HomeMy WebLinkAboutTC Agd Pkt 2009-11-18TOWN OF TIBURON Regular Meeting
Tiburon Town Hall Tiburon Town Council
1505 Tiburon Boulevard November 18, 2009
Tiburon, CA 94920 Regular Meeting - 7:30 p.m.
Closed Session - 6:00 p.m.
AGENDA
TIBURON TOWN COUNCIL
CLOSED SESSION - (6:00 p.m.)
PUBLIC EMPLOYEE PERFORMANCE EVALUATIONS
(Section 54957)
Title: Town Manager
Title: Town Attorney
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 21, 2009 regular meeting (Town
Clerk Crane Iacopi)
2. Town Council Minutes - Approve minutes of October 26, 2009 special meeting (Town
Clerk Crane Iacopi)
3. 2008-09 Street Improvement Program - Adopt Resolution accepting project and
authorize filing of Notice of Completion (Director of Public Works/Town Engineer
Nguyen)
4. 1655 Mar West Street/175 Esperanza Street - Adopt Resolution approving a Parcel Map
and taking related actions for the subdivision into two lots of a 0.51-acre parcel; Diane
Ho, owner and applicant; Assessor Parcel No. 059-051-18; Town File /#60402 (Director
of Community Development Anderson)
ACTION ITEMS
1. Lyford Cove Undergrounding Assessment District - Recommendation to adopt a
Resolution Declaring a Surplus in the Improvement Fund and Direct that the surplus be
used to Redeem a portion of Outstanding Bonds (Town Manager Curran/Director of
Administrative Services Bigall)
2. Security Cameras - Review and consideration of proposal to install security cameras on
Tiburon Boulevard and Paradise Drive (Chief of Police Cronin, Director of Public
Works/Town Engineer Nguyen)
TOWN COUNCIL REPORTS
TOWN MANAGER'S REPORT
WEEKLY DIGESTS
• Town Council Weekly Digest -November 6, 2009
• Town Council Weekly Digest - November 13, 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.
C-C - /
TOWN COUNCIL
MINUTES
CALL TO ORDER
Mayor Frederregu mee ing of the Tiburon Town Council to order at 7:30 p.m.
on Wednesd 2009, in T n Council Chambers, 1505 Tiburon Boulevard,
Tiburon, CalROLL 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
ORAL COMMUNICATIONS
None.
CONSENT CALENDAR
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 1A Securitization - Recommendation to authorize sale of the Town of
Tiburon' s Proposition IA Receivable from the State of California (Director of
Administrative Services Bigall)
Town Council Minutes #xx -2009 October 21, 2009 Page 1
MOTION: To adopt Consent Calendar Item Nos. 1-5, as written
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
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)
The Council heard an extensive presentation on the history and formation of the Marin Energy
Authority (MEA), and were brought up to date on current actions before the Board by Dawn
Weisz and Supervisor Charles McGlashan.
According to the Town's staff report, the MEA is preparing to initiate a Community Choice
Aggregation program that would offer "clean energy" options to local customers of participating
agencies in Marin County (Belvedere, Fairfax, Mill Valley, Ross, San Anselmo, San Rafael,
Sausalito, Tiburon, and the County of Marin). A contract with one energy provider, Shell Energy
North America, will be considered by the MEA Board on November 5, 2009. If the Board
approves the contract, its staff will distribute copies to all member agencies, starting a 90-day
review period. By the end of this period, the member agencies must either withdraw from MEA
or vote to participate in the CCA program.
Both Ms. Weisz and Mr. McGlashan emphasized that the procurement of clean energy (through a
CCA) would do more for the reduction of carbon emissions than any single other program
currently in place in the County.
Mayor Fredericks said that because there was a large number of people in the audience present
for the appeal hearing, and people with families at home, she would continue the public question
and comment portion on MEA until after that hearing.
She moved to agenda Public Hearing Item No. 1 and asked for a staff report.
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.
Town Council Minutes #xx -2009 October 21, 2009 Page 2
PUBLIC HEARINGS
1. 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 & Jennifer Dibble
Appellants: Jeff & Satoko Boris, Chick & Anne Lettrich, Jim & Moira
O'Neal, Rod & Nancy McLeod
Director Anderson summarized the written staff report. He said that several second story homes
had been approved in the Belveron East neighborhood and that the Design Review Broad had
come up with different approaches to minimize the impacts on neighbors, such as limiting decks
on second stories and additional landscaping. He noted that new fire regulations would limit the
use of landscaping in this application as a mitigating tool; however, he said the Board had
eliminated the deck from the second story master bedroom. Anderson said that although the
Board had voted to approve the project, it was clearly a "close call" and compatibility with the
neighborhood remained at the heart of the appeal, along with the loss of privacy to surrounding
neighbors.
Mayor Fredericks `opened the hearing to the appellants.
Jim O'Neill and Jeff Boris made the presentation on behalf of the four families who appealed,
including the Lettrich's and the McLeod's. They presented their grounds of appeal, summarized
below, utilizing photographs and slides. (Staff s responses to these grounds are contained in the
written report.)
1) Loss of privacy to homes and yards of surrounding neighbors - Mr. Boris noted in a slide that
the height of Town Hall at the weathervane was 22 feet and that the proposed Dibble home was
24 feet at its peak; both gentlemen noted that one-story homes "worked well" in the
neighborhood, especially in the inland section they referred to as the "island"; they described in
detail the impacts to the privacy of the surrounding homes and one across the street; Mr. O'Neal
said that other second story applicants had worked more successfully with neighbors to resolve
their differences; he said some of the applications contained only a master suite upstairs and
noted that the Dibble home would be the largest second story with a master suite and additional
bedrooms.
2) Loss of sunlight - Both speakers complained of light pollution and loss of sunlight; one said
that he would have his view of the sunset completely blocked, in additional to the loss of one-two
hours of sunlight during the day; O'Neal said that the DRB did not know of the new fire
regulations when they approved the landscaping plan, and that not all of the board members came
to visit the site, in any event.
Town Council Minutes #xx -2009 October 21, 2009 Page 3
3) Inconsistency with neighborhood character - The speakers noted the unique character of the
neighborhood, the smaller house sizes from other areas of Tiburon, and that all the residents
sought privacy, views and sunlight in their yards; O'Neal reiterated that a majority of the two-
story homes were on the perimeter of the neighborhood, not in the middle "island"; of the 142
homes in Belveron East, the appellants showed the location on a map of the 45 homes that
supported the appeal and eight homeowners who supported the project, per a petition that had
been submitted.
4) Plan discrepancies - The appellants said that there were inconsistencies between the site plan,
floor plans, and landscape plans.
5) DRB precedent for overriding - The appellants said that the Board had set a precedent for
overriding recommendations of staff and board members not present at the July 2, 2009 meeting.
6) Diversity of housing stock - The appellants said that the approval of the project would lessen
the diversity of housing stock by promoting larger and more expensive homes and two-story
dwellings instead of one-story homes.
Mayor Fredericks asked the appellants to describe what they were asking, for the record.
Mr. Boris said that the appellants would prefer to have a one-story home in that location, and if
that was not possible, to at least reduce the size of the second story to be more in character with
the neighborhood, perhaps allowing just a one-bedroom suite.
Mayor Fredericks opened the hearing to the applicants.
Architect Jim Malott, representing Jennifer and Samuel Dibble, acknowledged that change was
difficult and that this was a neighborhood in the midst of change. He said that all the homes
started out at 990 square feet, and that over 70% of them had been remodeled with some sort of
addition.
Malott said that if the Council insisted on a single story for these homes, it would use up the
usuable space, leaving a 10-foot strip of land around each building. He said that a second story, if
designed properly, would result in greater land area for everyone.
Mr. Malott noted that his clients had sought no variances in their application and that other
remodels would certainly require variances if they were built today. He said that he had received
47 letters in support of the project.
Malott said that the Fire Code regulations had been adopted since the application was submitted,
and he described a new landscaping plan.
Town Council Minutes #.x.y -2009 October- 21, 2009 Page 4
Mr. Malott asked the Council to uphold the DRB's unanimous decision and noted their findings
that the overall house design was compatible with the neighborhood, had a low slope roof, and
other design features that broke up the "massing." He said the Board had properly considered all
of the issues described by the neighbors.
Applicant Jennifer Dibble addressed the Council. She said that they had met with all the
neighbors and had incorporated every single change required by the Design Review Board. She
said that she did not favor a single master suite on the second story because it was important to
her, for reasons of safety and personal preference, to sleep on the same level as her children. Mrs.
Dibble asked the Council to allow her family to move forward with their project.
Council had some questions of the applicants which were answered by Mr. Mallot.
Councilmember Slavitz asked about square footage of the rooms on the second story (450 square
feet and a slightly larger master suite), and the distances from the street of the current house and
proposed remodel.
Councilmember Collins asked about wall heights (eight feet); Councilmember Gram asked for
measurements from the middle of the room (eight feet to 10 feet, six inches).
Mayor Fredericks opened the appeal to the public. A number of people spoke, including:
• Dana Thor, Juno Road, said that in 20 years she had never seen such discourse and
dissension over a project; that she and her husband had remodeled their home with the
needs and character of the neighborhood in mind; that the homes all had flat back yards
that adjoined each over and that the neighbors all respected the privacy of those yards.
She said that while the Dibble's plans were attractive, they would impact the privacy of
the surrounding neighbors.
• William Melbostad, 17-year resident, said that the conflict would affect the property
values of the neighborhood;
• Karen Halsey, Juno Road, asked the Council to reject this plan and require the applicants
to work with the neighbors and respect the privacy of the neighbors;
• Danny Gallagher, Juno Road, said that the Dibbles had listened well and had scaled back
their second story which was nine feet lower than what was allowed in the neighborhood;
said the project was a good addition to the neighborhood;
• Vincent Pannepacker, Mercury Avenue, 17-year resident, said that the neighborhood was
comprised of great people and that he understood the frustration of the parties; he said
that he rebuilt his home in 2000 and that some of his neighbors thought his project was
on-going; said that this project was causing a disruption and had the contention was
having a negative impact; suggested that there was a reason for the Town's guidelines and
recommended a single story home; he said that the story poles "told the story" of the
impacts on privacy of the surrounding neighbors and that he had built a great one-story
home when he remodeled (adding that he never even considered a second story for the
Town Council Minutes #xx -2009 October 21, 2009 Page 5
reasons stated above); finally, he stated that the scale was disproportionate to the lot and
would "stick out"; he recommended that not only this project, but future projects, be kept
to scale to avoid the neighborhood turning into "Strawberry Point."
• Marty Andrews, Apollo Drive, said that he had done a one-story remodel and still had
plenty of yard space left;
• Sharon Sand, Mercury Avenue, found fault with the effective of the proposed landscaping
plan which included deciduous trees;
• Rick Bracich, Mercury Avenue, said that he opposed the plan because the applicants did
not work with the neighbors or make reasonable compromises; he said that more
accommodation should be given to the immediate neighbors and that he had kept his
neighbors in mind during his own remodel; that the second story was too big and not in
character with the neighborhood; cited a DRB comment that it was top heavy and
massive; said that some variances were good compromises, depending on the lot.
• Richard McElreath, 4 Apollo Road, said that he had tried to remain neutral but was
concerned about the neighborhood discord; that he planned a 2300 square foot remodel
with a sizeable backyard and had received a variance to do so;
• Kate McInerney, Mercury Avenue, 10 year resident and real estate agent, said that she
had been on both sides of the issue; noted that property owners did have rights; but that
the lot in question was on a curve which made it problematic; said that a second-story in
that location would have a greater visual impact, so that the site was really an issue.
Council asked Design Review Boardmember Michael Tollini for his comments. In particular,
Councilmember Slavitz asked him to discuss the Board's discussions regarding the project's
impact on the privacy of the Boris property, and any discussion regarding plantings.
Mr. Tollini said that the Board's deliberations were in the record. He said that privacy was
the primary focus of the Board, and the focal point was placement of the windows. He said
that the back (bay) windows did not really have a view of the [Boris'] back yard and the other
windows were pushed to the front of the house and the side yard and the [neighbor's] tomato
plants. He said the same thing occurred on the eastern side of the house; and he noted that the
roof terrace was also removed.
Mr. Tollini said that while there was extensive use of landscaping in the plans, the Board did
not discuss or make any conclusive findings regarding the screening impacts of landscaping.
He said that vegetation was transient but a building was not.
Councilmember Gram asked for comment on the impact the McLeods, who lived across the
street from the project.
Boardmember Tollini said that the Board had received a letter regarding the appellant's view
of Ring Mountain being blocked. Tollini said that he walked the curb down to that location
and found that the view from the appellant's front yard and garage was affected, but he said
that it did not "stick out" in his mind nor was it deliberated at length by the Board.
Town Council Minutes #xx -2009 October- 21, 2009 Page 6
Mayor Fredericks asked if it was his sense that the appellants could see that view from their
livingroom. Mr. Tollini said that he could not recall.
Mayor Fredericks returned the discussion to the public hearing.
• Ed Thor, Juno Road, said that he shared a fence with the appellant's back yard and
that they did see Ring Mountain; he said that he had "put money" into his remodel
project in order to keep his view of Ring Mountain and that the appellant's view
should be taken into consideration.
• Matt Richter, Apollo Road, said that he was an architect and had rebuilt his home to
2300 square feet with four bedrooms and three baths and did not block any views; he
added that if second stories could be done sensibly they can be appealing in this
neighborhood but that in not the case in this application; he suggested that on the
"inner lots," any second stories be limited to 500 square feet; he recommended that
the project be sent back for a lower square footage on the second story.
Councilmember Collins asked Mr. Richter the size of his lot; he said it was 7200 square feet.
• Kevin Tinto, Mercury Avenue, said that he too was going through the Design Review
process and had received approval of a one-story remodel; he said that the Dibbles
were nice people and that he hoped they got the home they want; however, he said
that the neighborhood was comprised of "average" people and that they had worked
hard to keep it a "happy, friendly place;" he asked the Council to keep the beauty of
the neighborhood while at the same time improving it.
During the appellant's rebuttal, Mr. O'Neal said that vegetation could not be relied upon for
privacy and that the setbacks were greater in other examples of two-story remodels in the
neighborhood. He asked that the Council reduce the size of the home or move it further away
from the neighbors for more privacy.
Mr. O'Neal also said he spoke for Rod & Nancy McLeod, who spent a lot of time "hanging out"
in their front yard. Mayor Fredericks asked if the McLeod's could see Ring Mountain from their
living room. Mr. O'Neal said that they could.
In his rebuttal, Mr. Malott said that Ring Mountain was in the other direction. The Mayor replied
that she could see it, or some mountain, from the McLeod's front yard.
Mayor Fredericks closed the public hearing.
Vice Mayor Berger stated that he understood the neighbors' concerns. At the same time, he said
that the Design Review Board did a great job in reviewing the application. He said that there was
no prohibition of second stories in the Town's guidelines, so the question for him was how well
it had been designed.
Town Council Minutes #xx -2009 October 21, 2009 page 7
In this application, the Vice Mayor said that the question of mass and bulk was a "close call". He
said the design was heavily articulated and the peak of the roof was handled well.
With regard to the issue of privacy, Berger said that the views from the children's room on the
second story did not seem to present a problem, but that the master bedroom was focused and
looked down onto the neighbors' yards.
The Vice Mayor said that he had drawn a sketch in which the design was turned and the master
bedroom was "flipped around" to give the Dibbles the same square footage but would allow for
more light and air. The design included a hip roof at the rear. Berger said that theses slight
changes would include the same square footage on the second story, as well.
The Vice Mayor said that Design Review Board had adequately adjudicated the issues and he
would vote to partially uphold the appeal, with these modest changes, to solve the privacy
problems that remained for the neighbors.
Councilmember Slavitz said that it was a great idea to move the closet and bathrooms to the back
of the second story, but that in his mind, the house still looked "massive" from the front and
would impact privacy on both sides. He suggested removing the second bedroom from the
second story and sliding it forward.
Slavitz agreed that` the Council could not legislate against second story additions; however, he
said that this house was too big for a small lot and too close to the neighbors.
Councilmember Collins concurred with the Vice Mayor's comments and agreed that the Design
Review Board had done a good job. He said that Councilmember Slavitz' suggested changes
would result in a de facto denial of the application.
Councilmember Gram said that he had seen a number of applications in his 12 years on the
Council. He said that there was no policy against second story additions and that it was possible
to do them properly. He said that the needs of families had changed over time, and that the
Belveron neighborhood was changing and the homes were being upgraded. He said that the job
of the Council was to review each application individually.
Gram said that while he liked the second story, the house in general seemed too bulky and that it
represented too much of an invasion of privacy for the neighbors. Gram said that the Vice
Mayor's ideas would result in a much prettier house. He said that Mrs. Dibble wanted to have her
bedroom on the same level with her children and should be allowed to do so, and that
Councilmember Slavitz' changes would eliminate two of the bedrooms on the second story.
Mayor Fredericks said that she was a "policy person." She agreed that second stories are often
appropriate and could be done appropriately.
Town Council Minutes #xx -2009 October 21, 2009 Page 8
The Mayor said that [FAR] maximums were guidelines and that variances could be neutral; she
said that trade-offs between variances and setbacks should be evaluated on a lot-by-lot basis.
Mayor Fredericks said she agreed with Councilmember Slavitz that this lot was uniquely situated
and higher in elevation than surrounding lots which made the proposed structure seem to loom
over the surrounding houses. The Mayor said that this second story affected so many neighbors
that it warranted a second look. She said that it would be worth considering bringing the two
bedrooms down to the first floor.
Vice Mayor Berger said that there were two ways to go: to rotate the house or move one or both
bedrooms downstairs.
He said that he had seen the DRB reject requests for variances to reduce the bulk or mass of a
structure but in this instance, the DRB had accepted the bulk but might ask for a hip roof and
rotation.
Councilmember Gram suggested giving the Dibble family and their architect a choice of re-
design.
Town Attorney Danforth attempted to clarify Council's direction and asked whether the
applicants were being asked to reduce the square footage, shift the windows, or other specific
requests.
Councilmember Gram said that the application should be redesigned to incorporate the
comments and concerns of the neighbors.
Vice Mayor Berger said that foremost of the issues was privacy. Gram agreed, stating that the
mass of the structure was not an issue as long as the privacy issues were addressed.
In response to some comments about the Ring Mountain view blockage, Councilmember Slavitz
commented that there was nothing in the Town's guidelines that said a view from a garage was a
"protected" view. However, Slavitz said it would be desirable to reduce the mass of the structure.
Councilmember Collins said that if the mass could be reduced somewhat, he would be in favor of
approval, as long as the other admonitions of the Council regarding privacy were addressed, and
that it should be a "simple" redesign.
Mayor Fredericks concurred that the major concern was privacy which might be taken care of by
rotating the structure. She said that the concern regarding the square footage of the structure and
its mass, especially the second story, might be helped with a roof design or by moving bedrooms
downstairs.
Town Council Minutes #.x -2009 October 21, 2009 Page 9
MOTION: To remand the application to the Design Review Board for further review based
on the Council's comments.
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
Councilmember Gram left the meeting at the conclusion of the appeal hearing.
ACTION ITEMS - continued at 11:15 p.m.
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)
Mayor Fredericks re-opened the public comment portion.
Joe Nation, State Assemblyman from 2000-2006, co-author of AB 32, said he now taught public
policy at Stanford University. Mr. Nation said that he was also representing PG&E.
Mr. Nation said that the Marin Clean Energy initiative "missed the mark" in its efforts and he
claimed that the adoption of the Community Choice Aggregation program would actually
increase greenhouse gas emissions, not guarantee rate pricing, and represented a long-term risk to
participating public agency general funds.
Mr. Nation presented a series of slides to illustrate his points.
Council had a number of questions for Mr. Nation.
Mayor Fredericks asked Mr. Nation what the percentage of renewable energy sources PG&E
would have if it took out hydroelectric and nuclear power. Mr. Nation said that in 2010, it would
reach 15%.
Vice Mayor Berger asked Mr. Nation whether PG&E promised lower C02 emissions as part of
its program. Mr. Nation said that the focus needed to be on emissions rather than renewable
energy sources, and that he would chose nuclear power over natural gas or other sources. He said
that he thought the Marin Energy Authority was grossly overstating its estimates of renewable
sources it could offer and its estimates of emission reductions.
Councilmember Slavitz said that the data presented showed that PG&E would not "get us" to the
state-mandated levels of emission reductions; he said that PG&E would only be able to get a
third of the way there. He asked Mr. Nation to comment on this.
Mr. Nation suggested that Marin County get the SMART train up and running because 60% of
the emissions were caused by transportations; other sources being dairies that produce methane
gas, and other things. He said that PG&E would "do its fair share."
Town Council Minutes #xx -2009 October 21, 2009 Page 10
Slavitz asked Nation who would "lead the charge" in emissions reductions and said that there
were not a lot of options other than the opportunities and options being put forth by Marin Clean
Energy.
Nation agreed that there was no single solution. He said that he would move up the cap and trade
legislation and attach a cost to emissions. He said that PG&E would make the 2020 target for
emission reduction.
Vice Mayor Berger questioned Mr. Nation's assertion that Marin Clean Energy was increasing
emissions. Mr. Nation said that since the MCE proposal only had 25% renewables in its
portfolio, 75% would have to be "brown" emission-causing sources like coal.
Councilmember Collins addressed the question of price guarantee. He said that the price to be set
by MEA on the February 15 contract date would be less than PG&E pricing.
Mr. Nation said that PG&E would beat the MEA price "no matter what."
Town Manager Curran asked Mr. Nation whether underbidding the MEA created a scenario that
no only expected MEA to fail but was meant to engineer its failure.
Councilmember Slavitz said that in the worse case, the energy authority would fail and the
customers could go back to PG&E.
Chris Warner, Chief Counsel for PG&E, said that PG&E's interest was really in keeping its
customers happy, and to inform them and prevent them from incurring harm. He said that he had
lived through the 2000-01 energy crisis and knew what could happen.
Dawn Weisz rebutted some of the PG&E representatives' remarks. She said that MEA was
confident that it could reach its target of 100% renewable energy sources in six years and that it
would eliminate emissions from buildings, as well.
She said that the issue really turned on renewable energy because it would allow Marin County
customers to "unhook" from fossil fuel sources, and that currently half of our emissions came
from the use of natural gas (which was in the PG&E portfolio).
Ms. Weisz said that there was debate over the classification of nuclear energy as "renewable."
She said that it was not certified as a renewable energy source by the PUC.
Finally, Ms. Weisz said that there had been misstatements about the exposure of member
agencies' general funds which had caused several jurisdictions not to join the energy authority.
Weisz said that the joint powers authorities were widely used as a mechanism to protect member
agency exposure. She said that three or four firewalls had been built into the JPA, the operating
Town Council Minutes #xx -2009 October 21, 2009 Page 11
agreement, and the bonds themselves. In addition, she said that there would be firewalls written
into the Shell Energy contract.
Councilmember Slavitz asked Ms. Weisz to comment on a Supervisor's statement that the
member agencies would have to have "skin in the game'' to participate.
Councilmember Collins said that this statement pertained to the short-term capital costs to fund
the start-up and that the County would have to go back to member agencies for more funding at
this juncture. However, Collins noted that any additional costs would have to be approved by the
full Council, under the JPA.
Mayor asked whether there might be any further risks beyond the start-up costs. Ms. Weisz said
this would be limited to the start-up phase.
Vice Mayor Berger asked about a statement made earlier by a member of the public that Royal
Dutch Shell was getting out of the renewable energy market. .
Ms. Weisz said that the contract under consideration by the MEA was with Shell Energy North
America, a subsidiary of Royal Dutch Shell. She said that she would follow up on this question.
Councilmember Slavitz asked how the MEA contract, which was for a period of five years,
would address the question of rate competition with PG&E.
Ms. Weisz said that PG&E had to receive rate approval through the CUP process, however, she
posed the question of why they would wait to lower their rates. She said that MEA would lock in
rates for one year and that there were various other contract negotiations taking place which she
could not disclose.
Superivsor McGlashan said that there were options such as a five-year rate with no escalator, or a
one-year rate with an escalator, but agreed that these issues were being negotiated. He said that
MEA could use its operating margin to subsidize rates, as another option. He agreed that the
worse case scenario would be that the customers would chose to opt out.
Vice Mayor Berger asked whether some renewable energy sources were carbon emitters.
McGlashan said that some are, for instance, the methane digesters were not zero carbon emitters.
Councilmember Slavitz asked what would happen if after one year into the contract, the Town
wanted to withdraw from the MEA. McGlashan said that while the Town could withdraw, it
could not withdraw its resident customers.
McGlashan also said that the statement about hitting the agencies' general funds were erroneous.
He said that with the $90 million in estimated rate revenue, the MEA could indeed finance
renewable energy.
Town Council Minutes #xa -2009 October 21, 2009 Page 12
Mayor Fredericks asked if there was additional public comment.
Basha Crane, representing Marin United Taxpayers, said that cities and counties have "enough
on their plates" without joining the MEA. She said that her group agreed with an IJ editorial that
questioned the wisdom of spending taxpayer money on this initiative during the current
economic situation. She said that MEA would become a new public agency that would require
funding and suggested that funds could be better spent on affordable housing, the SMART train,
etc. She said it would become a "bottomless pit."
Ms. Crane suggested that the Council ask the San Joaquin Energy Authority, and the cities of
Berkeley and Oakland, why they had not voted to form a CCA.
Ms. Crane also raised the specter of windmills on the ridgelines of Marin County.
Ms. Crane said that PG&E would still be the distributor of energy and that MEA would have to
use its lines to distribute electricity.
Juliette Anthony, Californians for Renewable Energy, said that the federal government was
offering 30% discounts to utilities for the first time to get into the renewable energy market. She
said that when MCE first was contemplated, they were way ahead of the curve but that new
market conditions created a more competitive environment.
Ms. Anthony said `it was the Wall Street Journal that had reported that Royal Dutch Shell was
getting out of that market.
David Barker, Lagoon View Drive, said he had been a management consultant in the energy
industry (but not for PG&E) for 3 5 years. He said that this was a very important decision facing
the Town Council and that as a concerned resident, he was skeptical about several things. In the
interest of time, he handed out a list of questions (attached) that he felt were important to have
answers to.
Another member of the public asked about the "opt out" option and asked when the public could
further comment on the contract.
Mayor Fredericks said that there would be additional public hearings on the contract itself prior
to the February 2010 deadline. She said that the Council was not being asked to take any action
tonight on the contract. She also said that the Marin Energy Authority board meetings were open
to the public, who are welcome to attend.
Town Council Minutes #xx -2009 October 21, 2009 Page 13
ACTION ITEMS
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.
MOTION: To continue without discussion to the October 26 special meeting.
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
ABSENT: Gram
PUBLIC HEARINGS
2. 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
MOTION: To continue without discussion until November 4, 2009.
Moved: Berger, seconded by Slavitz
Vote: AYES: Unanimous
ABSENT: Gram
TOWN COUNCIL REPORTS
TOWN MANAGER'S REPORT
WEEKLY DIGESTS
• Town Council Weekly Digest - October 9, 2009
• Town Council Weekly Digest - October 16, 2009
Town Council Minutes #xx -2009 October 21, 2009 Page 14
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor
Fredericks adjourned the meeting at 12:47 a.m. on Thursday, October 22, 2009.
ALICE FREDERICKS, MAYOR
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Town Council Minutes #,r-x -2009 October 21, 2009 Page 15
cc_ z
TOWN COUNCIL
MINUTES
CALL TO ORDER
Mayor Fr ricks called a ial meeting of the Tiburon Town Council to order at 6:35 p.m.
on Mo ay, October 26, 2009, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon,
Califo ia.
ROLL CALL
PRESENT: COUNCILMEMBERS: Berger, Collins, Fredericks, Gram, Slavitz
PRESENT: EX OFFICIO: Town Manager Curran, Town Attorney Danforth,
Director of Community Development Anderson
Prior to the regular meeting, the Council met in closed session, beginning at 6:00 p.m., to discuss
the following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
(Section 54956.9(a))
Martha Company v. Town of Tiburon
ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY
Mayor Fredericks said that there was no action to report from closed session.
ORAL COMMUNICATIONS
Peter Hunt, 607 Ridge Road, 13-year resident, said he would like to address the Council on the
subject of the Martha Property.
Mayor Fredericks told Mr. Hunt that the item was on the agenda and asked him if he would mind
waiting until the report had been given. He agreed.
There were no other oral communications.
Town Council Minutes #xx -2009 October 26, 2009 Page 1
ACTION ITEMS
1. 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)
Continued without discussion from the October 21, 2009 Town Council meeting
Councilmember Gram gave the subcommittee's report. He said that since the last Council
meeting, there had been numerous meetings with the owners of the Martha Property and the
County, and some members of the Last Chance Committee. Gram said that the subcommittee had
hoped to have the MOU ready for the last council meeting but that the lawyers had lengthened
the process through their review.
Gram said that tonight the subcommittee would recommend that the Council approve the MOU
and the form of the Development Agreement, and recommend to the County that it approve the
project as set forth in the Development Agreement, approve the Development Agreement, and
agree to sign it.
Gram reiterated that the County is processing an existing 43-unit application as a result of a
Federal Court judgment. He said that the County is a party to the lawsuit, brought by the Martha
Property owners. He said the Town had tried to appear and make its thoughts known, but it was
not a party to the lawsuit (or subsequent judgment). He said that if the MOU and form of
Development Agreement were approved, they would represent a recommendation to the County.
He said that the reason the subcommittee had been meeting with the County was to make sure the
County understood the substance of what the Town recommended, and that the Town would be
willing to move forward with the project as presented tonight.
Gram noted that the project was still subject to the EIR process. He said that the Development
Agreement cannot be entered into in final form and become binding until the EIR is certified by
the County. He said it remained unclear when a draft EIR would be issued. He said the Federal
Court judgment says that the County shall approve the project before it by February 4, 2010, and
he hoped that the draft EIR would come out in enough time to allow for comment prior to
finalization.
Councilmember Gram said that since the last subcommittee report, there had been some changes
to the proposed MOU, as follows:
• The (32) homes will go through the Town's Design Review process and the homes will
not exceed a 30-foot height limit (except for Lot No. 9 which would be limited to a single
story not to exceed 18 feet (including accessory structures) because it would impact
Town Council Minutes #xx -2009 October 26, 2009 Page 2
views; in addition, the DRB will have the discretion to lower heights on some of the
homes to mitigate view impacts, size and bulk, and other issues under the discretion of
DRB and Town guidelines.
There is no option to purchase and no right of first refusal at this time. Gram said this had
been discussed early on with the owners but that they did not agree to it; he explained that
this was due to the fact that no value had yet been assigned to the land, that in real estate
parlance, "land only has a value when you know what you can do with it." He said that
once a project has been approved, the owners might entertain an option to purchase some
of all of the property which could be accomplished through public or private funding, or a
combination of the two. He said that the owners would probably be amenable to being
paid in cash rather than waiting more years while the project is being developed;
• A $400,000 lump sum payment will be paid to the Town to pay for repairs to Paradise
Drive. Gram said this will be at the beginning of the project, after the initial permit is
applied for, before any trucks are on the road;
• Details regarding height maximums: Gram said that the computations on how to measure
the height had been conceptually agreed upon but needed wording added to the
agreement;
• Meet and confer provision: Gram said that this was a good faith item meant to iron out
any details in the EIR that might come up; he said that he was optimistic that this could
happen and was confident that the owners had been meeting in good faith for the last four
to five months.
Gram also noted that the annexation process was underway through an action brought by many of
the neighbors. He noted that the town was only peripherally involved but had made a pre-
annexation finding and had adopted a negative declaration. He said the neighbors had agreed to
stay the proceeding once agreement had been reached between the Martha Property owners and
the Town, and once the County approves the agreement, they would drop the lawsuit. He said
that until that time, the neighbors had the ability to run their lawsuit parallel with the current
process.
Councilmember Gram asked whether people had had a chance to read the MOU and
Development Agreement, and if they had any questions. One respondent said that it was difficult
because it was in "legalese." Gram concurred, noting that he, too, was a lawyer.
Gram said that the agreement contained not only lots of pages but lots of thought and discussion
that had gone into those pages, and that the issues discussed in the two public meetings were
included in the document. He assured the public than no other agreements had been made other
than the ones included in the public documents.
Town Council Minutes #.x -2009 October 26, 2009 Page 3
He said that the issue of the construction road, for instance, had been addressed and now it was
contemplated that all lots would be accessible from the temporary construction road accessed off
of Paradise Drive. He said that in an attempt to share the "burden" between Paradise Drive and
the other, adjacent neighborhoods, there was a new provision in the agreement that said that
when 12 homes had been built, or after 10 years, the Town will have the discretion to have the
construction road removed, in consultation with the Fire District with regard to any health and
safety issues. Then, at the Town's discretion, the road could be removed and up to five homes
would be built via the streets in the Hillhaven and Old Lyford neighborhoods. He said that he
thought this decision would be made at a public meeting when the time comes.
Councilmember Gram asked if the Council had any questions.
Mayor Fredericks agreed with Gram in that minor details were still being worked out, such as the
concept of measuring height.
Vice Mayor Berger said that one issue that he had raised at the last meeting was the idea of
pushing back the landscape envelopes of Lot Nos. 18, 19, 21 and 27 that fronted Paradise Drive
so as to preserve the "natural look" of Paradise Drive in that area. He said that while this was not
a "make it or break it" issue, it was a refinement worth looking at. He said it would be different if
the lots were accessed off of Paradise Drive, so as to require landscaping for the driveways, etc.,
but he said that the lots would not be accessed off of this road.
Councilmember Slavitz asked whether it would be the Town's intent to use the $400,000 to
make road repairs before or at the end of the construction.
Councilmember Gram said that it would be at the Town's discretion. He said that a survey would
be done of Paradise Drive at the beginning of the project to see what condition it was in. He said
that the Town's street impact fee would also be collected from each home as it was built, further
funding street repairs for damage caused by construction vehicles.
Gram said that the Town's [pavement management] studies showed that about 60-70% of all
street damage is not cause by cars but by heavy vehicles such as garbage trucks, and construction
vehicles.
Councilmember Slavitz asked about the EIR process and what might happen if the negotiations
faltered. Gram said that the "meet and confer" provision had been written into the agreement for
this purpose. He also pointed out that either party could walk away from the agreement at any
time but said that he did not think this would happen.
Councilmember Collins noted that the Town was not a signer, nor a beneficiary of, the
Development Agreement. He asked how the Town could be bound by its provisions.
Town Attorney Danforth said that after the Town annexes the property, state law says that the
Town would be bound by the agreement for eight years, unless the Town agrees to a longer
Town Council Minutes #xx -2009 October 26, 2009 Page 4
period, up to a maximum of 15 years. She said that the MOU includes provisions that the Town
will wait to annex until the earlier of the filing of the first Final Map, or five years. The Town
would not inherit any obligations under the agreement until actual annexation, according to
Danforth.
In response to a question from Councilmember Collins, Danforth said that the Town would
inherit the same protections as the County, including the provisions for indemnity. She pointed
out a section near the end of the agreement that says, after annexation "County means Town"
except where the context means otherwise.
Vice Mayor Berger asked if that included the provisions regarding acceptance of open space
offered for public dedication. Town Manager Curran said, no, that it specifically said otherwise
in that provision. She said there were several instances where that distinction was made (between
the County and the Town).
Mayor Fredericks said that she noticed several people in the audience who were not in attendance
at the first two hearings; she reviewed some of the provisions of the stipulated judgment and
what it meant; she said that it was hoped that the County would approve a 43-lot development
that would be acceptable to the Town and its residents, but that the uncertainty of this outcome
had led the Council and its subcommittee to work to preserve the ridgeline and views from the
ridge and to develop a spread of houses that we could "live with."
Mayor Fredericks opened the public hearing.
Peter Hunt, who said that he had been quite ill for some time and could not attend
previous Council meetings, said that he had strong feelings about the proposed
development. He said that he was concerned about the disturbance of peace and quiet on
Ridge Road by heavy trucks, as well as the safety of children and grandchildren running
out into the street. He recommended that the Council disclose the name and ownership
interests of each member of the Reed family, the name of the lead negotiator for the
family, and their attorney; he suggested that the Town run a Dunn & Bradstreet report on
the family as this is very common business practice.
• David Barker, Lagoon View Drive, asked about language in the agreement pertaining to
health and safety; said the MOU provided good coverage but questioned Section C-3 on
page 2 of the resolution going to the County of Marin. [Town Attorney Danforth
explained that it was a "precondition" and that if the County does not find that the 32-lot
plan is equal or better than the 43-lot plan, it cannot approve it. She said that the
stipulated judgment allows the County to approve less than 43 lots if there is a basis in
public health and safety. So, if such an issue arises with the 43-lot project, then the
County does not have to approve it, either. She explained that the "heat is off the County"
to approve either one of these and presumably at that point, the parties would have to go
back to the drawing board. The bottom line of the language in the resolution presupposes
Town Council Minutes #xx -2009 October 26, 2009 Page 5
that there is no health and safety problem with the 32-unit project, according to the Town
Attorney.] Barker said that it made no common sense but he would accept the
explanation.
• Barker also asked about Item 5-4(b)ii on page 24 of the Development Agreement
concerning traffic mitigations. He said the agreement did not define whether they were
necessary or who defines what is necessary. He said there had been no public discussion
of whether specific mitigations were appropriate, and he recommended that a better
solution would include language that the Town would specify what should be done and
paid for. [Town Manager Curran said that he made a good point and, as a practical matter,
any construction in the Town's right-of-way would require an encroachment permit,
thereby placing the Town "in the driver's seat" with regard to improvements, their
location, etc. She said that the gist of the provision was that Martha had agreed to pay for
these mitigations.]
• Finally, Mr. Barker recommended that the spelling of Latin phrases in the agreement be
checked.
Councilmember Slavitz asked for clarification of the off-site traffic mitigation measures. He
asked whether specific ones could be inserted after the EIR is adopted. Town Attorney Danforth
said yes, they could be.
• Bruce Portner, who said he was acting as an agent for the Bornstein property on Spanish
Trail, said that a potential buyer was "nervous" about the fate of the property; he said that
many agents and owners were in this position and wanted to know, one way or another,
what the outcome of this development would be. [Mayor Fredericks said to tell them that
"we're trying to get to certainty;" Vice Mayor Berger said that the key fact to note was
that for the first 10 years, or until 12 houses were built, construction traffic would be
directed through Paradise Drive.]
Bob McDermott, Ridge Road, said he bought his house 25 years ago and had hoped to
retire in peace and quiet. He had a list of questions and concerns, including traffic impacts
from new construction on top of a series of remodel projects in the area, the instability of
the soil on the property; the impact of construction traffic from Ridge Road (he suggested
another solution, that is, a temporary construction road off of Lyford Drive through the
Old St. Hilary open space, for certain lots); said that construction traffic through any of
the neighborhoods was problematic; said there was no discussion of how utilities would
get to the property; [Mayor Fredericks said that individual property owners would grant
utility easements and that the utilities would decide how they were placed; Director
Anderson said that utilities were shown on the drawings filed by Martha with the
County]; questioned what "non-residential" uses meant in the agreement;
[Councilmember Gram said that meant if certain lots were dedicated to open space]; Mr.
McDermott asked when they would know about this. [Mayor Fredericks replied, "when
Town Council Minutes #x -2009 October 26, 2009 Page 6
someone comes in with a check"]; [Vice Mayor Berger added that there are people
interested in buying those lots (Nos. 9 through 17) and that it was not outside the realm of
possibility.]
Mr. McDermott said that with regard to environmental impacts of the project, stated
"we are the environment" and would be affected for 10 years and even more if the
infrastructure was laid for the homes and then the lots took more time to sell; he
suggested an alternative be written into the agreement that would make the 10 years a
"floating" timeframe whereby no construction would begin until a certain number of
lots were sold, for instance 25-30% (six houses), and to delay the start of construction
until that time.
• Mr. McDermott said he agreed with Mr. Barker's concerns about what constituted
construction traffic and who would monitor it. He said the Town should do so and be
able to impose fines, etc. for violations. He said that all traffic should be controlled,
from bulldozers, to pick up trucks and vans.
Barry Wilson, affected homeowner and co-president of Lyford's Cove/Old Tiburon
Homeowner's Association, complimented the Council subcommittee for an "awful lot
of good work" and evenhandedness in its negotiations. He had several questions: 1)
could the $400,000 be used for sidewalks or other infrastructure improvements in the
area; 2) what had the Martha annexation lawsuit parties agreed to? [Councilmember
Gram said there were willing to "stay" their action while this agreement process is
underway but that they are not bound by the Town's actions]; 3) would the temporary
construction road serve all the lots, except Lot No. I? [Gram said it would serve all
lots, including Lot No. I]; further, even if some of the lots were taken into
conservatorship (open space), he asked whether the construction road would be built
and whether Ridge Road would carry some of the traffic [Gram said yes]; would the
utilities be underground [Gram, yes]; and would it be possible to preserve a trail that
he often walked on the perimeter of the property [Gram said, "we are working on it."]
Gram added that he thought that the preservation of Lot Nos. 1 through 8 would be desirable but
said that other residents thought that preserving the lots on the "nose" of the peninsula would be
better (Lot Nos. 9-17). He said that either one would be a great way to eliminate a large number
of homes and preserve the open space. He said that if the money was there, then there would be
the "luxury" of making that decision.
• Wilson asked whether the construction road would still be built [to construct homes
on Lot Nos. 1-8]. Gram replied that the public would rather preserve Lot Nos. 9-17.
• George Landau thanked the Council for "getting us to this point;" said that the trails
were more than a means of exercise for him and represented a spiritual connection to
the land. He encouraged to subcommittee to keep the trails connected in the
Town Council Minutes #xx -2009 October 26, 2009 Page 7
agreement and said that a photo montage would help. Landau said that he and others
had worked very hard to purchase and preserve open space through the purchase of
the Old St. Hilary's property.
Slavitz asked for clarification regarding the temporary construction road, if Lot Nos. 9-17
were not built, would the road still be built, and whether the language of the MOU could be
modified.
Town Attorney Danforth said that the development agreement language could be changed,
depending on which lots might be purchased in future.
Town Manager Curran added that there was language in the development agreement that
spoke to this issue, specifically that if Lot Nos. 9-17 were not built, it would eliminate the
requirement to build a construction road for reasons previously discussed by Councilmember
Gram.
Councilmember Gram said that he would not have a problem going back to negotiate new
terms pertaining to the road, but added that he did not know how the owners would respond.
Vice Mayor Berger said that in previous meetings, he had noted three separate scenarios that
might be considered for purchase: the upper lots (Nos. 1 through 8), Lot Nos. 9 through 17,
and the idea of buying up the bigger lots from both clusters and moving the development
back further from the ridge. He said that a photo montage would help illustrate this point and
sort out which lots were most desirable to preserve as open space.
• Victor Wong, 1808 Lagoon View Drive, thanked the Council subcommittee for its
work but wondered whether the committee would explore the idea of creating greater
economic incentive through the agreement for the [Martha Property] owners to build
fewer lots by increasing the square footage of homes sizes on other lots. He said this
would alleviate some of the fundraising burden.[Mayor Fredericks said that the
smaller lots had been created to pay attention to the character of the surrounding
neighborhoods and that any increase might meet with opposition from the neighbors;
Vice Mayor Berger said that this had, in effect, already been done in the 32 versus 43-
lot plan.] Mr. Wong said that this would represent a compromise in his mind which
would result in fewer, but larger, homes. [Town Attorney Danforth said that the
parties could always agree to an amendment of the agreement, in response to his
question.]
• Wong asked whether the Town was prepared to "police" the construction activity and
whether an additional economic "bite" should be added to the developer in the
agreement;
• Wong made a recommendation to limit the impacts of construction, that is, to add
language to the agreement that would limit how many homes (two, as an example) in
all areas that could be actively under construction at any given time.
Town Council Minutes #xx -2009 October 26, 2009 Page 8
• Jerry Riessen, Ridge Road, raised several issues: a) shouldn't the EIR be compared to
Tiburon's General Plan and not just the County's, given the time and effort spent by
townsfolk to amend the General Plan with the Martha Property in mind; b) does
anything in the agreements bind the Town to the Federal Court judgment or
stipulation? [Town Attorney Danforth said she did not believe so and would not agree
to include any such language.] Riessen asked if language affirming this could be
added to the agreement and not just in the recitals; Danforth said that the recitals was
the appropriate place in the agreement to discuss mutual understandings between the
parties; c) Riessen said that some of the landscape stakes seemed to have been
misplaced and asked if they were going to be replaced or fixed to match the published
map/plan; d) the February 2010 was troubling, said Riessen, and he asked if that
"club" could be removed by asking the owners to waive that deadline in the spirit of
signing the MOU; e) he hoped that Tiburon had the right to look at more than just
health and safety issues in the EIR; [Town Attorney Danforth referred again to
Section 2 of the Development Agreement - she said that the County had to accept a
mutually acceptable alternative and that if changes were made that were different than
what is stated in the draft Development Agreement, they would have to be acceptable
to the Town.] Riessen asked if this meant the owners could walk away from issues
other than those related to health and safety. Danforth concurred.
Landscaping - Riessen continued to lobby for language in the agreement to regulate
landscaping, stating that if the object was to protect views by limiting house height,
something should be written into the agreement regarding landscaping to prevent trees
that could grow to a height of 50 feet, for example, to be planted. [Vice Mayor Berger
said that all landscape plans would be presented to the DRB for review and that there
were already guidelines in place that precluded planting of certain species, such as
Monterey Pine and redwood trees, for example.]
Town Attorney Danforth added that the Tiburon Tree Ordinance would apply to the property
explicitly, assuming it is annexed, and that the ordinance limits the types of trees that can
planted. In response to a further question, she said that the ordinance is enforced by Town staff.
Mr. Riessen countered that certain trees, such as maple, were not prohibited by the ordinance and
could conceivably grow and block views. He asked, for the very least, to add some sort of
restriction that the views of the Bay will not be obstructed.
Mayor Fredericks said she understood his concerns and posed the question of regulations through
CC&R's. Town Attorney Danforth said that CC&R's could not be regulated by the Town.
Town Manager Curran said that the Town could continue to look into Mr. Riessen's concerns, in
addition to the layers of protection already in place, such as the Tree Ordinance and design
review process.
Vice Mayor Berger concurred that this would be helpful as his concern was not far-fetched.
Town Council Minutes #xx -2009 October 26, 2009 Page 9
Town Attorney Danforth suggested that language to page 17, a subsection of "K," might be
added that would direct the DRB to consider the effect of landscaping on views.
Councilmember Slavitz said he thought Mr. Riessen wanted to go one step further.
Riessen suggested that one specific location be identified from which water views would be
protected, or other, very explicit language. Town Manager Curran said it would be looked into.
• Riessen asked about the ability of the Town to approve alternate access to the Martha
Property. Director Anderson said the Town had written a letter to the County of Marin
asking them to address the issue in the EIR]; Riessen asked about the annexation
process and expressed concern that language in the MOU would tie the hands of the
Town if certain conditions were not met; [Town Attorney Danforth responded that
Section 10, on page 5, provided that if the County adopted something that was not
acceptable to the Town, the MOU would terminate and the Town could proceed with
annexation];
• Riessen expressed concern about timing of annexation and said he thought the tax-
sharing agreement would be signed early in the process with LAFCO [Town Attorney
Danforth said that was not her understanding.]
• John Wellner, Tiburon resident and attorney representing the Last Chance Committee,
said that Mr. Riessen's concerns regarding timing and the February 2010 deadline
were valid and perhaps could be easily fixed in the agreement. He said an example
was the 90-day meet and confer section of the MOU he asked what would happen if
all or part of that period fell after the February deadline; he said that the County might
be in technical violation of the court order and would be under pressure to approve
the application; he said that the recourse would be to ask the Martha Company to
waive the deadline; [Councilmember Gram added that they could be asked to extend
it, as well];
Town Attorney Danforth said that Section 3A already said that Martha waived all rights to
approve any project that would involve the subdivision of more than 32 lots, so that during the
term of the MOU, it had waived its right to pursue the 43-lot alternative and is also obliged to
wait the 90 days.
Mr. Wellner disagreed, stating that it was a "future waiver" if things "go right" and not if the
MOU falls apart.
Councilmember Gram said that he would add this to his list of issues to go back to the
negotiating table.
Town Council Minutes #xa -2009 October 26, 2009 Page 10
• Joanna Kemper, reiterated the importance of many to the preservation of certain trails
through the property [and Mayor Fredericks acknowledged that she understood which
trails they were referring to];
• Peter Hunt, asked again if the Town had run a Dunn & Bradstreet report on the Martha
Company and knew who the ownership percentages of the individuals in the company;
[Mayor Fredericks and staff said that they knew it was a family-owned company and
some members of the family were known to the Town; Town Manager Curran said that
the Town knew that the Martha Company were the owners of record and that was the
party the Town was negotiating with].
Mayor Fredericks closed the public hearing.
Councilmember Gram said that many of the comments were useful but that the Development
Agreement was not the appropriate place to address some of them. However, he said that issues
such as traffic should be under the Town's control, and the Town should pay attention to it.
Councilmember Gram said that he had a list of talking points for his next meeting with the
Reeds, and he thanked the public for helping the committee move this along with its feedback.
He said that "we are 98-99% there," but acknowledged that there are still some issues, such as
the trails, the 90 days in the MOU, and the concern of the neighbors regarding annexation, that
needed to be resolved. He said that he would recommend that the Council approve the MOU and
the form of Development Agreement tonight.
Councilmember Slavitz asked if Gram he could add to his list the issue of which lots [the
development of which] would trigger the construction of the access road. Gram said that was on
his list. Slavitz said he appreciated the efforts of the subcommittee and wished them well.
Vice Mayor Berger asked that the setback issues that he had previously raised be looked into
before signing the MOU.
Councilmember Collins asked that the issue of height of landscaping on the most sensitive lots
be added to Councilmember Gram's list of further talking points.
Mayor Fredericks thanked staff for their hard work, but said that it would have been impossible
without Councilmember Gram's efforts. She said that she was the "greek chorus" on the
subcommittee, but added that she, too, had a list and would compare notes with Councilmember
Gram. She also thanked the public for their input and participation in the process.
Town Council Minutes #xx -2009 October 26, 2009 Page 11
MOTION: To adopt the resolution approving the MOU and authorizing the Town Manager to
complete any final minor negotiations on details in consultation with the
subcommittee, and execute it as appropriate.
Moved: Gram, seconded by Slavitz
Vote: AYES: Unanimous
MOTION: To adopt the resolution urging the Board of Supervisors to take certain actions
with respect to the Easton Point (Martha Company) Development Applications.
Moved: Slavitz, seconded by Collins
Vote: AYES: Unanimous
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor
Fredericks adjourned the meeting at 8:35 p.m.
ALICE FREDERICKS, MAYOR
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Town Council Minutes #xx -2009 October 26, 2009 Page 12
To:
From:
Mayor and Members of the Town Council
Department of Public Works
Town Council Meeting
November 18, 2009
Agenda Item:
c r
Subject: Recommendation to Accept the 2008-09 Streets Improvement
Project, And Authorize The Filing Of The Notice Of Completion For
The Work
Reviewed By:
BACKGROUND
On June 3, 2009, the Council authorized staff to advertise and seek bids for the construction of
the 2008-09 Streets Improvement project. The project was posted and advertised as required by
the State of California's Public Contract Code.
The contract was awarded to Ghilotti Bros, Inc. on July 15, 2009 in the amount of $935,191.
Work consisted of asphalt concrete grinding and resurfacing, slurry sealing, localized base repair,
sidewalk, curb and gutter installation, and traffic striping of the following road segments:
1. Mar West St. from Esperanza St. to Paradise Dr.
2. Cecilia Way from Tiburon Blvd to Cayford Dr.
3. Meadowhill Dr. from Venado to End.
4. Main St
5. Juanita Ln
6. Diviso St
7. Stewart Dr. between Redding and Porto Marino
8. Via Lost Alto from Blackfield to 1300 feet west of Blackfield.
9. Vistazo East St from Vistazo West St. to End of road.
10. Loma Ave
11. Blackfield Dr. bet. Cecilia Ave and Tiburon Blvd.
12. Acela Ct
13. Audrey Ct
14. Berke Ct
15. Cayford Dr. from Cecilia to end
16. Cecilia Way from Rancho Dr. to Leland Way
17. Leland Way
18. Karen Way
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
The repair of the roadway slippage on Centro West Street at Raccoon Lane was added to this
annual resurfacing project.
A total of $960,000 had been budgeted for this project for engineering, construction management
(CM), and construction. The completed work included three change orders for unforeseen items
of work, including the repair work on Centro West Street, in the total amount of $59,228. Based
on the work performed, material installed, and total change orders, the final construction project
cost is $732,875 delivering the construction project under the awarded budget. The field
engineering and CM cost came in with a final cost of approximately $113,000. Remaining funds
from the original budget can be used to supplement the ARRA grant for the Reed Ranch and
Ridge Roads overlay project.
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.
Exhibits: Resolution Accepting the 2008-09 Streets Improvement 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 STREETS IMPROVEMENT PROJECT AND
AUTHORIZING THE FILING OF THE
NOTICE OF COMPLETION FOR THE WORK
WHEREAS, The Town Council budgeted funds in Fiscal Year 2009-2010 to complete
the project;
WHEREAS, Ghilotti Bros, Inc. was awarded the contract on July 15, 2009 to perform
the work;
WHEREAS, The construction of the project was substantially completed under budget
on November 13, 2009; and
WHEREAS, The final construction cost, including payment of total quantities installed
is $732,875.
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 construction of the 2008-09 Streets
Improvement project as complete by Ghilotti Bros, Inc.
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 18th day of
November, 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
To:
From:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Community Development Department
Town Council Meeting
November 18, 2009
Agenda Item: CC
Subject: 1655 Mar West Street/175 Esperanza Street: Approval of a Two-Lot
Subdivision Parcel Map; Diane Ho, Owner and Applicant; Assessor Parcel
No. 059-051-18; File #60402
Reviewed By:
BACKGROUND
The Town has received a parcel map application from Diane Ho that would subdivide a .51-acre
parcel into two separate lots with different street frontages located at 1655 Mar West Street and
175 Esperanza Street. Parcel A would have an area of 10,085 square feet and Parcel B would
have an area of 12,005 square feet. An existing single-family dwelling exists on proposed Parcel
A. while proposed Parcel B is vacant. The property is located within the Lyford Cove/Old
Tiburon Subdivision (Lyford's Hygeia), dating from 1894.
The Planning Commission approved the Tentative Subdivision Map application for this project
on March 23, 2005, and issued a time extension on March 12, 2008.
ANALYSIS
The Town Engineer and Planning Division Staff have reviewed the parcel map and have found it
in conformance with the approved Tentative Map, and State and local subdivision regulations.
Approval of a parcel map is a ministerial action and is exempt from CEQA. There are no offers
of dedication associated with this map, although the pre-existing public path connecting
Esperanza Street to Mar West Street across the property, which was deeded by Ms. Ho to the
Town in the 1980's, will be substantially improved as part of the project in place of assessing
park and recreation in-lieu fees.
RECOMMENDATION
By adopting this Consent Calendar item, the Town Council will be:
1. Adopting the Resolution (Exhibit 1) approving the Parcel Map.
2. Authorizing the Town Manager to execute and record the Subdivision
Improvement Agreement for the path improvements (Exhibit 2).
3. Authorizing staff to record the Declaration of Covenants and Restrictions
(Exhibit 3) for the Subdivision.
4. Authorizing staff to record the Parcel Map (Exhibit 4).
Exhibits: 1. Draft Resolution
2. Subdivision Improvement Agreement
3. Declaration of Covenants & Restrictions
4. Parcel Map
Prepared By: Scott Anderson, Director of Community Development
S: Wministration lTown CouncibStaffReports 12009Wovember 18 draftsWo Parcel Map report draft.doc
RESOLUTION NO. XX-2009
A RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF TIBURON
APPROVING A PARCEL MAP FOR THE CREATION
OF TWO LOTS ON PROPERTY
LOCATED AT 1655 MAR WEST STREET/175 ESPERANZA STREET
ASSESSOR PARCEL NUMBER 059-051-18
RECITALS
A Parcel Map proposing the subdivision of a 0.51-acre parcel into two lots has been
submitted by the property owner, Diane Ho.
The submitted map has been examined by the Town Engineer and returned to the
Town Clerk as required in Title IV, Chapter 14, Section 14.36 of the Tiburon
Municipal Code.
The Town Engineer and Planning Division Staff have determined that the map is in
substantial conformance with the approved Tentative Subdivision Map (Planning
Commission Resolution No. 2005-03, as extended by Resolution No. 2008-04), and
that all required conditions of approval have been met. No public dedications of land
or property rights are being offered or accepted as part of this map.
APPROVAL
NOW, THERFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon does approve the map entitled "Parcel Map, Lands of Diane Ho" (2 sheets),
prepared by Douglas Matteson, Civil Engineer, dated July 2009.
PASSED AND ADOPTED at a regular meeting of the Town Council on
, 2009, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ALICE FREDERICKS, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
S: WministrationI Town CouncillStaff Reports12009Wovember 18 draftslHo Parcel Map Reso, 1655 Mar West Street.doc
EXHIBIT No._____
RECORDING REQUESTED BY:
Town of Tiburon
AND WHEN RECORDED MAIL TO:
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Attention: Director of Community Development
AP # 059-051-18
THIS SPACE FOR RECORDERS USE ONLY
SUBDIVISION IMPROVEMENT AGREEMENT
HO SUBDIVISION
1655 MAR WEST STREET/175 ESPERANZA STREET
TIBURON, MARIN COUNTY, CALIFORNIA
EXHIBIT NO.
I OF 7
SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT, made and entered into this day of , 200_ by
and between Diane Ho (hereinafter "Subdivider"), and the Town of Tiburon, a municipal
corporation of the State of California (hereinafter "Town"):
WITNESSETH:
WHEREAS, Subdivider has presented to the Town for approval a parcel map for the Lands of
Ho and the map has been filed with the Town Clerk for presentation to the Town Council for the
Town for its approval, which map is hereby referred to and incorporated herein; and
WHEREAS, Subdivider, pursuant to Chapter 14 of the Tiburon Municipal Code, has presented
to Town an improvement plan outlining thereon the improvements to be constructed by
Subdivider within the Subdivision (hereinafter "Improvement Plan"); and
WHEREAS, said improvements and any other improvements required by Chapter 14 of the
Tiburon Municipal Code or by this Agreement will not be completed before the filing of the
parcel map of said Subdivision; and
WHEREAS, Chapter 14 of the Tiburon Municipal Code requires Subdivider to enter into an
agreement with Town agreeing to have said improvements and work completed within the time
specified in said agreement.
NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as follows:
1. Subdivider agrees that prior to the expiration of one (1) year from the date hereof it will
construct all improvements outlined and set forth on the Improvement Plan hereinabove
referred to and all other improvements required of it to be constructed by the provisions
of Chapter 14 of the Tiburon Municipal Code, in effect as of the date of this Agreement,
within and for the benefit of the Subdivision. Town may grant extensions of time, in
writing, for completion thereof as shall be reasonably necessary for such completion. The
one-year period provided for herein shall be tolled if construction of said improvements
and/or the issuance of building permits has been prevented by building/development
moratorium(s)-not deemed to include growth control ordinances-imposed by Town or
other governmental entity(s), for the period of such moratorium(s).
Said improvements shall include, but are not necessarily limited to, the following:
Installation of public pedestrian path improvements and signage, and installation of
drainage improvements. Said improvements shall be constructed in accordance with the
improvement plans (4 sheets), prepared by Douglas Matteson, Civil Engineer, said plans
entitled "Site Improvement Plans for a Minor Two Lot Subdivision, 1655 Mar West
Street, Tiburon" dated July 2008 with revisions through February 2009, on file with the
Town of Tiburon Department of Public Works.
2OF7
In addition, said improvements shall be constructed in accordance with the Tiburon
Municipal Code and amendments thereto and in accordance with those specifications
contained in the Code, all as the same exist as of the date of this Agreement. The
foregoing plans are incorporated herein by reference and made a part hereof, with the
following exceptions, additions and modifications:
NONE
Where there is a .conflict between the plans and specifications, the more strict
requirements shall govern.
2. Subdivider hereby warrants that the plans and specifications referred to herein are in
accordance with the tentative map approval for the project dated March 23, 2005 as set
forth in Planning Commission Resolution No. 2005-03. Subdivider further warrants that
said plans and specifications are adequate to accomplish the improvement work covered
by this Agreement in a good workmanlike manner, and in accordance with accepted
construction practices. Should said plans and specifications at any time prior to final
acceptance of improvements referred to herein prove to be inadequate in any respect, then
Subdivider does agree to make such changes as are necessary to accomplish said work in
a good workmanlike manner and in accordance with accepted construction practices.
3. Upon final, completion of all of said work in accordance with this Agreement, the Town
Engineer shall notify Subdivider in writing of his acknowledgement of completion of the
same. Subdivider agrees that for a period of one (1) year from and after the date of
receipt of said written acknowledgement of completion of said work it will maintain all of
the improvements constructed under the provisions of this Agreement, that it will repair
any defects or failures which may appear in said improvements during said one-year
period and that it will further correct the causes of said defects or failures. Provided that
Subdivider has complied with the terms of this Agreement in all respects, Town shall,
upon completion of said one-year period, notify Subdivider in writing of its final
acceptance of said improvements. Neither the written acknowledgement of completion
hereinabove referred to nor any periodic progress inspection or approval shall bind the
Town to accept said improvements or to waive any defect in the same or any breach of
this Agreement. Acceptance of any part or any stage of said improvement work shall not
be final until the written notice of final acceptance of all of the improvements shall have
been delivered to Subdivider as required herein.
4. All inspection services rendered in connection with the work covered by this Agreement
shall be paid for by Subdivider at the actual cost to Town.
5. Should Subdivider fail to construct the improvements within the time specified in
Paragraph 1, including all extension(s), if any, Subdivider shall immediately discontinue
all work under this Agreement. In such event, Subdivider shall either make arrangements
satisfactory to Town for completion of said work, or Town may immediately proceed to
complete the improvements by contract or otherwise and recover the cost thereof from
Subdivider.
3OF7
6. Prior to starting any construction of improvements called for by this Agreement,
Subdivider shall meet the following conditions:
(a) The before described improvement plan and specifications shall be adjusted, if
necessary, to meet:
1. Any changes in the terrain which may occur after the execution of this
Agreement and prior to the commencement of the construction of the
improvements; and
2. Any engineering standards new to the profession and applicable to the
Subdivision. Said plans and specifications shall be subject to the
reasonable written final approval of the Town Engineer.
(b) Upon execution of this Agreement, Subdivider shall post the improvement
securities listed below, as required by § § 66496 and 66499 - 66499. 10, inclusive,
of the California Government Code. The form of security shall be subject to the
approval of the Town Attorney. Any additions, alterations or modifications to this
Agreement or to the plans and specifications referred to herein, including any
extension of time within which the work hereunder may be completed, shall not
release or exonerate any surety or sureties on the required securities. The Town
Engineer shall determine the estimated cost of the improvements and monuments.
1. For faithful performance of this Agreement: 100% (one hundred
percent) of the estimated cost of the improvements.
2. For payment of all contractors, subcontractors, laborers,
materialmen and other persons employed in the performance of this
Agreement: 100% (one hundred percent), of the estimated cost of
the improvements.
3. For payment of the project engineer or surveyor for setting of the
final monuments for the Subdivision: 100% (one hundred percent)
of the estimated cost of setting such monuments.
(c) Subdivider shall pay Town the estimated inspection fees as determined by the
Town Engineer.
7. Upon final completion of all improvements in accordance with this Agreement, the Town
Engineer shall notify Subdivider in writing of his acknowledgement of completion of the
same and Town shall take all steps necessary for the release of any security held by Town,
and shall release such security upon the posting by Subdivider of the security referred to
in Paragraph 8 below.
Upon final completion of all improvements in accordance with this Agreement, the Town
Engineer shall notify Subdivider in writing of his acknowledgement of completion of the
4OF7
same and Subdivider shall then furnish security whether it be cash, bond, or letter of
credit, in accordance with the provisions of California Government Coded Sections
66499-66499.10, in an amount equal to Ten percent (10%) of the cost of the
improvements as security for the maintenance and repair of the improvements for a one-
year period. The form of the security shall be subject to the reasonable approval of the
Town Attorney. Upon the final acceptance of said improvements as referred to in
Paragraph 3, Town immediately shall release such security held.
9. Should Town be required to institute legal action to compel performance of this
Agreement, Subdivider agrees to pay all reasonable attorneys fees, costs of suit, and all
other expenses of litigation incurred by Town in connection therewith.
10. Town shall not be responsible for any of the costs of said improvements or for the
performance or non-performance of the work of construction of said improvements, and
Subdivider shall hold Town free and harmless from any claim or liability resulting from
or arising out of the same.
11. Subdivider shall have sole responsibility for making all arrangements and assuming all
expenses as may be required in connection with the furnishing and installing of utility
service facilities.
12. Subdivider shall not commence work under this Agreement until contractor and any
subcontractors have obtained all insurance required under this paragraph, and such
insurance has been approved by the Town Attorney as to form, amount and carrier. All
requirements shall appear either in the body of the insurance policy or in endorsements
and shall specifically bind the insurance carrier.
(a) Workers' Compensation and Employers' Liability insurance in the statutory
coverage. In signing this Agreement, Subdivider makes the following
certification:
"I am aware of the provisions of Section 3700 of the California Labor
Code which require every employer to be insured against liability for
Workers' Compensation or to undertake self-insurance in accordance with
the provisions of the Code, and I will comply with such provisions before
commencing the performance of the work of this Agreement."
(b) Commercial General Liability Insurance: In an amount not less than two million
dollars ($2,000,000.00) for injuries including, but not limited to, death to any one
person, and including blanket contractual liability, and subject to the same limit
for each person, in an amount not less than one million dollars ($1,000,000.00)
combined single limit per occurrence for bodily injury, personal injury and
property damage.
5OF7
(c) Automobile Liability (Code 1) Insurance: In an amount not less than one million
dollars ($1,000,000.00) combined single limit per accident for bodily injury and
property damage.
(d) It is agreed that the insurance required by Subsections (b) and (c) shall be in an
aggregate amount of not less than two million dollars ($2,000,000.00) and shall be
extended to include as additional insureds the Town of Tiburon, its elective and
appointive boards, officers, agents and employees, with respect to operations
performed by the Subdivider as described herein. Evidence of the insurance
described above shall be provided to Town upon execution of this Agreement and
shall be subject to approval by the Town Attorney as to form, amount and carrier.
The policy of insurance shall also contain a provision indicating that such
insurance shall not be reduced or canceled except upon thirty (30) days written
notice to Town. In addition, the following endorsement shall be made on the
policy of insurance.
"Notwithstanding any other provisions in this policy, the insurance
afforded hereunder to the Town of Tiburon shall be primary as to any
other insurance or reinsurance covering or available to the Town of
Tiburon, and such other insurance or reinsurance shall not be required to
contribute to any liability or loss until and unless the approximate limit of
liability afforded hereunder is exhausted."
13. Subdivider shall indemnify, defend an hold Town harmless from any liability for damage
or claims for damage to persons or real or personal property (including, without
limitation, claims for inverse condemnation) arising or alleged to arise from the
operations of Subdivider or Subdivider's contractors, subcontractors, agents or employees
in connection with the performance of this Agreement. Subdivider's obligation under
this section apply to all claims or actions at law arising from the aforesaid operations,
regardless of whether Town has prepared, supplied or approved of plans and/or
specifications for the Subdivision or regardless of whether the insurance policies required
by this Agreement apply to such damages or claims for damages. For purposes of this
Section, "Town" includes, without limitation, the Town's elective and appointive boards,
commissions, officers, agents and employees.
14. This Agreement applies to, inures to the benefit of, and binds all parties hereto, their
heirs, legatees, devisees, administrators, executors, successors and assigns. Subdivider
reserves the right to transfer the property and the rights and duties under this Agreement
shall pass to said transferee and subsequent transferees, if any, without modification.
15. This Agreement shall be subject to and shall be deemed to incorporate by reference as if
set forth in full herein all applicable provisions of the State Subdivision Map Act sections
66499 through 66499.10 and Chapter 14 of the Tiburon Municipal Code applicable and
in effect as of the date of this Agreement.
6OF7
16. It is agreed that in the event of litigation between the parties relating to this Agreement
the proper venue therefor is the Marin County Superior Court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
SUBDIVIDER:
-Y" Uc - - .ql
Diane Ho
TOWN:
TOWN OF TIBURON
A Municipal Corporation
By:
Margaret A. Curran
Its: Town Manager
Approved as to Form:
Ann R. Danforth
Town Attorney
S.-OanninglStaffFolders lsandersonWiscellaneouslho subdivision improvement agreement 5-1S-08.doc
7OF7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
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On before me, c%-l
Date HArP. InRArt Name and TInA of thP. Offinpr
personally appeared
DIANE CRANE AM
ComrMssion * 1SM13
OLNotary Public - CWonft
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Comm. / 5.20139
Place Notary Seal Above
of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my d of cial seal.
Signature
Sign atu f Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
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Title or Type of Document: solodt ys(m
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Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: 64D Signer's Name:
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❑ Corporate Officer - Title(s):
❑ Partner - ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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❑ Corporate Officer - Title(s):
❑ Partner - ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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02007 National Notary Association- 9350 De Soto Ave., PO. Box 2402 -Chatsworth, CA 91 31 3-2402 - www.NationaiNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827
When Recorded Return To:
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Attention: Director of Community Development
Assessor Parcel No. 059-051-18
DECLARATION AND ESTABLISHMENT OF
PROTECTIVE COVENANTS AND RESTRICTIONS
This Declaration is made with reference to the following considerations:
A. Diane Ho Yuk Wah, also known as Diane Ho, Trustee of The Diane Yuk
Wah Ho Trust, is the owner of the certain real property located in the Town of Tiburon,
County of Marin, State of California, commonly identified as Marin County Assessor's
Parcel No. 059-051-18 and more particularly described as follows:
ALL THAT CERTAIN real property situate in the City of Tiburon,
County of Marin, State of California, described below as follows and
herein referred to as the Property:
PARCEL ONE:
Beginning at a point on the Easterly line of Mar East Street, at the most
Northerly corner of the premises described in the Deed from Frank Afflect
to Luis Bertroli, by Deed dated July 21, 1916 and recorded August 18,
1916 in Book 180 of Deeds at Page 488, Marin County Records; thence
following the Northeasterly line of said premises, South 50° 47' East 185.9
feet to a point on the Westerly line of Esperanza Street; thence following
the Westerly and Southerly lines of Esperanza Street, North 1 ° 51' East
109.75 feet and North 52° 32' West 187.72 feet to the intersection of the
Southerly line of Esperanza Street with the Easterly line of Mar West
Street; thence following the Easterly line of Mar West Street, South 3° 11'
East 78 feet and on a curve to the right whose chord bears South 5° 55'
West, a distance of 26.9 feet to the point of beginning.
PARCEL TWO:
EXHIBIT NO.
A strip of land, 20 feet in width, lying parallel with, adjacent to and
Easterly and Northerly of the following described line:
Beginning at the most Southerly corner of that certain parcel of land
described in Grant Deed recorded July 31, 1986 as Instrument No. 86
40352, Marin County Records; thence running along the Easterly and
Northerly lines of said parcel of land, North 1 ° 51' East 109.75 feet and
North 52° 32' West 187.72 feet to the intersection of the Southerly line of
Esperanza Street with the Easterly line of Mar West Street.
The Northerly line of this described strip of land shall extend to its
intersection with the Easterly line of Mar West Street.
This described strip of land is the portion Westerly and Southerly of the
centerline of Esperanza Street within the limits described.
B. The Town of Tiburon (Town File #60402) has approved the division of
property into two (2) Lots subject to various conditions. One such condition requires that
certain conditions be contained in "Deed Restrictions" affecting the property. The
purpose of this Agreement is to set forth such restrictions as set forth in Tiburon Planning
Commission Resolution 2005-03. This document shall be recorded in conjunction with
the Parcel Map dividing the property into two (2) Lots (Lot A and Lot B), said Parcel
Map being that certain Parcel Map recorded in the official records of the County of Marin
at Book of Maps, Page(s) on , 2008, said
Parcel Map being incorporated herein by this reference.
C. Declarant hereby declares that the property shall be held conveyed,
encumbered, occupied, sold and improved subject to the following limitations and
restrictions, each of which is for the purpose of enhancing and protecting the value and
attractiveness of the property and every part thereof in accordance with the plan for
improvement of the property and the division thereof into two (2) Lots. All of the
limitations and restrictions set forth herein shall constitute covenants, which shall run
2
with the land and shall be binding upon the Declarant and her successors and assigns and
all parties having or acquiring any right, title or interest in or to any part of the property.
1. Use Restriction. The use of each Lot shall be limited to residential use
consisting of one (1) single-family dwelling unit and customary ancillary uses thereto.
2. Building Size Restriction. Any new structure constructed on Lot B shall
not exceed a floor area of 2,200 square feet of gross floor area as that term is defined in
the Tiburon Municipal Code and 500 square feet of gross floor area for garage space.
3. Landscqping on Parcel B. New landscaping on Lot B as depicted on the
Parcel Map shall be limited to plants that are non-invasive and will not spread or invade
the adjoining County of Marin-owned botanical reserve Parcel located on Assessor's
Parcel No. 059-033-02, located on the north and east boundaries of Lot B. For purposes
of this paragraph, non-invasive shall mean plant species that do not spread by natural
growth or reproductive means to adjoining property.
4. On-Site Parking. Each Lot identified on the Parcel Map shall at all times
be served by a minimum of four (4) on-site parking spaces; at least two (2) of which shall
be covered spaces located in the garage serving each respective Lot.
5. Amendments. No part of this Declaration may be amended without the
written consent of the owners of Lot A, Lot B and the Town of Tiburon, which
Amendments shall be recorded in the official records of the County of Marin. Any
Amendment shall be effective upon being so recorded. No Amendment shall affect the
rights of any mortgagee or trustee or beneficiary of a Trust Deed recorded before the
recordation of such Amendment unless the Amendment is approved in writing by such
mortgagee or beneficiary.
3
6. Enforcement. Any owner of Lot A or Lot B identified on the Parcel Map,
or the Town of Tiburon, may bring an action in a court of competent jurisdiction to
enforce the terms of Covenants, Conditions and Restrictions contained in this
Declaration.
7. Protection of Lenders. No Enforcement Order issued to enforce any
covenant, condition or restriction set forth in this Agreement or related thereof shall
impair or affect a lien created by a duly recorded mortgage or Trust Deed prior to the
recordation of such an Order. This Declaration shall not impose any monetary lien upon
the Property or any part thereof.
8. No Waiver. The Failure to enforce any covenant, condition or restriction
set forth in this Declaration shall not constitute a waiver of any right to enforce any such
provision or any other provision of this Declaration.
Signed this day of (r1 l 9 , 2008.
fit, AIVJv
,ae,~ Diane Ho Yuk Wah, also known
as Diane Ho, Trustee of The Diane
Yuk Wah Ho Trust
STATE OF CALIFORNTA,
)
COUNTY OF 1+k! )
q
On 2008, before me, &I , a Notary
Public in a 5d fo ~ the State of California, personally appeared « vt~ jJV
~ - ?IkkI , who proved to me on the basis of satisfactory evidence, to
be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
4
WITNESS my hand and official seal.
[SEAL]
DIANE CRANE IACOPI
Commission # 1551995
Notary Public - California
Marln County
My Comm. Expires Feb 12.2009
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To:
From:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Department of Administrative Services
Town Council Meeting
November 18, 2009
Agenda Item: -1-
Subject: Recommendation that the Town Council declare a Surplus in the Lyford
Cove Utility Undergrounding Assessment District Improvement Fund,
Approve the Method of Disposition of the Surplus, and Approve a Budget
Amendment to Fund the Town's Contribution to the District
Reviewed By:
BACKGROUND
This item is a financial reconciliation of the Lyford Cove Utility Undergrounding Assessment
District, the Town Council's determination that a surplus exists in the District Improvement
Fund, and the recommended disposition of the surplus funds. It is also appropriate for the Town
to fund its agreed-upon contribution to the Lyford Cove UUA in the amount of $50,799.
In March 2005, the Town of Tiburon established the Lyford Cove Utility Undergrounding
Assessment District and authorized the sale of $3,800,000 of limited obligation bonds, and a
second series in the amount of $173,415 to fund the improvements. Construction bids received in
November 2005 were substantially higher than both the Engineer's estimate and funding
available from the March 2005 assessment. In April 2006, the Council approved a supplemental
bond issue of $2,002,561, agreed to fund $50,799 of the District financing, and authorized the
construction contract to Maggioria & Ghilotti. In addition to the above-referenced bond issues,
the District received $373,573 in pre-paid assessment from the first issue and $168,161 from the
second issue.
ANALYSIS
The table on the following page illustrates the financial activities of the Lyford Cove Utility
Undergrounding Assessment District since inception.
TOWN OF TIBURON PAGE 1 OF 4
ASSESSMENTS
Original 2005 Issue $300,000.00
Pre-paid Assessments 3731573.75
2005-1 Issue 173,415.00
2006 Supplemental Issue 2021561.00
Pre-Assessments 168,161.58
Total Assessment Funding $695179711.31
EXPENSES
Engineering
$ 3329714.50
Construction Management
439,257.78
Construction
$411561596.82
Lateral Connections
11500.00
Misc. Construction Costs
27,818.22
Four Additional Street Lights
34,000.00
Bond Counsel
77,680.00
Bond Underwriter
123,000.00
Town Administration Fee
110,000.00
Utilities
560,026.00
Cost of Issuance
24,255.56
Bond Reserve
1201052.62
Capitalized Interest
98,520.92
Misc. Costs
4,377.38
Bond Call - Unclaimed Lateral
45,873.38
Total District Expenses $6,269,173.18
Surplus Funds from Assessments $ 2489538.13
ADDITIONAL DISTRICT FUNDING SOURCES
Comcast Settlement $ 97,500.00.
PG&E Refund 401165.00
SBC Refund 67,532.00
Interest on Investment of funds 413,736.68
Town Contribution to Supplemental 50,799.00
Total Additional Revenues $ 669,732.68
TOTAL SURPLUS FUNDS TO REFUND S 918x270.81
DISPOSITION OF SURPLUS FUNDS
The Town Council has four options for the disposition of the surplus funds which are governed
under Section 10427 the Municipal Improvement Fund Act of 1913 (1913 Act), Division 12 of
the Streets and Highways Code of California. For property owners who paid either the original
assessment and/or the supplemental assessment in cash, their proportionate share must be
returned in cash to the person or persons owning the property for which the assessment was paid.
For assessments that went to bond, the options to return the surplus are:
(a) Transfer of $1,000 to General Fund. An amount equal to $1,000 may be transferred
to the General Fund and used for any legal purpose.
(b) Credit Against the Assessments Without Calling Bonds. The surplus may be applied
as a credit upon the assessment and any supplemental assessments. In this option the
surplus would be used to pay debt service on the bonds for a limited period.
(c) Use for Maintenance. The surplus may be transferred to a special fund and used for
the maintenance of the public improvements that were financed by the assessment district
bonds, and
(d) Redeem Bonds and Reduce Assessments. The surplus may be transferred to the bond
trustee for deposit in the redemption fund and used to call bonds for redemption at the
next available redemption date. This will require a corresponding reduction in the
outstanding assessment and in the subsequent assessment installments levied to the
property in the assessment district.
After discussions with Bond Counsel and the Bond Underwriter, and review of the bond
documents, it is recommended that the Town Council direct the excess improvement funds be
used to redeem a portion of the outstanding bonds. Staff further recommends that the Town also
transfer $1,000 to the General Fund to cover administrative time related to the disposition of the
surplus funds. By selecting redemption of bonds and reducing assessments, this method spreads
the recovery of the surplus to all property owners (current and future) that will be paying for the
cost of the improvements. If the surplus is used to reduce or eliminate assessment payments for
the next year or two, only current property owners will benefit, requiring future property owners
to be obligated with higher payments.
There will be fees related to the bond redemption from the paying agent and district administrator
that will be paid from the declared surplus. As of the writing of this staff report, those fees are
anticipated to be approximately $21,300, of which $16,200 is for the bond call premium (2%).
The anticipated surplus fund closeout analysis is illustrated on the following page.
Lyford Cove Utility Undergrounding Assessment District
Construction Fund Closeout Analysis
Construction Fund Balance as of 11/9/09 $9189270.81
Less: Consultant Fee/Paying Agent (5,100.00)
Less: Cash amount to be refunded - Prepaid Assessments (85,637.67)
Less: Transfer to Town's General Fund (1, 000.00)
Amount available to call bonds ahead of schedule $826,533.14
Less: Bond Call - Lyford Cove UUAD (535,000.00)
Less: Call Premium (2%) (10,700.00)
Less Bond Call - Lyford Cove UUAD Supplemental District (275,000.00)
Less: Call Premium (2%) (5,500.00)
Remaining Construction Fund Balance, net of bond calls $ 333.14
It is anticipated that the average property owner who bonded for the assessment will save $240 -
$300 per year, which will be reflected on their property tax bill beginning in 2010-11. For those
who paid their assessment(s) in cash, cash refunds will range between $800 - $4,400.
FINANCIAL IMPACT
With the final reconciliation of the Lyford Cove Utility Undergrounding Assessment District
Improvement Fund,, it is now timely for the Town to make it's agreed upon contribution of
$50,799. This contribution will be transferred from the General Fund Infrastructure and Facility
Reserve to the Lyford Cove QUAD Bond Redemption Fund.
RECOMMENDATION
Staff recommends that the Town Council:
1. Adopt the draft resolution making findings that there is a surplus that will not exceed
$918,270.81 in the Lyford Cove Utility Undergrounding Assessment District
Improvement Fund and that the surplus be used to partially redeem bonds and transfer
$1,000 to the Town's General Fund, and
2. Authorize staff to transfer $50,799 from the General Fund Infrastructure and Facility
Reserve to the Lyford Cove Utility Undergrounding District Bond Redemption Fund.
Exhibits: Draft Resolution
Prepared By: Heidi Bigall, Director of Administrative Services
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
DETERMINING SURPLUS AND ORDERING
DISPOSITION THEREOF
Lyford Cove Utility Undergrounding Assessment District
and
Lyford Cove Utility Undergrounding Supplemental Assessment District
RESOLVED, by the Town Council (the "Council") of the Town of Tiburon (the
"Town"), County of Marin (the "County"), State of California, that:
WHEREAS, the Town previously conducted proceedings pursuant to Resolution No.
15-2003 "A Resolution of the Town Council of the Town of Tiburon of Intention to Make
Acquisitions and Improvements," adopted by the Council on May 21, 2003, with respect to the
Lyford Cove Utility Undergrounding Assessment District (the "Original District");
WHEREAS, the Town subsequently conducted further proceedings pursuant to
Resolution No. 03-2006, entitled "A Resolution of the Town Council of the Town of Tiburon of
Intention to Make Acquisitions and Improvements," adopted by the Council on January 4,
2006, with respect to the Lyford Cove Utility Undergrounding Supplemental Assessment
District (the "Supplemental District");
WHEREAS, assessments were levied and bonds were issued, in two series, in the
combined principal amount of $3,973,415 (the "Original Bonds") with respect to the Original
District to represent the unpaid assessments levied in the Original District under the
Improvement Bond Act of 1915, Division 10 of the California Streets and Highways Code (the
"Bond Law");
WHEREAS, assessments were levied and bonds were issued, in a single series, in the
principal amount of $2,002,561 (the "Supplemental Bonds") with respect to the Supplemental
District to represent the unpaid assessments levied in the Supplemental District under the Bond
Law;
WHEREAS, all acquisitions and improvements provided for in the proceedings for the
Original District and the Supplemental District required to be made have been made and all
costs thereof, together with the expenses incidental thereto, have been accounted for and are
scheduled for payment;
WHEREAS, an unencumbered balance in an amount not to exceed $600,657.69 remains
in the Improvement Fund for the Original District (the "Original District Surplus"), and an
unencumbered balance in an amount not to exceed $317,613.12 remains in the Improvement
Fund for the Supplemental District (the "Supplemental District Surplus"); and
WHEREAS, this Council now wishes to make provision for the determination of
surplus funds for their orderly distribution under the Act.
NOW, THEREFORE, IT IS DETERMINED AND ORDERED as follows:
1. The unencumbered balances in the Improvement Fund for the Original District
and in the Improvement Fund for the Supplemental District are hereby determined to be
surplus and shall be disposed of as follows:
a. up to $1,000 shall be transferred to the General Fund of the Town, as
permitted by the Bond Law, and
b. the balance of the Original District Surplus shall be transferred to the
Redemption Fund established for the Original District to be applied as a credit upon the
assessments within the Original District in the proportion which the amount of each
individual assessment bears to the total amount of all individual assessments, to wit:
(i) for any individual assessments for the Original District that have
been fully paid and satisfied as of the date of the adoption of this resolution, the
credit thereon shall be given in cash (by check of the Town) to the owner of
record of the applicable parcel as of the date of the adoption of this resolution;
and
(ii) the balance available after giving the credits specified in (i) above
shall be transferred to the Redemption Fund for the Original District and used to
redeem a portion of the Original Bonds at the next interest payment date of the
Original Bonds that is at least 60 days from the date of the adoption of this
Resolution.
C. the balance of the Supplemental District Surplus shall be transferred to
the Redemption Fund established for the Supplemental District to be applied as a credit
upon the assessments within the Supplemental District in the proportion which the
amount of each individual assessment bears to the total amount of all individual
assessments, to wit:
(i) for any individual assessments for the Supplemental District that
have been fully paid and satisfied as of the date of the adoption of this
resolution, the credit thereon shall be given in cash (by check of the Town) to the
owner of record of the applicable parcel as of the date of the adoption of this
resolution; and
(ii) the balance available after giving the credits specified in (i) above
shall be transferred to the Redemption Fund for the Supplemental District and
used to redeem a portion of the Supplemental Bonds at the next interest payment
date of the Supplemental Bonds that is at least 60 days from the date of the
adoption of this Resolution.
3. The Finance Director (or designee thereof) of the Town is hereby authorized and
directed to cause the credits to be made in accordance with this Resolution.
4. The Auditor's Records for the Original District and the Supplemental District
shall be corrected to reflect the credits for assessments which are payable in installments, as
provided herein, which corrections may be made on the face thereof or by an amendment
thereto. For any delinquent assessments subject to judicial foreclosure proceedings, the Finance
Director shall notify foreclosure counsel of the giving of the credits herein specified.
5. This Resolution shall become effective upon the date of its adoption.
PASSED AND ADOPTED at the regular meeting of the Town Council of the Town of
Tiburon, State of California, on this day of 2009, by the following vote:
AYES:
Councilmembers:
NOES:
Councilmembers
ABSENT:
Councilmembers
Alice Fredericks,
Mayor
ATTEST:
Diane Crane Iacopi,
Town Clerk
To:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
From: Police Department
Public Works Department
Office of the Town Manager
Town Council Meeting
November 18, 2009
Agenda Item: AT
Subject: Recommendation to Provide Direction on Proposal to Install License
Plate Reader Cameras on Tiburon Boulevard and Paradise Drive and
Consideration of Use Policy for Camera Operation
Reviewed By: Z~ - -
BACKGROUND
At its March 4, 2009 meeting, the Town Council heard a proposal from staff for the installation
of security cameras on Tiburon Boulevard and Paradise Drive. The cameras would photograph
the rear of vehicles entering and departing the peninsula using character recognition software
that captures and records license plate numbers. This information would aid the Police
Department in post-crime investigative efforts and in a real-time manner if a particular vehicle
was wanted in connection with a crime. (For more information on the system itself a fact sheet,
which is also on the Town's website, is attached.)
At that meeting, the Town Council directed staff to:
1. Develop a program that specifies camera type, software, location and mounting options, and
technical capabilities
2. Negotiate with the participating agencies regarding cost sharing arrangements, including
annual cost of maintenance
3. Bid the project, including a maintenance contract for the system
4. Refine and return with a policy on system use for Town Council review and approval
5. Return to Town Council for award of bid and final direction on implementation of the
proj ect.
This report will address each of the above tasks separately.
Task 1: Develop Program
Camera Location
At the outset, staff anticipated being able to place four cameras on Tiburon Blvd. on Caltrans
lights or signal standards using Caltrans power, along with two cameras on Paradise Drive on
existing PG&E poles. The most efficacious location for the cameras on Tiburon Blvd. is on the
center median on existing light standards. Caltrans has electrical power in the median and the
location optimizes the operating parameters (viewing angles and distances) of the cameras.
Caltrans advised staff to submit a right-of-way encroachment permit application. Following
submission, Caltrans informed staff that it had no policy governing the installation of cameras
for criminal investigations by local jurisdictions and, therefore, it could not approve the
application until such a policy was adopted. Caltrans subsequently adopted a policy but noted
that co-location of electrical equipment on its standards was not permitted by its policy and that
the Town would not be allowed to access to its electrical power.
These Caltrans actions forced staff to consider locating the cameras along the sides of the
roadway without the use of Caltrans poles. This increased the technical complexity of the
project in terms of camera specifications and provision of electrical service, so staff, in
consultation with an ad-hoc committee of the Town Council, determined that a consultant
specializing in this technology was necessary. In May, Kimley-Horn, an engineering consulting
firm, was retained to work on the project.
In the same month, Town Engineer Nicholas Nguyen and Chief of Police Michael Cronin met
with an engineer from Caltrans to seek an exception to their policy. This effort was unsuccessful.
The engineer strongly discouraged the Town from seeking permission to use the center median,
suggesting that any such application would not be approved regardless of what steps the Town
was willing to take to mitigate any perceived risks to traffic.
The most cost-effective alternative to the use of Caltrans infrastructure is to locate the cameras
on existing PG&E poles on Tiburon Blvd., two of which are reasonably located for this purpose.
In pursuing this option, staff found PG&E officials were receptive to the idea but had no policy
in place on the issue. After some time, they agreed to consider the idea provided that any
installation be done subject to their normal engineering and safety parameters.
A site meeting with PG&E officials indicated a twelve to sixteen foot arm on one pole on either
side of Tiburon Blvd. would be necessary to permit installation of the cameras. The less-than-
optimal location of the only pole on the eastbound lanes would also necessitate the addition of
another camera to capture license plates in the left turn pocket lane. However, despite having
developed what appeared to be a workable plan, PG&E then determined this approach did not
meet their safety standards for physical separation between devices on the pole.
Staff then began pursuing the remaining option: installation of new poles and electrical power on
the shoulder of Tiburon Blvd. in a manner acceptable to Caltrans (although staff continued to
probe the possibility that Caltrans and PG&E might reconsider their rejection of the more cost-
effective approaches). The approach of installing poles is entirely viable and can be
accomplished consistent with existing Caltrans right-of-way policy, but it is the most costly of
the three approaches.
The continued outreach with Caltrans and PG&E appears to have been fruitful, as staff has now
received indications from both entities that they may be willing to accommodate the Town's
project after all. PG&E has suggested that they may be able to make necessary modifications to
their poles that would permit our use, and, even more favorably, Caltrans has now put forward
the idea of either turning over the two light standards in the median, the ones the Town wanted to
use in the first place, to the Town or entering into a maintenance agreement wherein the Town
would become responsible for the maintenance of the single street light on each pole.
System Performance
Council asked staff to investigate and report on anticipated system reliability or performance.
Reliability is expressed as a percentage of "reads" on license plates passing through the "capture
zone". A "read" occurs when the system is able to decipher the exact numbers, letters and
symbols of a license plate in the order they actually appear on the plate. Systems under
consideration range in reliability from 85 to 95% depending on the system and its set up,
including camera location. The data is based largely on mobile as opposed to fixed cameras.
Reliability is expected to be somewhat higher in the fixed installation we are considering. It also
assumes the camera's view of the "capture zone" is not obstructed by another vehicle, something
that could occur with the passage of a very large vehicle. The closer the cameras are located to
the center of the traffic lanes, the less likely this is to occur. Thus, use of the center medians is
not only the most cost effective option, but also the best from the perspective of viewing angle
and system performance.
Task 2: Cost and Cost Sharing
Of the costs discussed below, the Marin County Sheriff's Office has agreed to pay 10% of the
initial costs and the ongoing maintenance and operating costs. The Belvedere City Manager has
indicated the city is willing to pay its customary 25% share of all Town costs, including
operation and maintenance, subject to approval of the City Council. Two Association of Bay
Area Governments (ABAG) grants totaling $48,000 are available for the project.
Project costs vary widely depending on the location of the cameras. Costs for the three different
approaches are discussed below. All of these estimates contain a 15% contingency, and all
include the cost of Paradise Drive cameras using an existing PG&E pole.
Option A: Cameras on existing Caltrans li ht poles in the center median of Tiburon
Boulevard
Option A would cost approximately $137,000.00, funded as follows:
Town contribution: $44,500
Belvedere contribution: $30,800
Sheriff contribution: $13,700
ABAG grants $48,000
Option B: Cameras on existing PG&E utility poles on the shoulder of Tiburon
Boulevard
Option B would cost approximately $166,000, funded as follows:
Town contribution: $645000
Belvedere contribution: $37,400
Sheriff contribution: $16,600
ABAG grants $48,000
Option C: Cameras on new poles erected by the Town on the Caltrans right of way
Option C would cost approximately $197,000. Over $70,000 would be
attributable to electrical, construction, infrastructure and possible environmental
costs associated with erecting poles and supply them with electrical power. The
funding breakdown would be as follows:
Town contribution: $85,000
Belvedere contribution: $445300
Sheriff contribution: $19,700
ABAG grants $489000
Task 3: Bid Project and Maintenance Agreement
The project does not require a formal competitive bid process. If so directed by the Town
Council, staff will informally bid the project and proceed with the lowest responsible bidder for
both the acquisition of the camera system and the installation of the poles (if necessary).
Kimley-Horn will assist the staff in determining qualified vendors for the camera system.
Maintenance agreements range up to $11,000 per year for an "all inclusive" warranty/
maintenance agreement subject to negotiation. Annual costs for electricity and data transmission
are estimated at $1,200 to $4,200 per year depending on the location of the cameras. The system
hardware consists of proven technology that is fairly robust. All costs of maintenance and
operation will be shared by the City of Belvedere and the County.
The purchase of a long-term maintenance or warranty agreement will depend on the cost. Staff
recommends that the first year of operation be completely covered under warranty, which staff
will insist be included in the purchase price. The decision to extend an agreement beyond that
period would be an outgrowth of experience with the system. System components typically have
about a ten year service life.
Task 4: Policy
A use policy has been drafted and is attached. Key elements include:
• Cameras will be "fixed" to record only the back of vehicles and do not have "pan, tilt &
zoom" capability.
• Cameras will be directed only to capture the rear of vehicles and not into any place where a
"reasonable expectation of privacy" might exist.
• Access to recorded images will be password protected and access limited to the Police Chief,
the Police Captain, Watch Commanders, the Police Detective and the Town's Information
Services Manager.
• Images not retained in connection with a specific offense will be purged after one hundred
days (or as soon as the law allows).
• Images will only be released in compliance with a search warrant, subpoena, court order or
statute or to allied agencies as evidence in a criminal investigation. Allied agencies would
only receive images released to them by Tiburon Police Department for a specific
investigation.
• An annual audit of compliance with the policy will be conducted by the Town Manager.
It was staff's intention to retain the images (records) for only sixty days. However, based on a
review of the California Public Records Act, the Town Attorney advises that the Town must
maintain these records for a minimum period of one hundred days. The Act also exempts the
images from public disclosure under section 6254.
Task 5: Return to Council for approval (see Recommendation section below)
PUBLIC COMMENT
There has been no shortage of commentary from the public on this project. At Town Council's
direction, staff sought public comment through several different articles in both the print and
electronic versions of the Town's newsletters. Staff has made a substantial effort to be
responsive to questions and concerns, particularly from people who expressed reservations about
the project.
Generally, objections fall into three areas. The first is privacy. Although it is settled law that the
proposed use of the cameras is not a violation of individual privacy rights, there are many people
who oppose them on these grounds and believe the cameras will be intrusive. Another, smaller,
group are those who believe the use of the cameras is harmful to local business and the Town's
reputation. The third group objects on fiscal grounds or because of perceived system deficiencies
that will render the system ineffective (criminals will switch or conceal license plates, use stolen
cars or find other ways to enter the peninsula). A number of people who supported the system
stressed the need for a comprehensive policy governing its use.
In tracking public comment about the cameras, it is clear that a flurry of comment followed any
mention in the media. When staff first published the idea in the Town's newsletter and later in
x
Tiburon Talk, the response numbered about thirty calls and emails, a very substantial majority of
which supported the idea.
In July of this year the San Francisco Chronicle wrote an article on the cameras which, in staff's
view, left the reader with the inaccurate notion that the cameras would photograph vehicle
occupants, not simply capture their license plate number. It prompted many negative a-mails and
phone calls. That story was followed by an Associated Press article which received wide
distribution and triggered another spate of communication. Most who contacted the Town as a
result of the articles opposed the idea, although the majority of commentators were from outside
the peninsula and some from other states.
Following the murder of Mrs. Rosenthal, the camera issue once again received regional coverage
by television, radio stations and local newspapers. Public response was muted. The Police
Department received only a handful of calls or emails, all in support of the project. On balance,
the majority of communication staff has received indicates that the idea of security cameras is
widely, although certainly not unanimously, supported by peninsula residents; the results are
similarly lop-sided for those who do not reside here and disapprove of the concept.
ENVIRONMENTAL DETERMINATION
Staff has made a preliminary determination that the project is categorically exempt from the
requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15303
(Class 3, new Construction) of the CEQA Guidelines. If the Town Council chooses to approve
the project, it should finalize this finding and direct staff to prepare and file a Notice of
Exemption.
NEXT STEPS
Neither Caltrans nor PG&E has yet given us permission to use their poles and staff cannot be
certain of when, whether or under what conditions permission may be forthcoming, but the fiscal
impact is substantial and therefore worth some additional time spent in negotiation. Staff will
continue to negotiate for both options until there is agreement or until it becomes clear no further
progress is likely or the solutions proposed by either PG&E or Caltrans would degrade system
efficiency or result in higher future costs or unacceptable operating constraints.
FISCAL IMPACT
The project is projected to cost between $137,000, if the most cost-effective path is available, to
$197,000 at the other end of the cost spectrum; the Town's share of the cost would range from
$44,500 to $85,000, along with the ABAG grant funding of $48,000.
The Town appropriated $50,000 for this project under the Capital Outlay section of the 2009-
2010 budget. In order to build the project, the Town needs to budget funds for the entire project
expense, as the funding partners shares would come through reimbursements to the Town (this is
y.. f ( >
the standard manner of budgeting projects that use outside sources of funding such as grants or
assessments). Staff proposes to move this project to the Capital Improvement Project section of
the budget as follows using the most conservative assumptions about cost:
Currently budgeted Town funds (Capital Outlay) $501000
Additional appropriation of Town funds $35,000
ABAG grant funds $48,000
Belvedere contribution $445300
Marin County Sheriff contribution $19,700
TOTAL CIP FUNDING $197,000
It is important to stress that these are the maximum contributions to the project. If either of the
two less-costly options becomes available, all parties' contributions would be reduced
accordingly, with the exception of the ABAG grant which would remain the same.
RECOMMENDATION
Staff recommends that the Town Council:
1. Hear a staff report on this issue
2. Open the meeting for public input
3. Determine if it wishes to proceed with the project, and, if so,
4. Approve, or approve as amended, the draft policy
5. Authorize the Town Manager to implement the project with the direction to continue
negotiation with PG&E and Caltrans in an effort to reach a more economical solution or,
failing that, to proceed with the construction of Town-owned poles and related
infrastructure
6. Approve a budget amendment increasing the funding for this project from $50,000 to
$197,000 to make funds available as necessary to complete the project
7. Direct staff to prepare and file a Notice of Exemption under CEQA
Prepared By: Michael J. Cronin, Chief of Police
Exhibits: Fact Sheet
Use Policy
Photo renderings of camera location options
What is the purpose of the cameras?
The cameras would serve two purposes: (1) as a. post-crime investigative tool., and (2) as a real-time licen.se-
plate alert system in. the event of a crime in progress, such as an abduction, a. crime under investigation by the
Tiburon Police Department, or a similar search for particular plate numbers.
How would the cameras help solve or prevent crime?
'I'he most common property crime occurring in "Tiburon is theft, either of vehicles or from vehicles and
residences, although occasionally truly heinous crime, like the 2009 murder of a resident at her home, occurs.
• In 2007 there were 97 thefts, 17 burglaries and 10 auto thefts; losses totaled just over $500,000
• In 2008 there were 99 thefts, 20 burglaries and 2 auto thefts; losses totaled just over $,200,000
• Most of the crimes were committed between midnight and dawn
• 'The perpetrators identified by police were not residents of the peninsula
• T'he perpetrators all had extensive criminal histories
The Tiburon Police Department (TPD) believes additional arrests could have been made and future crimes
prevented if it had a record of vehicles that coming to or leaving the peninsula proximate to the occurrence of
crimes. The most efficient method of creating that record is through a camera system capable of capturing
vehicle and license plate images. `T'echnology is available that takes a single, digital color photograph of the
back of each passing car.. Optical character recognition software "reads" and stores the license plate numbers.
A. short-retention data base of plate numbers would enable the TPD to look for patterns that match crimes or to
search for certain vehicles that might be wanted in connection with particular crimes. The system could be
programmed to search for particular license plates including stolen vehicles, those identified. in. "'Amber Alerts"
(missing children a.l.erts) or those involved in crimes under investigation by the Tiburon Police.
What does the camera capture?
'T'he camera will take a still photo of the rear of each passing vehicle (as seen in the upper right of the image
below). The balance of the screen is what the system. would produce based on the type of search is being
conducted (specific plate, stolen vehicles, etc.).
The cameras, which are fixed and cannot be remotely operated, would only capture the rear of vehicles,
yielding the license plate number and probably color and make of the vehicle. They will not be able to "see" or
photograph. vehicle occupants.
Where would the cameras be located?
The Tiburon. Peninsula has only two roads of ingress and egress: Tiburon Boulevard and Paradise Drive. The
cameras would be located on each of those roads near the westernmost border of the Town.. A. total. of six
cameras (one for each lane of traffic) would be employed.
Will the system invade privacy?
No. It is well established that one does not have a reasonable expectation of privacy driving a car down a public
street such as 'I"'iburon Boulevard. License plates are required to be posted on vehicles precisely so that they can
be easily and publicly identified. Anyone can stand by the side of the road and photograph passing traffic.
Because the camera will only be photographing the rear of vehicles, it will not create a record of its occupants.
Unless one is driving a vehicle that has been identified by the TPD in connection with a crime, his or her plate
number will simply be one of thousands captured briefly for review if a subsequent crime investigation. so
warrants.
Will the system be used for traffic enforcement?
No. 'it will not have that capability. Only still photographs will be taken and the system will have no method of
detecting moving violations such as driving while under the influence or speeding.
Who will govern the use of the system and how long will license plate data be retained?
The Tiburon. Town Council will. govern. use of the system.. When this program. returns for final consideration,
Council. will. concurrently consider a use policy that sets limits on how long images are retained, who can view
them anal. under what circumstances. We expect the policy to include a short-term sch.ed.u.le for .retention, after
which all data which is not being used by the TPD on an active investigation would be automatically and
permanently discarded. We also expect the policy to reflect a very limited set of uses and :purposes for the data,
and specify that only the 'town Council has the authority to alter the use policy.
What do they cost and who will pay for the cameras?
The cost is not yet certain as system options are still being evaluated, but it is likely to cost between $135,000 and
$200,000. 'I"he cost would be absorbed by three local governments: Tiburon, Belvedere and Marin County (for
the unincorporated. areas along the north of the peninsula); a portion would be paid. through a grant. The
projected cost to Tiburon not covered by grants would, be between $45,000 and $85,000.
Is this a cost-effective use of public resources?
No one can say for certain whether the system will help the D capture criminals, but it is likely to provide a
very valuable tool to develop leads for solving crime. We do know that using an. officer to watch for vehicles, as
is necessary from time to time is a very labor intensive use of our police resources and. takes officers away from.
other duties. In the event of a heinous crime, like a. child abducted from a school, it could prove life-saving if
even a partial license plate were identified. by a. witness or a search of license plates entering or leaving tl7e
peninsula proximate to the crime produced valuable leads in a time-critical. manner.
Will the information be available to the public?
No, it will not be made available to the public. Information will. only be released pursuant to a court order or
subpoena.
Who should I call if I have questions?
TPD Chief Michael. C.ron.in may be contacted. at in.cronin@ci.tiburon.ca.us or 789-2807 to answer questions.
378. AUTOMATED LICENSE PLATE READER SYSTEM: PURPOSE AND SCOPE
Periodically the Town of Tiburon experiences patterns of criminal activity perpetrated by
non-resident criminals. Most of this crime has involved theft from vehicle, burglary and
auto theft. The Police Department staff has determined that deployment of a fixed
Automated License Plate Reader System (ALPRS) would be a desirable and cost
effective investigative tool for suppression of these crimes. The Town Council has
concluded that such a system will enhance public safety in the Town of Tiburon.
It is the intent of the Town Council to:
Ensure that ALPRS is capable of effectively and efficiently achieving its articulated
purpose.
2. Ensure that the design, scope and capabilities of the ALPRS minimize its
negative impact on privacy.
3. Ensure that the decisions to employ ALPRS, including system design and cost, are
made through an open and publicly accountable process.
4. Create technological and administrative safeguards to reduce the potential for
misuse and abuse of the system.
378.1 POLICY
The Tiburon Police Department operates a ALPRS as an investigative tool for the sole
purpose of creating a safer environment for all those who live, work and visit the Town.
This policy provides guidelines for ALPRS operation.
378.2 DEFINITIONS
378.2.1 ALPRS
A non-portable, fixed system consisting of a camera, or cameras, and related
equipment used to capture, record, transmit and store license plate and vehicle
images/data recorded on public spaces for use in criminal investigations; and for
searching data files for vehicles wanted or sought in connection with the commission of
a serious crime; and capable of notifying police of the presence of such vehicles.
378.3 PROCEDURE
The following procedures have been established for the effective operation of the
ALPRS.
Draft Policy
(Pending Town Council review on 11-18-2009)
378.3.1 EQUIPMENT & LOCATION
ALPRS cameras used by the Tiburon Police Department will be in fixed locations in
public space approved by the Town Manager. The cameras will be positioned to record
rear images of vehicles and their license plates only. Cameras will not have pan, tilt and
zoom capabilities or the ability to record sound. Cameras will not be installed in, or
directed at any space where a reasonable expectation of privacy exists.
378.3.2 USER ACCESS
Images/data will be continuously recorded. Images/data will be transmitted to a
dedicated computer in a location determined by the Town Information Services
Manager. Access to the images/data will be limited to the Town Information Services
Manager, Watch Commanders, Detective, Evidence Technician, Police Captain and
Police Chief. Access is for the sole purpose of identifying vehicles suspected of being
occupied or operated by person(s) responsible for crimes under investigation by the
Tiburon Police Department or other law enforcement agency.
Access will require a unique login/password for each authorized user of the system.
User names and passwords will be issued by the Town IS Manager to individuals
approved by the Chief of Police. The system will record user access for audit purposes.
Real time access and viewing may be authorized by the Chief of Police, the Police
Captain or the watch Commander to facilitate emergency traffic or disaster
management, or when it is reasonable to believe such use may result in the
apprehension of an at large felony suspect known or suspected of being in or en-route
to the Tiburon area.
378.3.3 TRAINING
Personnel authorized to access the ALPRS will be appropriately trained and supervised
in use of the equipment and this policy.
378.3.4 PROHIBITED ACTIVITY
System use will be conducted in a professional, ethical and legal manner. The ALPRS
will not be used for any purpose not directly related to the investigation of reported
crime or disaster management.
378.4 IMAGE/DATA STORAGE
All images/data will be stored in a secure area with access restricted to authorized
persons except that images/data retained in connection to a criminal investigation shall
Draft Policy
(Pending Town Council review on 11-18-2009)
2
be transferred to suitable storage medium and placed into evidence in accordance with
current departmental evidence procedures.
Images/data not required for investigative purposes shall be retained for a period of one
hundred days. The system shall be configured to automatically purge any images/data
older than one hundred days.
The Town IS manager shall periodically inspect the system to insure images/data are
purged in accordance with this section and shall report any evidence of deviation from
this policy to the Town Manager.
378.5 RELEASE OF IMAGES
The release of images/data shall be done only with the authorization of the Chief of
Police or the Police Captain, or in compliance with a search warrant, subpoena, court
order or in accordance with a federal or California statute. Images/data released under
such conditions shall be transferred to a disc and placed into evidence and released in
accordance with current departmental evidence procedures under the supervision and
control of the Evidence Technician.
378.5.1 ALLIED AGENCY INVESTIGATIVE REQUESTS
Requests for images/data from other government agencies required for a criminal
investigation shall be submitted to the Chief of Police or the Police Captain, who will
promptly review the request for conformity with this policy before any release. The
images/data requested shall be preserved until the request has been reviewed. Release
of any images will be in accordance with current departmental evidence procedures.
378.5.2 PUBLIC RECORDS ACT REQUESTS
Images/data captured by ALPRS are exempt from release pursuant to the California
Public Records Act (CPRA) Government Code Section 6254.
378.6 ANNUAL REVIEW OF THE ALPRS.
The Chief of Police or his/her designee will conduct an annual review of the ALPRS.
The annual review will include an inventory of all ALPRS related equipment, annual
system costs and a summary of any policy violations, or a statement of compliance with
the established policy. The review shall be submitted to the Town Manager no later than
the last business day in January of each year.
Draft Policy
(Pending Town Council review on 11-18-2009)
3
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