of the holders of the Bonds, for the
purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement.
Promptly after the execution of any such amendment, the Purchaser shall furnish
written notification of the substance of such amendment to the Trustee and to the Rating
Agencies.
14. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Seller, the Purchaser and their respective successors and permitted assigns.
The Seller may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Purchaser. Except as specified herein, the Purchaser may
not assign or transfer any of its rights or obligations under this Agreement without the prior
written consent of the Seller.
10
15. Third Party Rights. The Trustee and each Credit Enhancer are express and
intended third party beneficiaries under this Agreement. Nothing expressed in or to be implied
from this Agreement is intended to give, or shall be construed to give, any Person, other than the
parties hereto, the Trustee, and each Credit Enhancer, and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this
Agreement or under or by virtue of any provision herein.
16. Partial Invalidity. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions of this Agreement nor the
legality, validity or enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
17. Counterparts. This Agreement may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes.
18. Entire Agreement. This Agreement sets forth the entire understanding and
agreement of the parties with respect to the subject matter hereof and supersedes any and all oral
or written agreements or understandings between the parties as to the subject matter hereof.
11
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed as of the date first written above.
TOWN OF TIBURON, as Seller
By:
Authorized Officer
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY, as Purchaser
By:
Authorized Signatory
12
EXHIBIT A
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise defined herein shall
have the meanings set forth below.
"Act" means Chapter 14XXXX of the California Statutes of 2009 (Assembly Bill
No. 15), as amended.
"Bill of Sale" has the meaning given to that term in Section 2(b)(ii) hereof.
"Closing Date" means the date on which the Bonds are issued. The Closing Date
is expected to be November 19, 2009, but the Purchaser may change the Closing Date by
providing e-mail notification to hbigall@ci.tiburon.ca.us not later than one day prior to the
Closing Date.
"Controller" means the Controller of the State.
"County Auditor" means the auditor or auditor-controller of the county within
which the Seller is located.
"Credit Enhancer" means any municipal bond insurance company, bank or other
financial institution or organization which is performing in all material respects its obligations
under any Credit Support Instrument for some or all of the Bonds.
"Credit Support Instrument" means a policy of insurance, a letter of credit, a
stand-by purchase agreement, a revolving credit agreement or other credit arrangement pursuant
to which a Credit Enhancer provides credit or liquidity support with respect to the payment of
interest, principal or purchase price of the Bonds.
"Initial Amount" means, with respect to the Proposition IA Receivable, the
amount of property tax revenue reallocated away from the Seller pursuant to the provisions of
Section 100.06 of the Revenue and Taxation Code, as certified by the County Auditor pursuant
to the Act.
"Installment Payments" have the meaning set forth in Section 2(a).
"Payment Dates" have the meaning set forth in Section 2(a).
"Pricing Date" means the date on which the Bonds are sold. The Pricing Date is
expected to be November 10, 2009, but the Purchaser may change the Pricing Date by providing
e-mail notification to hbigall@ci.tiburon.ca.us not later than one day prior to the Pricing Date.
"Principal Place of Business" means, with respect to the Seller, the location of the
Seller's principal place of business and chief executive office located at 1505 Tiburon
Boulevard, Tiburon, CA 94920.
A-1
"Proposition 1 A Receivable" has the meaning set forth in Section 2(a).
"Purchase Price" means an amount equal to the Initial Amount.
"Rating Agency" means any nationally recognized rating agency then providing
or maintaining a rating on the Bonds at the request of the Purchaser.
"Rating Agency Confirmation" means written confirmation from each Rating
Agency that any proposed action will not, in and of itself, cause the Rating Agency to lower,
suspend or withdraw the rating then assigned by such Rating Agency to any Bonds.
"Resolution" means the resolution adopted by the Town Council approving the
sale of the Proposition IA Receivable.
"State" means the State of California.
"Transaction Counsel" means Orrick, Herrington & Sutcliffe LLP.
"Transaction Documents" mean this Agreement, the Bill of Sale, the Indenture,
the Bonds and the Irrevocable Instructions For Disbursement of Proposition IA Receivable of
Town of Tiburon, dated as of the Closing Date.
A-2
EXHIBIT Bl
OPINION OF COUNSEL
to
TOWN OF TIBURON
Dated: Pricing Date
California Statewide Communities Development Authority
Sacramento, California
Wells Fargo Bank, National Association
Los Angeles, California
Re: Sale of Proposition IA Receivable
Ladies & Gentlemen:
[I have/This Office has] acted as counsel for the Town of Tiburon (the "Seller") in
connection with the adoption of that certain resolution (the "Resolution") of the Town Council of
the Seller (the "Governing Body") pursuant to which the Seller authorized the sale to the
California Statewide Communities Development Authority (the "Purchaser") of the Seller's
"Proposition IA Receivable", as defined in and pursuant to the Purchase and Sale Agreement
dated as of November 1, 2009 (the "Sale Agreement") between the Seller and the Purchaser. In
connection with these transactions, the Seller has issued certain Irrevocable Instructions For
Disbursement of the Seller's Proposition IA Receivable to the Controller of the State of
California (the "Disbursement Instructions") and a Bill of Sale and Bringdown Certificate of the
Seller (the "Bill of Sale" and, collectively with the Sale Agreement and the Disbursement
Instructions, the "Seller Documents").
Unless the context otherwise requires, capitalized terms used but not otherwise
defined herein shall have the meanings given to such terms in the Sale Agreement. [I/We] have
examined and are familiar with the Seller Documents and with those documents relating to the
existence, organization, and operation of the Seller, the adoption of the Resolution, and the
execution of the Seller Documents, and have satisfied ourselves as to such other matters as [1/we]
deem necessary in order to render the following opinions. As to paragraphs numbered 3 and 4
below, [1/we] have relied as to factual matters on the representations and warranties of the Seller
contained in the Sale Agreement.
Based upon the foregoing, and subject to the limitations and qualifications set
forth herein, [1/we] are of the opinion that:
B1-1
1. The Seller is a local agency, within the meaning of Section 6585(f) of the
California Government Code. The Governing Body is the governing body of the Seller.
2. The Resolution was duly adopted at a meeting of the Governing Body,
which was called and held pursuant to law and with all public notice required by law, and at
which a quorum was present and acting throughout, and the Resolution is in full force and effect
and has not been modified, amended or rescinded since the date of its adoption.
3. To the best of [my/our] knowledge, no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or body, is pending or
threatened in any way against the Seller (i) affecting the existence of the Seller or the titles of its
Governing Body members or officers to their respective offices; (ii) seeking to restrain or to
enjoin the sale of the Proposition IA Receivable or to direct the application of the proceeds of
the sale thereof, or materially adversely affecting the sale of the Proposition 1 A Receivable; (iii)
in any way contesting or affecting the validity or enforceability of the Resolution, Seller
Documents or any other applicable agreements or any action of the Seller contemplated by any
of said documents; or (iv) in any way contesting the powers of the Seller or its authority with
respect to the Resolution or the Seller Documents or any other applicable agreement, or any
action on the part of the Seller contemplated by any of said documents.
4. To the best of [my/our] knowledge, prior to the sale of the Proposition IA
Receivable to the Purchaser, the Seller had not sold, transferred, assigned, set over or otherwise
conveyed any right, title or interest of any kind whatsoever in all or any portion of the Seller's
Proposition IA Receivable, nor had the Seller created, or permitted the creation of, any Lien
thereon.
5. The Seller has duly authorized and executed the Seller Documents and,
assuming the due authorization execution and delivery of the Sale Agreement by the Purchaser,
each Seller Document will be legal, valid and binding against the Seller and enforceable against
the Seller in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or laws relating to or affecting
creditors' rights, and the application of equitable principles and the exercise of judicial discretion
in appropriate areas.
No opinion is expressed concerning the obligation or ability of the State of
California to make any payment of the Proposition IA Receivable pursuant to Section 100.06 of
the Revenue and Taxation Code and Section 25.5 of Article XIII of the California Constitution,
nor is any opinion expressed with respect to the ability of the State to enact any change in the
law applicable to the Seller Documents (including, without limitation, Section 100.06 of the
Revenue and Taxation Code or Section 6588.6 of the Government Code). Furthermore, [1/we]
express no opinion as to the value of the Proposition IA Receivable or as to any legal or
equitable remedies that may be available to any person should the Proposition IA Receivable
have little or no value. No opinion is expressed with respect to the sale of Bonds by the
Purchaser.
B1-2
The legal opinion set forth herein is intended for the information solely of the
addressees hereof and for the purposes contemplated by the Sale Agreement. The addressees
may not rely on it in connection with any transactions other than those described herein, and it is
not to be relied upon by any other person or entity, or for any other purpose, or quoted as a whole
or in part, or otherwise referred to, in any document, or to be filed with any governmental or
administrative agency other than the Purchaser or with any other person or entity for any purpose
without [my/our] prior written consent. In addition to the addressees hereof, each Credit
Enhancer and the underwriters of the Bonds may rely upon this legal opinion as if it were
addressed to them. [I/We] do not undertake to advise you of matters that may come to [my/our]
attention subsequent to the date hereof that may affect the opinions expressed herein.
Very truly yours,
By:
Seller's Counsel
BI-3
EXHIBIT B2
OPINION OF COUNSEL
to
TOWN OF TIBURON
Dated: Closing Date
California Statewide Communities Development Authority
Sacramento, California
Wells Fargo Bank, National Association
Los Angeles, California
Re: Sale of Proposition IA Receivable (Bringdown Opinion)
Ladies & Gentlemen:
t
Pursuant to that certain Purchase and Sale Agreement dated as of November 1,
2009 (the "Sale Agreement") between the Town of Tiburon (the "Seller") and the California
Statewide Communities Development Authority (the "Purchaser"), this Office delivered an
opinion (the "Opinion") dated the Pricing Date as counsel for the Seller in connection with the
sale of the Seller's Proposition 1 A Receivable (as defined in the Sale Agreement), the execution
of documents related thereto and certain other related matters.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Sale Agreement.
I confirm that you may continue to rely upon the Opinion as if it were dated as of
the date hereof. Each Credit Enhancer and the underwriters of the Bonds may rely upon this
legal opinion as if it were addressed to them. This letter is delivered to you pursuant to Section
2(b)(ii)(1) of the Sale Agreement.
Very truly yours,
By:
Seller's Counsel
B2-1
EXHIBIT CI
CLERK'S CERTIFICATE
CERTIFICATE OF THE
CITY CLERK OF
TOWN OF TIBURON, CALIFORNIA
Dated: Pricing Date
The undersigned City Clerk of the Town of Tiburon (the "Seller"), a local agency of the
State of California within the meaning of Section 6585(f) of the California Government Code,
does hereby certify that the foregoing is a full, true and correct copy of Resolution No.
duly adopted at a regular meeting of the Town Council of said Seller duly and
legally held at the regular meeting place thereof on the day of ,
2009, of which meeting all of the members of said Town Council had due notice and at which a
quorum was present and acting throughout, and that at said meeting said resolution was adopted
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
I do hereby further certify that I have carefully compared the same with the original
minutes of said meeting on file and of record in my office and that said resolution is a full, true
and correct copy of the original resolution adopted at said meeting and entered in said minutes
and that said resolution has not been amended, modified or rescinded since the date of its
adoption and the same is now in full force and effect.
I do hereby further certify that an agenda of said meeting was posted at least 72 hours
before said meeting at a location in the City of Tiburon, California freely accessible to members
of the public, and a brief general description of said resolution appeared on said agenda.
Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Purchase and Sale Agreement, dated as of November 1, 2009, between the Seller
and the California Statewide Communities Development Authority.
WITNESS by my hand as of the Pricing Date.
By:
City Clerk of the Town of Tiburon,
California
C1-1
EXHIBIT C2
SELLER CERTIFICATE
SELLER CERTIFICATE
Dated: Pricing Date
We, the undersigned officers of the Town of Tiburon (the "Seller"), a local
agency of the State of California within the meaning of Section 6585(f) of the California
Government Code, holding the respective offices herein below set opposite our signatures, do
hereby certify that on the date hereof the following documents (the "Seller Transaction
Documents") were officially executed and delivered by the Authorized Officer or Officers whose
names appear on the executed copies thereof, to wit:
Document
1. Purchase and Sale Agreement, dated as of November 1, 2009 (the
"Sale Agreement"), between the Seller and the California
Statewide Communities Development Authority (the "Purchaser").
2. Irrevocable Instructions For Disbursement of Seller's Proposition
1 A Receivable to the Controller of the State of California, dated
the Closing Date.
3. Bill of Sale, dated the Closing Date.
Capitalized terms used herein and not defined herein shall have the meaning given
such terms in the Sale Agreement.
We further certify as follows:
1. At the time of signing the Seller Transaction Documents and the other documents and
opinions related thereto, we held said offices, respectively, and we now hold the same.
2. The representations and warranties of the Seller contained in the Seller Transaction
Documents are true and correct as of the date hereof in all material respects.
3. The Town Council duly adopted its resolution (the "Resolution") approving the sale of the
Seller's Proposition 1 A Receivable at a meeting of the Town Council which was duly called
and held pursuant to law with all public notice required by law and at which a quorum was
present and acting when the Resolution was adopted, and such Resolution is in full force and
effect and has not been amended, modified, supplemented or rescinded.
C2-1
Name, Official Title Signature
Margaret A. Curran, Town Manager
Heidi Bigall, Director of Administrative Services
I HEREBY CERTIFY that the signatures of the officers named above are
genuine.
Dated: Pricing Date
By:
City Clerk of the Town of Tiburon,
California
C2-2
EXHIBIT C3
BILL OF SALE AND BRINGDOWN CERTIFICATE
BILL OF SALE AND BRINGDOWN CERTIFICATE
Pursuant to terms and conditions of the Purchase and Sale Agreement (the "Sale
Agreement"), dated as of November 1, 2009, between the undersigned (the "Seller") and the
California Statewide Communities Development Authority (the "Purchaser"), and in
consideration of the obligation of the Purchaser to pay and deliver to the Seller the Purchase
Price (as defined in the Sale Agreement), in two equal installment payments to be made on
January 15, 2010, and May 3, 2010 (collectively, the "Payment Dates"), the Seller does hereby
(a) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely
and not as collateral security, without recourse except as expressly provided in the Sale
Agreement, the Proposition IA Receivable as defined in the Sale Agreement (the "Proposition
IA Receivable"), and (b) assign to the Purchaser, to the extent permitted by law (as to which no
representation is made), all present or future rights, if any, of the Seller to enforce or cause the
enforcement of payment of the Proposition IA Receivable pursuant to the Act and other
applicable law. Such transfer, grant, bargain, sale, assignment, conveyance, set over and
delivery is hereby expressly stated to be a sale and, pursuant to Section 6588.6(b) of the
California Govermnent Code, shall be treated as an absolute sale and transfer of the Proposition
IA Receivable, and not as a grant of a security interest by the Seller to secure a borrowing.
Seller specifically disclaims any right to rescind the Agreement, or to assert that title to the
Proposition IA Receivable has not passed to the Purchaser, should Purchaser fail to snake the
installment payments in the requisite amounts on the Payment Dates.
The Seller hereby certifies that the representations and warranties of the Seller set
forth in the Certificate of the City Clerk dated the Pricing Date, the Seller Certificate dated dated
the Pricing Date and in the Transaction Documents to which the Seller is a party are true and
correct in all material respects as of the date hereof (except for such representations and
warranties made as of a specified date, which are true and correct as of such date). Capitalized
terms used but not defined herein shall have the meanings given to such terms in the Sale
Agreement.
Dated: Closiniz Date
TOWN OF TIBURON
By:
Authorized Officer
C3-1
EXHIBIT D
IRREVOCABLE INSTRUCTIONS TO CONTROLLER
IRREVOCABLE INSTRUCTIONS FOR DISBURSEMENT
OF PROPOSITION 1 A RECEIVABLE OF
TOWN OF TIBURON
Dated: Closing Date
Office of the Controller
State of California
P.O. Box 942850
Sacramento, California 94250-5872
Re: Notice of Sale of Proposition 1 A Receivable by the Town of Tiburon and
Wiring Instructions Information Form
Dear Sir or Madam:
Pursuant to Section 6588.6(c) of the California Government Code, Town of
Tiburon (the "Seller") hereby notifies you of the sale by Seller, effective as of the date of these
instructions written above, of all right, title and interest of the Seller in and to the "Proposition
1A Receivable" as defined in Section 6585(g) of the California Government Code (the
"Proposition 1 A Receivable"), namely, the right to payment of moneys due or to become due to
the Seller pursuant to Section 25.5(a)(1)(B)(iii) of Article XIII of the California Constitution and
Section 100.06 of the California Revenue and Taxation Code.
By resolution, the Seller's Town Council authorized the sale of the Proposition
IA Receivable to the California Statewide Communities Development Authority (the
"Purchaser") pursuant to a Purchase and Sale Agreement, dated as of November 1, 2009 (the
"Purchase and Sale Agreement") and a Bill of Sale, dated the Closing Date (as defined in the
Purchase and Sale Agreement). The Proposition IA Receivable has been pledged and assigned
by the Purchaser pursuant to an Indenture, dated as of November 1, 2009 (the "Indenture")
between the Purchaser and Wells Fargo Bank, National Association, as Trustee (the "Trustee").
The Seller hereby irrevocably requests and directs that, commencing as of the
date of these instructions written above, all payments of the Proposition IA Receivable (and
documentation related thereto) be made directly to Wells Fargo Bank, National Association, as
Trustee, in accordance with the wire instructions and bank routing information set forth below.
Please note that the sale of the Proposition IA Receivable by the Seller is
irrevocable and that. (i) the Seller has no power to revoke or amend these instructions at any
time; (ii) the Purchaser shall have the power to revoke or amend these instructions only if
there are no notes of the Purchaser outstanding under the Indenture and the Indenture has
been discharged; and (iii) so long as the Indenture has not been discharged, these instructions
cannot be revoked or amended by the Purchaser without the consent of the Trustee. Should
D-1
the Purchaser, however, deliver a written notice to the Office of the Controller stating that.
(a) the Seller failed to meet the requirements set forth in the Purchase and Sale Agreement;
(b) the Purchaser has not waived such requirements; and (c) the Purchaser has not purchased
the Proposition IA Receivable as a result of the circumstances described in (a) and (b) above,
then these instructions shall be automatically rescinded and the Seller shall again be entitled
to receive all payment of moneys due or to become due to the Seller pursuant to Section
25.5(a)(1)(B)(iii) of Article XIII of the California Constitution and Section 100.06 of the
California Revenue and Taxation Code.
Bank Name:
Wells Fargo Bank, N.A.
Bank ABA Routing
121000248
Bank Account
0001038377
Bank Account Name:
Corporate Trust Clearing
Further Credit To:
CSCDA Proposition IA Bonds
Bank Address:
707 Wilshire Blvd., 17th Floor
MAC E2818-176
Los Angeles, CA 90017
Bank Telephone
(213) 614-3353
Bank Contact Person:
Robert Schneider
Please do not hesitate to call the undersigned if you have any questions regarding
this transaction. Thank you for your assistance in this matter.
Very truly yours,
TOWN OF TIBURON
By:
Authorized Officer
D-2
EXHIBIT E
ESCROW INSTRUCTION LETTER
ESCROW INSTRUCTION LETTER
2009
California Statewide Communities Development Authority
1100 K Street
Sacramento, CA 95814
Re: Proposition IA Receivable Financin
Dear Sir or Madam:
The Town of Tiburon (the "Seller") hereby notifies you of its agreement to
participate in the California Statewide Communities Development Authority Proposition IA
Receivable Financing. By adoption of a resolution (the "Resolution") authorizing the sale of its
Proposition IA Receivable, the Seller's Town Council has agreed to sell to the California
Statewide Communities Development Authority (the "Purchaser"), for a purchase price that
meets the conditions set forth in the Resolution, all of its right, title and interest in the
Proposition IA Receivable.
Enclosed herewith are the following documents which have been duly approved
and executed by the Seller and which are to be held in escrow by Orrick, Herrington &
Sutcliffe LLP, as transaction counsel ("Transaction Counsel"), as instructed below:
1. certified copy of the Resolution, together with a certificate of the City Clerk,
dated the Pricing Date;
2. the Seller Certificate, dated the Pricing Date;
3. the Opinion of Seller's Counsel, dated the Pricing Date;
4. the Opinion of Seller's Counsel (bringdown opinion), dated the Closing Date;
5. the Purchase and Sale Agreement, dated as of November 1, 2009;
6. the Bill of Sale and Bringdown Certificate, dated the Closing Date; and
7. the Irrevocable Instructions to Controller, dated the Closing Date.
The foregoing documents are to be held in escrow by Transaction Counsel and
shall be delivered on the Closing Date (as defined in the Purchase and Sale Agreement),
provided that such Closing Date occurs on or before December 31, 2009.
E-1
Should (i) the Closing Date not occur on or berfore December 31, 2009, or (ii)
Transaction Counsel receive prior to the Closing Date written notification from Seller or Seller's
Counsel stating, respectively and in good faith, that the representations made in the Seller's
Certificate are not true and accurate, or the opinions set forth in the Opinion of Seller's Counsel
are not valid, in each case as of the Closing Date and provided that the Purchaser may, in its sole
discretion, choose to waive receipt of such representations or opinions, then this agreement shall
tenninate and Transaction Counsel shall destroy all of the enclosed documents.
Very truly yours,
TOWN OF TIBURON
By:
Enclosures
cc: Orrick, Herrington & Sutcliffe LLP
Authorized Officer
E-2
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To: Mayor and Members of the Town Council
From: Community Development Department
Office of the Town Manager
Office of the Town Attorney
Town Council Meeting
October 21, 2009
Agenda Item:
Subject: Consideration of Memorandum of Understanding Setting Forth Terms for
Settlement of The Martha Company v. Town of Tiburon Litigation and Which
Proposes a Reduced Density 32-lot Alternative to the Martha Company's
Application for a 43-lot Development on 110 acres Currently Pending Before
the County of Marin
Reviewed By:
BACKGROUND
In order to provide additional time for the settlement agreement to be properly documented, the
Memorandum of Understanding setting forth settlement terms will be brought forward for
discussion and action at a Special Town Council meeting at 6:30 p.m. on Monday, October 26.
RECOMMENDATION
Staff recommends that the Town Council:
Move to continue consideration of the Memorandum of Understanding with the Martha
Company to a Special Town Council meeting at 6:30 p.m. on Monday, October 26, 2009.
Prepared By: Peggy Curran, Town Manager
TOWN OF TIBURON PAGE 1 OF 1
To:
From:
Mayor & Members of the Town Council
Community Development Department
Town Council Meeting
October 21, 2009
Agenda Item: P//-z
Subject: Amendment to Title IV, Chapter 13 (Building Regulations) of the
Tiburon Municipal Code to Refine Fire Sprinkler Requirements for
Secondary Dwelling Units and make other Amendments Thereto
(Ordinance, First Reading); Amendment to Secondary Dwelling Unit
Standards (Resolution)
Reviewed by:
BACKGROUND
This item was noticed for public hearing on the October 21, 2009 agenda but due to the volume
of other business, will not be heard and will be continued without discussion.
The staff report and associated materials are not included in this packet.
RECOMMENDATION
The Council should by motion continue the item without discussion to the meeting of November
4, 2009.
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920