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HomeMy WebLinkAboutTC Agd Pkt 2010-05-19TOWN OF TIBURON Regular Meeting Tiburon Town Hall Tiburon Town Council 1505 Tiburon Boulevard May 19, 2010 Tiburon, CA 94920 Regular Meeting - 7:30 p.m. Closed Session - 6:45 p.m. AGENDA TIBURON TOWN COUNCIL CLOSED SESSION - 6:45 p.m. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Section 54956.9(a)) Haygooni v. Servino Venture II LLC Marin County Superior Court Case No. CIV096065 CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Tiburon Police Association Negotiators: Town Manager and Director of Administrative Services CALL TO ORDER AND ROLL CALL Councilmember Fraser, Councilmember Fredericks, Councilmember O'Donnell, Vice Mayor Slavitz, Mayor Collins CLOSED SESSION ANNOUNCEMENT, IF ANY 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 -Adopt minutes of April 21, 2010 meeting (Town Clerk Crane Iacopi) 2. Town Council Minutes - Adopt minutes of May 5, 2010 meeting (Town Clerk Crane Iacopi) 3. Christine Carter Retirement - Adopt resolution commending Christine Carter for 12 years of outstanding service to the Reed Union School District upon her retirement (Town Clerk Crane Iacopi) ACTION ITEMS 1. Marin Energy Authority - Consider level of Town participation, as a customer, in Marin Clean Energy program (Town Manager Curran) PUBLIC HEARINGS 1. 90 Via Los Altos Precise Plan Amendment - Consider amendment to La Cresta Precise Plan to create a new landscape envelope to accommodate an existing and proposed swimming pool, spa, fencing and walls for property located at 90 Via Los Altos (Planning Manager Watrous) Address: 90 Via Los Altos APN: 034-330-43 Applicants: Mitch and Pamela McCullough 2. Del Mar Valley Utility Undergrounding Assessment Districts - Consider actions related to formation of utility undergrounding districts (Town Attorney Danforth) a) Resolution repealing existing supplemental assessment district b) Resolution amending original district boundaries c) Resolution of intention to form a new supplemental assessment district TOWN COUNCIL REPORTS TOWN MANAGER'S REPORT 0 Update and direction regarding Ned's Way Joint Recreation site evaluation WEEKLY DIGESTS • Town Council Weekly Digest - May 7, 2010 • Town Council Weekly Digest - May 14, 2010 ADJOURNMENT GENERAL PUBLIC INFORMATION ASSISTANCE FOR PEOPLE WITH DISABILITIES In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (415) 435- 7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAILABILITY OF INFORMATION Copies of all agenda reports and supporting data are available for viewing and inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. Agendas and minutes are posted on the Town's website, www.ci.tiburon.ca.us. Upon request, the Town will provide written agenda materials in appropriate alternative formats, or disability-related modification or accommodation, including auxiliary aids or services, to enable individuals with disabilities to participate in public meetings. Please send a written request, including your name, mailing address, phone number and brief description of the requested materials and preferred alternative format or auxiliary aid or service at least 5 days before the meeting. Requests should be sent to the Office of the Town Clerk at the above address. PUBLIC HEARINGS Public Hearings provide the general public and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. Cc TOWN COUNCIL MINUTES CALL TO ORDER Mayor Collins led the regu eeting of the Tiburon Town Council to order at 7:30 p.m. on Wednesd , April 21, 2010, i Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. e„! ROLL CALL PRESENT: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: PRESENT: EX OFFICIO: Collins, Fredericks, Fraser, O'Donnell Slavitz Town Manager Curran, Town Attorney Danforth, Director of Administrative Services Bigall, Director of Community Development Anderson, Director of Public Works/Town Engineer Nguyen, Chief of Police Cronin, Town Clerk Crane Iacopi Prior to the regular meeting, the Council met in closed session at 6:30 p.m., followed by an interview in open session at 7:15 p.m. CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - PENDING LITIATION (Section 54596.9(c)) • Case name unspecified because disclosure would jeopardize settlement negotiations CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Tiburon Police Association Negotiators: Town Manager and Director of Administrative Services INTERVIEWS FOR VACANCIES ON BOARDS & COMMISSIONS (Heritage & Arts Commission - One Vacancy) • Ric Postle, 110 Marinero Circle DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 1 CLOSED SESSION ANNOUNCEMENT, IF ANY Mayor Collins said there was no action to report. ORAL COMMUNICATIONS Andrew Thompson, former Mayor and Councilmember, asked the Council to revisit certain provisions of Tiburon's tree and view ordinance. Thompson said that in 1989, an element of the ordinance was removed that had previously required persons whose trees are bloF,~ing views to be financially responsible for ensuring the rights of others' views. He said that without a financial incentive, there was a tendency to "let your yard go, and others end up paying for it." Thompson said that he would like to have this provision reinstated into the view ordinance which he said would encourage cooperation, and create moral and financial responsibility, between neighbors. Mayor Collins referred the matter to Town staff. CONSENT CALENDAR Mayor Collins removed Item Nos. 1 and 3 from the Consent Calendar for further discussion. 1. Appeal of Tree Removal Permit for 100 Ned's Way - Adopt resolution denying an appeal of the Design Review Board's approval of a tree permit to remove six eucalyptus trees; File T2009-31 (Director of Community Development Anderson) Address: 100 Ned's Way (Hilarita Apartments) APN: 058-151-39 Applicant: Hilarita Tiburon Ecumenical Association Appellant: Victoria Tuorto (Hilarita Tenant's Association) I 2. Community Violence Solutions- Approve request by Community Violence Solutions to proclaim April as Sexual Assault Awareness Month (Town Clerk Crane Iacopi) 3. Del Mar Undergrounding Districts - Approve retention of Bond Counsel for reformation of Del Mar Undergrounding Districts (Town Attorney Danforth) 4. Del Mar Undergrounding District Litigation - Approve budget amendment to fund litigation settlement agreement (Director of Administrative Services Bigall) 5. Greenwood Beach Drainage Easement - Adopt resolution authorizing execution of Quitclaim of the Town's easement over 444 Greenwood Beach Road (Director of Public Works/Town Engineer Nguyen) DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 2 MOTION: To adopt Consent Calendar Item Nos. 2, 4 and 5. Moved: Fraser, seconded by Fredericks Vote: AYES: Unanimous ABSENT: Slavitz Discussion of Items removed from Consent Calendar 1. Appeal of Tree Removal Permit for 100 Ned's Way - Adopt resolution denying an appeal of the Design Review Board's approval of a tree permit to remove,~ix eucalyptus trees; File T2009-31 (Director of Community Development Anderson) Address: 100 Ned's Way (Hilarita Apartments) APN: 058-151-39 Applicant: Hilarita Tiburon Ecumenical Association Appellant: Victoria Tuorto (Hilarita Tenant's Association) Mayor Collins asked for a staff report on the modified resolution submitted as "Late Mail." Town Attorney Danforth described the changes to the resolution that addressed the issues raised in the appeal about whether the trees were in whole or in part on Cal/Trans right-of-way. She said that Cal/Trans had staked the property but that in an abundance of caution, the Town would require the applicants to establish ownership or get permission from Cal/Trans before taking action to remove the trees. Ms. Danforth said that the Town used the word "hazardous" at the top of page 2 as a "term of art" within CEQA guidelines. She said that language was being added to the resolution to clarify that hazardous means, "as defined by the CEQA guidelines." Mayor Collins opened the public hearing. Appellant Vicky Tuorto, Ned's Way, requested Council reconsideration of its action based on new information she had submitted in her letter and a letter from Mr. Hardy, concerning the location of the trees on the property. She also said she had a 1995 letter from Cal/Trans that said the trees were "straddling the property" line. Ms. Tuorto once again raised the issue of "piecemealing" and said that the actions of the HTEA Board were not only a current threat to the trees but represented an on-going threat. Ms. Tuorto submitted minutes of an HTEA meeting in which she said the Board of Directors had voted to remove four Blue Gum Eucalyptus and said that four days later, they submitted an application to the Town that listed six trees. She said that Jim Mallot had noted that HTEA "selectively" cut down every cluster of trees on the property. DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 3 Ms. Tuorto said that when she brought a petition to the HTEA Board that called for the review of the tree-cutting, she was told it was "not the tenants' business." Mayor Collins closed the public hearing. Councilmember O'Donnell said that while he respected the passion and concern for the trees demonstrated by the appellants, he said that it was difficult for the Council to be arbiters of what happens at the Hilarita. He said that there may be internal conflicts there that need to be resolved. He said he would vote for the amended resolution. Councilmember Fredericks said that the authority of the Town Council was limited to review of trees deemed to be "Heritage Trees." She said that these findings could not be made with this application. Councilmember Fraser thanked Ms. Tuorto for her diligence, hard work and passion. He said that the Design Review Board had served the community, including the Hilarita, in its review of the project and had done well in its analysis of the issues. He said that he thought the outcome would be positive for both applicants and appellants. He said the amended resolution required the applicants to get permits from Cal/Trans for the tree work. Fraser stated that he would vote to adopt the amended resolution. Mayor Collins said that his previous comments on the appeal still stood. MOTION: To adopt the resolution in Consent Calendar Item No. 1, as amended. Moved: O'Donnell, seconded by Fraser Vote: AYES: Fraser, Fredericks, O'Donnell NOES: Collins ABSENT: Slavitz 3. Del Mar Undergrounding Districts - Approve retention of Bond Counsel for reformation of Del Mar Undergrounding Districts (Town Attorney Danforth) Town Attorney Danforth said she had met with Sam Sperry, a well-respected lawyer in the field. She said the proposed agreement for services would include two phases of work: 1) house- keeping matters to adopt resolutions severing the Hawthorne and Hacienda sub-zones from the district, and to rescind the formation of the supplemental district, remove the assessments and create new financing for the district; 2) formation of a new supplemental assessment district. Ms. Danforth described the cost of this work and answered Council's questions concerning the costs. She said that initial work on forming the new supplemental assessment district work would cost up to $10,000; if the Town successfully formed the district, it would owe additional fees under a formula set forth in the agreement. Ms. Danforth estimated that these fees would be around $33,000; she noted that these costs (approximately $43,000) could be recovered from the district. If the Town did not form the district, the Town would be out of pocket a maximum of DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 4 $10,000 for the formation costs. The agreement also provides for the bond counsel to draft the resolutions necessary to implement the December 31, 2009, appellate court ruling invalidating the 2006 supplemental assessment district and modifying the modifying the 2005 original district pursuant to the settlement of the first Bonander case. Councilmember O'Donnell asked Ms. Danforth if she was confident that the attorney had read the record of the lawsuits filed in connection with the formation of the Del Mar undergrounding districts. Ms. Danforth said that he had read the settlement agreement and judgment in the Bonander case, and had been fully briefed by staff. MOTION: To adopt Consent Calendar Item No. 3, as written. Moved: Fredericks, seconded by O'Donnell Vote: AYES: Unanimous ABSENT: Slavitz ACTION ITEMS 1. Appointments to Boards and Commissions - Consider appointments to fill vacancies on Boards and Commissions (Town Clerk Crane Iacopi) Mayor Collins said the Council had interviewed an applicant for the Heritage & Arts Commission vacancy created by the resignation of Liz Schmidt. MOTION: To appoint Ric Postle to the Heritage & Arts Commission. Moved: Fraser, seconded by Fredericks Vote: AYES: Unanimous ABSENT: Slavitz 2. Lyford Drive Parking Project - Recommendation to review scope of work for the Lyford Drive Multi-Modal Parking Lot and provide direction and authorization to staff (Director of Public Works/Town Engineer Nguyen) Town Manager Curran said that staff sought direction from Council on moving forward with the project since the scope of the work had changed pursuant to further discussions at the Council/staff retreat in March. At that meeting, Curran noted that Councilmember O'Donnell had recommended that staff investigate the cost of undergrounding utility poles in the vicinity of the project, along Tiburon Boulevard, in conjunction with the parking project. Director Nguyen gave some background on the project and Council's approval to date. He said that in November of 2009, the Council had approved a design concept and that the project cost estimate at that time was $800,000. He said the estimate included a grant from the Transportation Authority of Marin (TAM) in the amount of $304,000. He said the current cost was now DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 5 estimated to be $885,000, and that staff was still working with Cal/Trans to secure the right-of- way for the site. Nguyen said that staff had estimated the costs of undergrounding utility poles to Mar West as a separate but concurrent project in the approximately amount of $610,000. He said this estimate was based on a linear foot formula used in the Lyford Cove Undergrounding Assessment District, and that it assumed the project would be a Rule 20B project. ..'04 The Director said that if the undergrounding was a Rule 20A project, then PG&E. could lead the effort and use funds set aside in that account (he said there was $450,000 in the Town's account now). However, Nguyen said because of the backlog of PG&E Rules 20A projects, the Town might have to wait up to seven years, or as little as 2.5 years. Director Nguyen recommended that Council approve a revised scope of work for the project in order for staff to get more refined bids. He reviewed the available funding: $370,000 in this year's budget, $314,000 TAM (Clean Air) grant, for a total of available funds of $684,000. He said that the $200,000 shortfall would be included in the FY 2010-11 Capital Improvement Budget. The Mayor asked for Council comment. Councilmember O'Donnell, member of the Council's ad hoc Public Works committee, asked whether there was a potential role for the City of Belvedere to play in contributing to the project, perhaps in landscaping, with water trenched over from their Corporation Yard, or nearby park. O'Donnell said that the retaining wall in the current project would certainly invite some landscaping, as it would be visible from Belvedere. Town Manager Curran said that these options had not yet been explored fully, but that staff had broached it at the last Mayors'Nice Mayors' meeting between the two cities. She noted that most of the current parking was used by workers bound for projects in Belvedere. Councilmember Fredericks expressed concern about the escalating cost of the project. She pointed out that the cost had doubled over the last two years. She said that the first cost estimate for the project that had been reviewed by the Council was for a Town contribution of $200,000, plus the prospective $300,000+ grant from TAM. She said the next estimate was for $800,000, and now, $885,000. Adding to this the cost of taking down utility poles, she said the total cost of the project was now estimated to exceed $1.1 million. Fredericks said that given current economic conditions, and the fact that the Town was asking its departments to cut costs, this was not the right time to undertake such a project, especially since the cost estimates were still uncertain. DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 6 Fredericks suggested that there was no harm in getting in line for the Rule 20A funding, especially since the poles might have to be moved anyway as a consequence of constructing the improvements. She said it might even be possible to use this as a negotiating tool with PG&E to move the Town up the list for use of the Rules 20A funds. Councilmember Fredericks said that while she supported undergrounding efforts, and that it would be great to see the poles come down along Tiburon Boulevard, she could not justify the increase in cost of the project from $500,000 to over a million dollars. ,:~R Town Manager Curran pointed out that there was also Rule 20B credit that the Town could apply in the current cost estimate. Fredericks said that that project still had continued to grow in scope from one parking corridor to two, largely as a result of the TAM"grant. She said that she supported the project but she was not willing to support the doubling of the cost in order to remove the utility poles. Vice Mayor Slavitz agreed that the costs needed to be studied carefully, perhaps in the context of what other Town projects were "on the radar" in the coming fiscal year. Town Manager Curran said that the upcoming fiscal year budget included the annual streets and drainage projects, plus "singular" projects like the proposal for a new Jt. Recreation building on Ned's Way, and the Lyford Drive parking project. The only other funding, which remained uncertain at this point in time, according to Curran, was the cost of the Del Mar undergrounding project. She said that the new Corporation Yard was "on the back burner" at this time. She said that staff had plenty of projects on its plate in the coming year. Mayor Collins asked whether there was any information on the cost effectiveness of undergrounding the utility poles now or at a later date. Director Nguyen said that current economic conditions had driven down construction costs and that there was a potential advantage to bid the project now. He said that it might be possible to design the project to install the vaults and other equipment, but not pull the lines. He said that Rule 20A funding might be used at a later date to pull the lines. Town Manager Curran said that if the Council gave the go-ahead, staff could ask the utilities do the engineering design work, and then staff could use this information in a bid alternate to determine more fully what the costs of installing the vaults and conduit would be. Director Nguyen said that it would not be difficult to re-do the slurry seal on the parking lot if the actual work was done at a later date, under this scenario. Councilmember Fredericks said that while she saw the value in this approach, she asked whether it would actually put the Town in line for Rule 20A funding. Town Manager Curran said that it would not, but it would put the Town in a better position to gather this information and have a DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 7 sharper bid. Councilmember Fredericks asked how much the undergrounding design work would cost. Director Nguyen said that the $885,000 included an estimate for all the utility design work. Councilmember O'Donnell said that improving the Lyford Drive parking area was an idea conceived by Mayor Collins several years ago and that he supported it. He said he was not aware at that time of Rule 20A or Rule 20B funding but that it was "crazy" to do a project this big and not do it the right way. 4- O'Donnell said that in his experience, "piecemealing" a project always ended up costing more. He said that this would be a "shining project" for the Town and the entire community, and asked what better use of capital dollars the Town could have. Councilmember Fredericks agreed that it would be a benefit to remove the utility poles but that it would have to be done piecemeal because the jump from a half a million dollars to over a million dollars would "break the bank." She added that cost estimates were usually below what you actually pay. She encouraged the Council to spend this money in the future, when the economy improves, and she concluded that she could only support the engineering cost estimate portion of the project at this time. Mayor Collins said that he would like to see more numbers for the utility pole removal bid alternate. He said he would like to see how much of the $610,000 estimate was actually for engineering or for work such as the installation of conduit and vaults. The Mayor agreed that these were difficult economic times but said that he still thought this would be a wonderful project for the Town. He also agreed that it would be useful to see this project in the context of a matrix of projects planned for the coming fiscal year, as well as the next three to five years. Director Nguyen said that staff could work to get "better numbers" for this project, by starting the design process and getting PG&E staff involved, as well, to design their own set of plans and estimates. He noted that the Town would have to pay PG&E for their work. Councilmember Fraser asked what the cost was for the "base project." Town Manager Curran said that the $885,000 project cost was the best estimate available at this time. Fraser said that he, too, would like to see an outline of all the projects on the horizon. Town Manager Curran said that these projects and estimates were available now; however, she concurred that staff would like to put a finer point on the base [Lyford parking] project which was why staff had come to Council for direction to proceed. The Town Manager asked if the Council recommended holding off on any further design work on the project. The Mayor said no, just the "secondary part" [utility undergrounding work]. He DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 8 asked that this be addressed in the context of the next several years' budget process. Councilmember O'Donnell asked if there would be a cost to the Town to move the utility poles. Director Nguyen said that typically if a utility is within a Town project, the utility has to move the poles. O'Donnell asked if this could be used as a bargaining tool. Nguyen said that PG&E had already told staff that they would try to expedite the Rule 20A project for the Town. Mayor Collins opened the matter for public comment. There was no public comment. 01k Town Manager Curran said that the direction staff would proceed under was that, it should proceed with the Lyford Drive parking lot project engineering, as well as engineering that would include undergrounding components (such as the cost to install vaults), and bring these numbers back to Council in the context of the upcoming Capital Improvement Budget. In addition, Curran said that staff would explore cost-sharing opportunities with the City of Belvedere. Councilmember Fredericks asked if the $200,000 shortfall had yet been allocated to the project. Town Manager Curran said that it had not yet been allocated. TOWN COUNCIL REPORTS Councilmember Fredericks reported that the League of California Cities policy committees had met to consider suspending legislation pertaining to climate change (AB 32 and SB 375). She said that the League Board of Directors had voted to maintain its position concerning the legislation but had requested the Governor delay the impending deadlines and require funding be available to cities for state mandates. TOWN MANAGER'S REPORT • Neighborhood Association Summit - Discussion of possible dates in June Town Manager Curran put forth two possible dates: June 5 or June 19. Both dates were acceptable to the Council. The Town Manager also gave a brief report on the status of the contract with Cal Fire for the protection of Angel Island. She said that this would probably cost between $12,000 and $18,000 per year. She said that although the State already manages the island, the Town had no authority over what goes on there. But she said State law allowed Cal Fire to step into the breach, in the event of a fire. Mayor Collins asked why the Town had any legal obligation, including fire protection. Town Manager Curran said that the Fire District borders that were drawn in 1941 preceded the Town's incorporation and were never changed. She said that Tiburon Fire did not have an interest in changing them now. She said that Cal Fire was better equipped to service the island, in any event. She said that Cal Fire had picked up the bill for fighting the 2008 fire (in the amount of DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 9 $700,000) but that they were not willing to do so again. She said she wanted to have a contract in place before the next fire season. WEEKLY DIGESTS • Town Council Weekly Digest - April 9, 2010 • Town Council Weekly Digest - April 16, 2010 ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Collins adjourned the meeting at 8:55 p.m. RICHARD COLLINS, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK DRAFT Town Council Minutes #06 -2010 April 21, 2010 Page 10 CC-.L TOWN COUNCIL MINUTES CALL TO ORDER Mayor Colli alled the regu meeting of the Tiburon Town Council to order at 7:30 p.m. on Wednes ay, May 5, 2010, i Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL CALL PRESENT: COUNCILMEMBERS: r, Collins, Fredericks, Fraser, O'Donnell, Slavitz PRESENT: EX OFFICIO: Town Manager Curran, Town Attorney Danforth, Director of Administrative Services Bigall, Director of Community Development Anderson, Director of Public Works/Town Engineer Nguyen, Chief of Police Cronin, Town Clerk Crane Iacopi Prior to the regular meeting the Council met in closed session, beginning at 7 p.m., followed by an interview in open session, at 7:20 p.m. CLOSED SESSION CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Tiburon Police Association Negotiators: Town Manager and Director of Administrative Services INTERVIEWS FOR VACANCIES ON TOWN BOARDS AND COMMISSIONS (Parks, Open Space & Trails) • Mindy Canter, 167 Blackfield Drive CLOSED SESSION ANNOUNCEMENT, IF ANY Mayor Collins said there was no action taken in closed session. DRAFT Town Council Minutes #-07-2010 May 5, 2010 Page I ORAL COMMUNICATIONS None. PRESENTATION • Presentation of Heritage & Arts Preservation Award: Roger Felton, Recipient Heritage & Arts Commission Vice Chair Marlene Rice presented the award. Ms. dice noted the many accomplishments to the history and heritage of the peninsula made by Mr. ,Felton. Mayor Collins also presented a commendation from California State Assembly member Jared Huffinan congratulating Mr. Felton for the award. CONSENT CALENDAR 1. Town Council Minutes - Adopt minutes of April 7, 2010 meeting (Town Clerk Crane Iacopi) 2. Fee Waiver Request - Approve request by Victoria Tuorto on behalf of Hilarita Residents Association for a fee waiver to file an appeal to the Town Council (Director of Community Development Anderson) 3. Downtown Historic Building Inventory - Update Town resolution to included revised addresses/parcel numbers and buildings that have since been replaced (Director of Community Development Anderson) 4. Tiburon Peninsula Recreation Master Plan - Authorize Town Manager to negotiate and execute a service agreement with Sports Management for preparation of Recreation Master Plan/Recreation Needs Assessment (Town Manager Curran) MOTION: To adopt Consent Calendar Item Nos. 1 through 4, as written. Moved: Slavitz, seconded by Fredericks Vote: AYES: Unanimous ACTION ITEMS 1. Appointments to Boards and Commissions - Consider appointments to fill vacancies on Boards and Commissions (Town Clerk Crane Iacopi) MOTION: To appoint Tina Warren to the Joint Recreation Committee. Moved: Fraser, seconded by O'Donnell Vote: AYES: Unanimous DRAFT Town Council Minutes #-07-2010 May S, 2010 Page 2 MOTION: To appoint Park Allen to the Parks, Open Space & Trails Commission. Moved: Fredericks, seconded by O'Donnell Vote: AYES: Unanimous Town Clerk Crane Iacopi said there was still a vacancy on the Design Review Board. She said that no one had applied for the opening to date. PUBLIC HEARINGS ,*4 1. 5 Stevens Court Precise Plan Amendment - Consider amendment to Fraige Precise Plan to extend existing building envelope and create a new landscape envelope to accommodate existing and proposed decks for property located at 5 Stevens Court (Planning Manager Watrous) Address: 5 Stevens Court APN: 058-111-26 Applicants: Thomas and Susan Gallagher Council waived the staff report. Mayor Collins opened the public hearing. There was no public comment. Mayor Collins closed the public hearing. Councilmembers O'Donnell and Fraser said they had visited the property and supported the Planning Commission's findings. Councilmember Fredericks said she had looked at the site in Google Earth and also supported the Planning Commission's recommendation. MOTION: To adopt the resolution approving the precise plan amendment, as written. Moved: O'Donnell, seconded by Slavitz Vote: AYES: Unanimous TOWN COUNCIL REPORTS Councilmember Fredericks said that the Board of the League of California Cities had voted to retain a neutral position on AB 32 and to support SB 375; however, she said that the Board had asked the California Air Resources Board to include in their target-setting procedures statistical information concerning the economy. DRAFT Town Council Minutes #-07-2010 May 5, 2010 Page 3 TOWN MANAGER'S REPORT There was no report. WEEKLY DIGESTS • Town Council Weekly Digest - April 23, 2010 • Town Council Weekly Digest- April 30, 2010 ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Collins adjourned the meeting at 7:52 p.m. RICHARD COLLINS, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK DRAFT Town Council Minutes #-07- 2010 May 5, 2010 Page 4 TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed By: BACKGROUND Town Council Meeting May 19, 2010 Agenda Item: CC-3 Mayor and Members of the Town Council Office of the Town Clerk 0,k Adopt Resolution Commending Superintendent Christine Carter for her 12 year&-4af outstanding service to the Reed Union School District Superintendent Christine Carter is retiring from the Reed Union School District at the end of this school year. The Board of Trustees has planned a reception in her honor on May 26, 2010. They have also invited the Council to honor Ms. Carter in the form of a resolution. RECOMMENDATION Staff recommends that the Town Council: Exhibits: Prepared By: Draft resolution Diane Crane Iacopi, Town Clerk Move to adopt the resolution commending Christine Carter for her 12 years of outstanding service to the Reed Union School District TOWN OF TIBURON PAGE 1 OF 1 RESOLUTION NO. XX-2010 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON RECOGNIZING CHRISTINE CARTER FOR HER 12 YEARS OF OUTSTANDING SERVICE TO THE REED UNION SCHOOL DISTRICT WHEREAS, Christine Carter has been the Superintendent of the Reed Union School District since July of 1998; WHEREAS, Superintendent Carter led the way in bringing technology to the classroom, including these accomplishments that have been realized in the Reed Union School District over the past 12 years: • since 1999, every teacher in the district has had a laptop computer for their use to support classroom learning; • in 2005-06, as part of the Millennial Classroom Project, every 6th, 71n, and 8th grade student at Del Mar Middle School was provided a laptop for their use throughout the school year; • in 2007-08, a similar program was implemented to provide laptops for 5th grade students; and WHEREAS, under Superintendent Carter's leadership, all three schools in the District have been recognized as "California Distinguished Schools " (1996, 2000, 2002, and 2009); WHEREAS, Superintendent Carter has forged a partnership working with the Town of Tiburon on innumerable issues of mutual concern and public benefit; WHEREAS, Superintendent Carter is not only known for her leadership skills and accomplishments, but is well loved by parents, teachers and students alike; NOW, THEREFORE, BE IT RESOLVED, that the Town Council of the Town of Tiburon is pleased to recognize Christine Carter for her 12 years of outstanding service to the Reed Union School District on the occasion of her retirement, and wishes she and her family all the best in their future endeavors. PASSED and ADOPTED at a regular meeting of the Tiburon Town Council on May 19, 2010, by the following vote: AYES: COUNCILMEMBERS: RICHARD COLLINS, MAYOR ATTEST: Diane Crane Iacopi, Town Clerk TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: Mayor and Members of the Town Council Town Council Meeting May 19, 2010 Agenda Item: 42--l From: Office of the Town Manager Administrative Services Department Subject: Recommendation to Consider the Town's Level of Participation in Marin Clean Energy Program for Electric Power and Remain in the Program at the Light Green Level Reviewed By: 'BACKGROUND The Town of Tiburon is a member of the Marin Energy Authority, the Joint Powers Authority which recently launched the community choice aggregation program entitled "Marin Clean Energy". The Town Council and public have had many public meetings on this topic, so the background of the program's development and what it intends to achieve are not reiterated here. Those wishing additional information about the Marin Clean Energy program may find it in prior staff reports on the Town's website or may wish to peruse the MCE website. The Town of Tiburon has received its electricity from Pacific Gas and Electric, a regulated monopoly power provider, for decades. Earlier this month, on May 7, 2010, PG&E customers in MCE communities, which are in the Phase I grouping of the conversion process and have not "opted out", are now automatically receiving their power from Marin Clean Energy. The Town of Tiburon, in its role as an electricity customer, is in Phase I, so has now been converted to MCE. Phase I customers wishing to do so have 60 days from the May 7 conversion date to opt out of the program without penalty, or until July 7, 2010. After that date opting out is possible but triggers a small penalty. As a power customer, the Town and all electricity consumers in Marin communities that have joined the JPA have a choice whether they wish to remain in the Marin Clean Energy program at the default "Light Green" level, choose the "Deep Green" product option at additional cost, or opt out of the program altogether. This report provides comparative information on these choices and recommends that the Town Council remain in MCE at the Light Green level. FINANCIAL IMPACT Light Green The Light Green product provides 25% minimum renewable energy content. As reported by the California Public Utilities Commission, 15% of electric energy provided by PG&E qualifies as renewable energy. TOWN OF TIBURON PAGE 1 OF 3 MIA% The rate structure adopted by MCE for the Light Green choice is identical to PG&E's rates for the first year of operation. Per its five year contract with its provider, Shell of North America, MCE's pricing will be essentially flat over the following four years. How PG&E's rates may fluctuate over that period is unknown. (It is important to note that PG&E cannot set special rates for Marin County to undercut MCE, but must maintain the same charges system-wide.) If gas prices increase, so will PG&E's pricing; this is due to PG&E's use of gas-fired plants to create electricity and the fact that gas prices are a direct pass-through cost to ratepayers. Conversely, if gas prices fall below their present near-historic low levels, MCE's pricing per the*,~hell contract may be higher than PG&E's. If this occurs, MCE has pledged to keep its pricing "at or below PG&E rates" if it can reasonably do so. This means MCE may need to subsidize rates to keep them below the Shell contract price. Since MCE does not need to return a profit to shareholders, it may have the resources to do this without harm to its overall mission. Because no one knows where rates are headed for PG&E, staff cannot say with assurance whether MCE electricity will be more or less costly. Right now, given the parity of rates for next year, it is reasonable to assume they will be more or less equal over the next five years. There is no guarantee of lower prices with either choice, although the fixed five-year pricing for MCE is attractive. Deep Green The voluntary move up to the Deep Green product would provide energy at a 100% renewable energy content. The premium for this service is $.01 per kilowatt hour. The following table illustrates this financial impact for Tiburon using an average of billings during both winter and summer months. Location Kilowatt Hours Consumed Annually Additional Expense For Deep Green ($0.01 per kWh) Street Lights 124,332 $ 19243.32 Police Building 117,600 15176.00 Corporation Yard 1500 156.00 Shoreline Park Lights 9,228 92.28 Fountain Plaza 31,099 311.00 Town Hall 1285640 19286.00 Totals 4269499 4.58 $4926 The Town currently budgets $64,800 for PG&E costs. This figure includes natural gas, which staff estimates costs approximately $4,000 per year. This indicates an approximate increase for the electricity bill of about 7% under the Deep Green option. This result is comparable to that determined by other cities contemplating the Deep Green option. It is important to note that if the Town remains in MCE at the Light Green level, it may opt into Deep Green at any time it wishes in the future. Opt Out The Town may opt out of MCE without penalty until July 7, 2010. After this free opt-out period, MCE will charge a $25 exit fee per meter (Tiburon has five meters) to return to PG&E. If necessary, a cost recovery charge to prevent shifting of costs for long-term power commitments to remaining program customers may also be added. This cost would only be added if the average cost to procure power is higher than the market price for power at that time. If the City were to return to PG&E, returning back to MCE would be prohibited for a period of three years under PG&E rules and PG&E would also impose its own exit fee and cost recovery fee. f.E If the Town opts out at this time and wishes to join the MCE program in the future, PG&E will impose exit fees based on a complex formula set by the California Public Utilities Commission and changed with some frequency. We do not have an estimate of this cost at this time. DISCUSSION The Town has been through a long process of investigation and evaluation as part of its decision to participate in Marin Clean Energy. In doing so staff, and we believe the Town Council, has become convinced of the worthiness of the MCE mission, the viability of its business model, and the strength of the tax-payer protections afforded by the contract which insulates the financial affairs of MCE from its member agencies. Staff believes it is logical and consistent for the Town, as rate-payers, to stick with MCE, especially since the Light Green option permits this at no likely additional cost. Opting out would be an inconsistent choice and one that sends the message to other potential MCE customers that the Town does not find the MCE model compelling in either its purpose or its construct. The Town Council may wish to consider the Deep Green option, but we do not recommend it at this time. Tiburon is faced with a difficult budget this year, making the extra cost, while modest, hard to justify in that context. We also make this recommendation because there is no urgency to go Deep Green. Staff recommends the Town remain a customer at the Light Green level and consider upping its participation to Deep Green after the budget future has come into clearer focus and key revenues have reversed their decline. RECOMMENDATION Staff recommends that the Town Council: Move to remain in the Marin Clean Energy program at the Light Green level. Prepared By: Peggy Curran, Town Manager Heidi Bigall, Director of Administrative Services To: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Town Council Meeting May 19, 2010 Agenda Item: From: Community Development Department Subject: 90 Via Los Altos; File #31001; Request to Amend the La Cresta Precise Plan (PD #11) to Create a New Landscape Envelope; Mitch and Pamela McCullough, Owners; David Schwartz, Applicant; Assessor's Parcel Nos. 034-330-43, & 44 Reviewed By: PROJECT DATA Address: Assessor's Parcel Numbers: File Number: Lot Size: Zoning: Precise Plan: 90 Via Los Altos 034-330-43 & 44 31001 39,202 square feet RPD (Residential Planned Development) La Cresta Precise Plan (PD #11) General Plan: ML (Medium Low Density Residential) Current Use: Single-Family Residential Owners: Mitch and Pamela McCullough Applicant: David Schwartz BACKGROUND The project is the proposed amendment to a precise plan (the La Cresta Precise Plan) for property located at 90 Via Los Altos. The applicant proposes to create a new landscape envelope beyond the existing building envelope on the site. On April 28, 2010, the Planning Commission adopted Resolution No. 2010-08 (Exhibit 3) recommending to the Town Council that the precise plan amendment be approved. PROPOSAL The applicants propose to amend the La Cresta Precise Plan for property located at 90 Via Los Altos. The amendment seeks to create a new landscape envelope beyond the existing building envelope on the site. The applicants have requested this amendment to accommodate an existing and proposed swimming pool, spa, fencing and walls for property, including improvements that have been constructed outside of the approved building envelope. TOWN OF TIBURON PAGE 1 OF 3 To\\n Council MCCtino \ Lly 19, 1010 HISTORY The La Cresta Precise Plan was originally approved in 1981 and established building envelopes for each lot. In 1989, the Town Council adopted Resolution No. 2594 amending the La Cresta Precise Plan to clarify language regarding improvements allowed within and outside the approved building envelopes. Condition No. 11 governing the precise plan now reads as follows: "Unless otherwise approved by the Town of Tiburon, no improvements of any type, including fences, temporary or otherwise, shall be permitted outside the building envelopes, except driveways, retaining walls, and other improvements assebiated with support driveways and decks. In addition, no planting of trees or shrubbery shall be allowed along property boundaries which would have the effect of fencing the property." A single-family dwelling was constlucted on the subject property in the mid-1990's. At that time, portions of a swimming pool, retaining walls and safety fencing were constructed outside the approved building envelope for this lot, contrary to the location of these improvements shown on approved Design Review plans within the building envelope. The discrepancy was apparently not noticed during the final inspection of the new home. ANALYSIS Proiect Desian The rear yard of the property at 90 Via Los Altos is well screened from the neighboring homes at 88 & 92 Via Los Altos. The lower portion of the site is heavily wooded, creating almost total privacy for the rear of this residence. The applicants propose to create a new landscape envelope to the rear of the approved building envelope for this lot. A new swimming pool and spa would be constructed closer to the rear of the house than the existing pool and spa. Most of the pool and spa would be situated within the approved building envelope, with portions extending into the proposed landscape envelope. A series of retaining walls would support the pool area and create a new level lawn area below the pool. Safety fencing and railings for the pool and lawn area would extend along the side property lines and the rear of the landscape envelope. The extent of the proposed landscape envelope would generally match the extent of similar landscape improvements on the adjacent lots at 88 & 92 Via Los Altos and would be consistent with the development pattern in the vicinity. The heavily wooded nature of the lower portion of the lot, which would remain outside the landscape envelope, would screen the proposed improvements from any downhill residences. REVIEW BY THE PLANNING COMMISSION The Planning Commission held a public hearing on this application at its April 28, 2010 meeting. The Planning Commission voted 3-0 to recommend the application for approval as submitted, finding that it was in conformance with the overall intent of the La Crests Precise Plan and the TOWN OF TIBURON PAGE 2 OF 3 Tiburon General Plan. There was no opposition to the application and the applicants submitted letters of support from the adjacent property owners at 88 & 92 Via Los Altos. ENVIRONMENTAL REVIEW Staff has preliminarily determined that the subject application is categorically exempt from the requirements of CEQA per Section 15301 of the CEQA Guidelines. RECOMMENDATION Staff recommends that the Town Council: 1. Hold a public hearing on this item 2. Adopt the draft resolution (Exhibit 1) approving the application EXHIBITS 1. Draft Resolution 2. Application form and supplemental materials 3. Planning Commission Resolution No. 2010-08 4. Letters from owners of 88 & 92 Via Los Altos 5. Submitted plans Prepared By: Daniel M. Watrous, Planning Manager ,e.k \sharedWdministration\Town Council\Staff Reports\20I May 19 DRAFTS\90 Via Los Altos.report.doc TOWN OF TIBURON PAGE 3 OF 3 RECORDING REQUESTED RETURN TO: TOWN CLERK TOWN OF TIBURON 1505 TIBURON BOULEVARD TIBURON, CA 94920 RESOLUTION NO. (Draft)-2010 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIDT~RON APPROVING AN AMENDMENT TO THE LA CRESTA PRECISE PLAN (PD #11) TO CREATE A NEW LANDSCAPE ENVELOPE FOR PROPERTY LOCATED AT 90 VIA LOS ALTOS r. ASSESSOR PARCEL NOS. 034-330-43 & 44 WHEREAS, on April 28, 2010 the Planning Commission held a public hearing to consider the approval of amendment to the La Cresta Precise Plan (PD #11) to create a new landscape envelope on property located at 90 Via Los Altos; and WHEREAS, after receiving public testimony and considering the application at that hearing, the Planning Commission adopted Resolution No. 2010-08 recommending to the Town Council that the Precise Plan Amendment be approved; and WHEREAS, on May 19, 2010, the Town Council held a public hearing on this application and after hearing all testimony and reviewing all documents on the record, the Town Council concurred with the findings made by the Planning Commission and found that the proposed precise plan amendment to create a new landscape envelope for the property at 90 Via Los Altos would be consistent with the overall intention of the La Cresta Precise Plan and the policies contained within the Tiburon General Plan. NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby approve the requested amendment to the La Cresta Precise Plan, subject to the following conditions: 1. The landscape envelope for the property at 90 Via Los Altos is hereby created as reflected on the Landscape Master Plan, prepared by Schwartz and Associates Landscape Architecture, dated February 22, 2010 (one sheet), as shown in plans on file in File #31001 with the Tiburon Planning Division, at Tiburon Town Hall. 2. The landscape envelope is for swimming pools, spas, fencing and walls that do not exceed six feet (6') in height, arbors not exceeding fifteen feet (15') in height, landscape improvements, rainwater catchment tanks, solar panels, decks and stairways. Town Council Resolution No. (Draft)-2010 0511912010 EXHIBIT NO. 3. This approval shall in no way alter other provisions of the La Cresta Precise Plan not specifically described herein. PASSED AND ADOPTED at a regular meeting of the Town Council on May 19, 2010, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: y¢.k RICHARD COLLINS, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town Council Resolution No. (Draft)-2010 0511912010 2 EXHIBIT NO.I P ' t `s TOWN OF TIBURON LAND DEVELOPMENT APPLICATION TYPE OF APPLICATION O Conditional Use Permit O Design Review (DRB) O Tentative Subdivision Map • Precise Development Plan O Design Review (Staff level) O Final Subdivision Map O Secondary Dwelling Unit O Variance O Parcel Map O Zoning Text Amendment O Floor Area Exception O Lot Line Adjustment O Rezoning or Prezoning O Tidelands Permit O CoMominium Use Permit O General Plan Amendment O Sign Permit O Certificate of Compliance O Change of Address O Tree Permit O Other APPLICANT REQUIRED INFORMATION SITE ADDRESS: 70 VIA L.eaS ACY05 PROPERTY SIZE: PARCEL NUMBER: 03'ff -330 - `rf 3 ( ZONING:_Jf p,p OWNER OF PROPERTY: f!1/ j~/~ 114'i4kiIja-u- AcC~iGlv~X.c~ MAILING ADDRESS: IT& (11A LOS A1.,1 W CITY/STATE/ZIP_~~ PHONE NUMBER: FAX APPLICANT: (Other than Property Owner) ©#qV 0 MAILING ADDRESS: ?20 G 5T,7Ri~r~ PHONE NUMBER: 4(5-- 30 Z - 35 3 ARCHITECT/DESIGNER/ENGINEER: MAILING ADDRESS: 220 L- FAX yfs • , jk/ - Y! YS Zbe-s'7, NJ Please indicate with an asterisk persons to whom Town correspondence should be sent. BRIEF DESCRIPTION OF PROPOSED PROJECT (attach separate sheet if needed): XHIBIT NO. 2- I, the undersigned owner (or authorized agent) of the property herein described, hereby make application for approval of the plans submitted and made a part of this application in accordance with the provisions of the Town Municipal Code, and I hereby certify that the information given is true and correct to the best of my knowledge and belief. I understand that the requested approval is for my benefit (or that of my principal). Therefore, if the Town grants the approval, with or without conditions, and that action is challenged by a third party, I will be responsible for defending against this challenge. I therefore agree to accept this responsibility for defense at the request of the Town and also agree to defend, indemnify and hold the Town harmless from any costs, claims or liabilities arising from the approval, including, without limitation, any award of attorney's feesat migkt result ftorr~the third party challenge. *Signature:r~\ Date: *lf other than owner, must have letter from owner DO NOT WRITE BELOW THIS LINE DEPARTMENTAL PROCESSING INFORMATION Application No.: 31 o0 I GP Designation Fee Deposit p , 0 Date Received: o2ly /U Deceived By: Receipt # y Date Deemed Complet : `(b(JV By: lActinq Body: Action: Date: (Conditions of Approval or Comments: Resolution or Ordinance* - Precise Plan Amendment submittal 90 Via Los Altos Inc s: 4~ 1 , he a 1.Owners: Mitchell McCullough Pamela McCullough 2. Representative to owner • Authorized b Mitchell McCullough Pamela McCullough C pQ Ok David Schwartz 220 East Strawberry Drive Mill Valley, Ca 94941 oavid Schwartz to act as our agent cr_ Age 'q k 4. Legal description of property Attached 5. Title report Attached 6. Current improvements Attached in Narrative 7. Specific list of precise plan changes Attached in Narrative 8. Fees -Check 9. Environmental Data,Wrm Attached ItYk 10. Land Development form attached 11.3 5 sets of application EXHIBIT NO. 2- Precise Plan Amendment Narrative 90 Via Los Altos Current Improvements Single family home, Driveway, Landscape Terraces, Patios, pool, Spa, Lawn and Plantings. Proposed Changes Change the eastern end of the building envelope to expanded landscape building envelope to contain the existing and proposed landscape. The existing approved landscape is outside of the building envelope. All new and proposed landscape improvements will be contained within the reconfigured Landscape building envelope. The eastern edge of the landscape building envelope will be 154 feet from the rear property line on the north side and 98 feet from the rear property line on the south side. PRECISE PLAN AMENDMENT NARATIVE La Cresta. Unit 2 Subdivision Lot 23 - 90 Via Los Altos We are proposing to change the east side building envelope, for the purpose of redesigning and reconfiguring the swimming pool to relate more harmoniously to the site and the architecture and pulling the existing pool and retaining wall closer to the house (24') and further from the neighbors view corridor. Presently the building envelope angles outward at a 32 degree angle rather than parallel to the street and residence, creating an awkward triangle shaped rear yard, rather than running parallel rear of the house as is the case in most lot configurations. The angle of the building envelop and the existing retaining wall forces any planned structures i.e. walls or swimming pool, terrace, to be located at an awkward angle towards the south side of the rear yard, effectively reducing the usable rear yard. In 2002 a Landscape Plan was approved and the landscape was installed outside of the building envelope. This year the property was purchased and the new owners would like to install a pool parallel and closer to the house. We are proposing an amendment to the La Cresta Unit 2 Subdivision Precise Plan that would change the rear easterly building envelope. The pool area would be closer to the house and parallel and widen the Neighbors view corridor from what exists. The built structures (wall and railing) would also be pulled 24 feet closer to the residence at 90 Via Los Altos. EXHIBIT NO. Z We feel that the original building envelope was created without the full understanding of how placement of the residence might impact the reasonable use of the rear yard space. There are neighbors adjacent to 90 Via Los Altos. The Tremelling residence to the North at 92 via Los Altos and the Barretto residence to the South. The sloping area to the east is owned by the McCullough family and a portion of it is designated open space. . Attached please see the neighbors letters of support. 404 The resulting landscape would not create any additional visual impact. Attached documents Description of permitted improvements within the new building envelope. Existing and Proposed Landscape and building envelopes La Cresta Unit 2 Subdivision Lot 23 - 90 Via Los Altos with current improvements Landscape Master Plan rear yard Subdivision plan with Proposed landscape envelope. Letter from Tremelling Letter from Barretto Thank you for your consideration David Schwartz EXHIBIT NO. Z 90 Via Los Altos Precise Plan Amendment March S, 2010 Description of Permitted improvements within the new landscape building Envelope. On grade patios Swimming pool and spa Retaining walls for patio and pool Guard rails and safety fencing Deck over patio (within original building envelope) Arbors Planting Irrigation Stairs and paths Low voltage down lighting Graded terraces Vegetable and herb gardens Lawn and turf areas Low landscape rock walls Rain water catchment tanks Solar panels ti00l EXHIBIT N0. 5 0~ 5 RESOLUTION NO. 2010-08 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON RECOMMENDING TO THE TOWN COUNCIL APPROVAL OF AN AMENDMENT TO THE LA CRESTA PRECISE PLAN (PD #11) FOR PROPERTY LOCATED AT 90 VIA LOS ALTOS ASSESSOR PARCEL NOS. 034-330-43 & 44 WHEREAS, the Planning Commission of the Town of Tiburon does resold {e as follows: Section 1. Findings. A. The Town has received and considered an application (File #31001) filed by Mitch and Pamela McCullough for an amendment to the La Cresta Precise Plan (PD #11) to create a new landscape envelope for the property developed with an existing single-family residence at 90 Via Los Altos. The application consists of the following: 1. Application form and supplemental materials, dated February 4, 2010 2. Site Plan and Building Envelope Plans, dated March 9, 2010 B. The Planning Commission held a duly-noticed public hearing on April 28, 2010, and heard and considered testimony from interested persons. C. The Planning Commission has found that the project is exempt from the requirements of the California Environmental Quality Act per Section 15301 of the CEQA Guidelines. D. The Planning Commission finds, based upon application materials and analysis presented in the April 28, 2010 Staff Report, as well as visits to the site and testimony received from the applicant, that the project is generally consistent with the overall intentions of the La Cresta Precise Plan. The requested landscape envelope would allow the applicants to develop more usable recreational space to the rear of their house without compromising the existing visual separation between this property and other homes downhill from the site. E. The Planning Commission finds the project to be consistent with the goals and policies of the Tiburon General Plan. Land Use Element Policy LU-13 states that "Neighborhood character, which is defined by the predominant architectural styles, type of buildings, building heights, mass, setbacks, landscaping, and natural characteristics, shall be of material consideration and preserved in all construction projects, including remodels and additions, to the maximum extent feasible." As noted previously, the proposed landscape envelope would appear to be consistent with the intent of the La Cresta Precise Plan to retain the open visual appearance of the site. TIBURON PLANNING COMMISSION RESOLUTION NO. 2010-08 APRIL 28, 2010 EXHIBIT NO-_3- Section 2. Approval. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission recommends approval of the amended building envelope for 90 Via Los Altos of the La Cresta Precise Plan (PD #11) to the Town Council, subject to the following conditions: 1. The landscape envelope for the property at 90 Via Los Altos is hereby created as reflected on the Landscape Master Plan, prepared by Schwartz and Associates Landscape Architecture, dated February 22, 2010 (one sheet), as shown in plans on file in File #31001 with the Tiburon Planning Division, at Tiburon Town Hall. 2. This approval shall in no way alter other provisions of the La Cresta Precise Plan not specifically described herein. PASSED AND ADOPTED'at a regular meeting of the Tiburon Planning Commission on April 28, 2010, by the following vote: AYES: COMMISSIONERS: FRYMIER, CORCORAN AND DOYLE NOES: COMMISSIONERS: NONE ABSENT: COMMISSIONERS: KUNZWEILER AND TOLLINI CATHY FRYMIER, VICE-CHAIRMAN Tiburon Planning Commission ATTEST: DANIEL M. WATROUS, SECRETARY S:Planning/Planning Commission/Resolutions/2010/2010-08; 90 Via Los Altos PP amendment TIBURON PLANNING COMMISSION RESOLUTION NO. 2010-08 APRIL 28, 2010 EXHIBIT NO. 3 FEB 2, To the Town of Tiburon, 25 February 2010 1 have reviewed the plans for the McCullough rear yard landscape and proposal for the Precise plan amendment to meconfigurc the rear yard }portion of the building cnvelope date 2-4-2010 and support the McCulloughs proposal. jOlt We hope that you can approve this plan and the Mc('uilougbs can move forarard to renovate their landscape as soon as possible. r. Tliank you Eddie/Ana Barrett Datfi0 9 C A) EXHIBIT NO. -4 1 6~z FEB F F Fcbraaarv 20 10 'r o the "l'own of Tiburon, l have reviewed the plans for tli McCullough rear yard landsc•api~ and proposal for the. Prec-ise plan Amendment to reconfigure the rear yard }x)rtion of'the building envelope bate: 2-4.2010 and suppon the. McC tIllough's, proposal. We hope that you cm approve this plan and the McCulloughs; can moo fort;yard to renovatc their landscape as s(x)n as possible. 'I`Faank you Bob Tr+ernellinb l /q:z VIA (ea A 1-6s- -_HIBIT N(. 4? 2-_ d i~ Z Ea s e vn~n t / LOT BUILD//VG MAX. BLD ENVELOPE 5/ZE L IMI BL D G. L//'I/T ' S~` 2 ~ NQ AREA (sq. FT.~J (5Q. F~) FT) ~ /0, 33 6 5, 9 ~O 1770 23 ~ 0/6 x,970 9 70 ~ ~ 1 ~ . 7/ Z 500 \ \ c~ Pew 2 5 l 3 6 & ~ b, 500 . 9a~ ~ ~ - ` ~ SPA ~ z 6 f o~ 6, 500 1~~ p 2 3 ~ moo. , -~-p'RoP~,EO [~_~T ~ ' ~ L~* 3~~+~e qtr-p~~ ` A ~ .cam ~ f~.~ . -rJB~ Maximum fevation of~. • ~ ~ ~~li/~%I~~ S~i-erefure R) e'"t ~ ~IIY2~0~~ ~ . 4 \ ~rt~ ca1 Da m.: ~ ~ ~ l~~ ~t~P~ - \ _Oi f i - O r cj ~ ~ ~ O ~ - - - ~ ~ ~ - Ufa U ~8 ! ~t 0 V t r4, ~S Ar1..7b5 . < 3a -o F~30` v r , I i { y . - r/ ; ;ew,v, B~aauga a ug 'XCE 161'.1' r10.F1~71 R s ,r-r _ N 89° 4?' l8" E 92.4-t' 40.0' I , ~ , , ,3a - `:moo. I w s8: n ''.P~ I 1 •7•me ' s, I NOTES i1 s ,p\ i ~ v ~ i). 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O e 9 ~ REC ED IN B ~ I B ORD OOK 20 OF MAPS, AT PAGE S4, t F I ~ , o ` MARIN COUNTY RECORDS } ' " ~p P' T t• sy, I OP1N OF TIDURON ~ `9 e ~ j'~,p MARIN COUNTY CALIFORNIA G` Q; „ FEBRUARY 2010 , SURVEY No. 95S I ~ - y4. f ~j r i PBFPARED BY 4 NN O tq . ~ o P ~ mrn . ' PHII.LIP A DANSKIN & ASSOCIATES I I fl ~ , a u.,,.an/ S} IiWDSUR ~ 1 , V I ~ ~ vEY'oB , , I~ soNOhucA~o~A ~ ~ o- uu pD1f 97a-uw ~I g'. ~ ~ 1 ~ I REVISIONS: REVISIONS: I / 105-0409 NL 05-04-09 NL f a I GENERALNOTES S ~ 1 qb m rye" ~ a Planting Specifications a 1 ~ ~ ° r ~ I Tree holes shall be no hi er th exi C~ h I gh an sting sod height of contamer W / ~ ~,.J y I and two times the width of the container. Trees shall be planted ~M ~ with the top of the root crown slightly higher than fi77ished soil ~ aW ~ S ~ ~ ~ ~ 30 ~ elevation. 5 Wit: ; ; ~ ~ ~ N~0 Z, R r Unless specified by nursery, planting ntix shall be amended loam o~ Zu ~ a ~ ~ I ASSORTED RUI zH `m S / I (eneral landsca int; mix. 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The lengthy history of the Del Mar undergrounding project and assessment districts is well- known to the Council and community, thus this report will restate only the most essential facts. After five years of litigation, the Town and plaintiffs resolved their outstanding differences in a settlement agreement approved by the Marin County Superior Court on March 23, 2010. The actions before the Council tonight reflect the outcome of the litigation, as follows: 1. Resolution 1: The Court of Appeals ruled that the supplemental assessment district, formed on May 8, 2006, was invalid. Accordingly, this draft resolution, attached as Exhibit 1 would abandon that district and discharge its district's liens. 2. Resolution 2: The settlement agreement obliges Town to remove the Hacienda and Hawthorne parcels from the original undergrounding district and refund prior payments to the parcel owners with interest. The draft resolution attached as Exhibit 2 will direct the actions necessary to comply with this commitment. 3. Resolution 3: The Court's invalidation of the supplemental assessment district creates a significant gap in the funding needed to construct the project. The draft resolution in Exhibit 3 would appoint the consultants needed to form a new supplemental assessment district. In addition, the resolution would waive the application of the Town's Undergrounding Policy, because the new district is Town-initiated and because this will be the third time the district property owners have been through the process. ANALYSIS The first two resolutions are essentially house-keeping measures. The Court of Appeals in Bonander v. Town of Tiburon ("Bonander IT) directed the Marin Superior Court to issue an order vacating the resolution that established the 2006 supplemental district and invalidating the assessments imposed by that resolution. The Town has not yet received that order, but there is no advantage to deferring the action that the order will require. The Resolution to Abandon the 2006 TOWN OF TIBURON PAGE 1 OF 3 z z. , Supplemental Assessment District will proactively comply with the court order by effectively terminating that district. The second resolution, for Change of Proceedings, implements the settlement agreement with the Bonander I plaintiffs. The resolution will remove the parcels in the Hacienda and Hawthorne zones by directing the following actions: (1) revising the district boundary to exclude those parcels; (2) reducing the project scope to reflect the change in district boundary; (3) transferring the proceeds of the assessments on the deleted parcels from the project and reserve funds to the redemption fund to redeem those bonds secured by assessments on the deleted parce4ls; and (4) reducing the assessments on the deleted parcels to zero and refunding all payments om the owners of those parcels. The third resolution will start the process of forming a new supplemental assessment district. The resolution appoints the Town's team of consultants, as follows: • Bond Counsel - Meyers, Nave, Riback, Silver & Wilson, a Professional Law Corporation • District Engineer - NBS Financial • Underwriter - Wulff, Hansen & Co. The third resolution will also exempt the new supplemental assessment district from the Town's 2006 Undergrounding Policy. The Town developed the policy to guide undergrounding proponents in petitioning the Town to begin the assessment district process and to ensure that affected property owners had ample information and opportunities to provide input regarding the proposed district. The first concern does not apply here, because the Town is initiating the district itself, to close the financing gap left by the Del Mar litigation. The second is of lesser concern than normal because the majority of property owners in the district have already gone through the assessment district process for the project twice in the past five years. Given those facts, Town staff believes that the noticed hearing required by statute, supplemented by two advisory meetings between the property owners and consultant team, will be sufficient. If the Council approves the third resolution, the next steps in forming the proposed new district are: 1. May 25th: The consultant team will hold the first advisory meeting with interested persons in the district. 2. June 2"a: Before the regular Council meeting, the consultant team will hold the second advisory meeting with interested persons in the district. 3. June 2"a: The Council will consider adopting: (a) resolution approve district petition and boundary map; (b) formal Resolution of Intention; (c) resolution preliminarily approving the Preliminary Engineer's Report, setting the public hearing and authorizing mailing of notice of hearing and assessment ballots. 4. June 4th: Last day to complete mailing ballots and notices. 5. July 21st: Public Council Hearing, open and tally ballots and, if no majority protest, adopt resolution approving final engineer's report and levying supplemental assessments. 77 FINANCIAL IMPACT • Resolution Abandoning Proceedings: None. • Resolution Ordering Change of Proceedings: Approximately $1,116,222 to redeem the bonds and $508,500 to repay owners of the Deleted Parcels at 5% compound interest. • Resolution Declaring Intention and Appointing Consultants: Approximately $43,000 for bond counsel, $13,500 for district engineer and $58, 285 for the district underwriter. Note that if the Town successfully forms the district, the district will reimburse the Town for these expenses. If the Town does not successfully form the district, there would be no payment due to the underwriter and the maximum bond counsel cost would be $10,000. RECOMMENDATION Staff recommends that the Town Couhcil: 1. Move to approve the attached Resolutions: a) Abandoning Proceedings b) Ordering Change of Proceedings c) Declaring Intention and Appointing Consultants Exhibits: 1. Draft Resolution Abandoning Proceedings 2. Draft Resolution Ordering Change of Proceedings 3. Draft Resolution Declaring Intention and Appointing Consultants Prepared By: Ann R. Danforth, Town Attorney ' The Council should note that these numbers to do not include the non-reimbursable bond counsel costs of abandoning the 2006 Supplemental District and reducin the size of the 2005 Ori final District $5,000 . RESOLUTION NO. RESOLUTION ABANDONING PROCEEDINGS Town of Tiburon Del Mar Valley Utility Undergrounding Supplemental Assessment District WHEREAS, by resolution adopted on May 8, 2006, this Town Council (this "Town Council") of the Town of Tiburon (the "Town") formed the Del M0 Valley Utility Undergrounding Supplemental Assessment District (the "Original Supplemental District"), approved the Final Engineer's Report respecting the Original Supplemental District (the "Final Report"), and levied supplemental assessments (the "Original Supplemental Assessments") upon the designated parcels in accordance with the Final Report; and r WHEREAS, formation of the Original Supplemental District was preceded by formation by the Town on May 18, 2005, of its Del Mar Valley Utility Undergrounding Assessment District (the "Original District"), with the boundaries of the Original District and the Original Supplemental District being the same and with the utility undergrounding project (the "Project") which is the subject of the Original District and the Original Supplemental District being the same, generally described as the conversion to underground locations of existing overhead utility facilities within said boundary; and WHEREAS, by litigation initiated on June 16, 2005, the validity of the assessments levied for the Original District (the "Original Assessments") was challenged, which litigation has now been settled in March, 2010, by a court-approved litigation settlement agreement (the "Settlement Agreement"), which led to entry of a Judgment by Stipulation on March 23, 2010, thereby concluding the litigation respecting the Original District and the Original Assessments; and WHEREAS, formation of the Original Supplemental District and levy of the Original Supplemental Assessments became necessary when the best construction bid for the Project came in on March 6, 2006, at a bid amount significantly higher than estimated in the engineer's report for the Original District, on the basis of which the amounts of the Original Assessments were calculated, with the result that levy of the Original Supplemental Assessments became necessary in order to fully fund the Project; and WHEREAS, on May 18, 2006, the Town initiated a validation action in the Marin County Superior Court (the "Superior Court") for the purpose of obtaining judicial validation of the Original Supplemental Assessments pursuant to the provisions of Sections 860 through 870.5 of the California Code of Civil Procedure (the "Validation Proceedings"); and WHEREAS, following a favorable ruling by the Superior Court in the Validation Proceedings, upholding the validity of the Original Supplemental Assessments, the First District Court of Appeals, by its opinion issued on December 31, 2009 (the "DCA Decision"), reversed the Superior Court and ruled the Original Supplemental Assessments invalid; and WHEREAS, rather than pursuing an appeal of the DCA Decision to the California State Supreme Court, at substantial additional expense to the Town and entailing further substantial delay in the implementation of the reduced Project (as described in subparagraph (a) immediately below), this Town Council finds and determines that it is in the best interest of the Town, its inhabitants and the owners of the parcels within the Original District and the Original Supplemental District to pursue implementation of an alternative program consisting of three components, as follows: (a) modification of the Original District, in conformity with the Settlement Agreement, to (i) revise the boundary of the Original District to exclude those parcels listed in Exhibit B of the Settlement Agreement and identified therein as the "Deleted Parcels" (thereby creating the "Reformed Original District"), (ii) reduce the scope of the Project and the related estimated Project cost to conform to the reduced area of the Reformed Original District, (iii) reduce to zero the amount of the Original Assessments which were levied on the Deleted Parcels, and (iv) refund to the owners of the Deleted Parcels the amounts paid on account of the Original Assessments, with interest to be calculated in accordance with the Settlement Agreement; (b) abandonment of the Original Supplemental District, which is the purpose of this resolution; and (c) formation of a new supplemental district, to be known as the "Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District" (the "New Supplemental District"), with boundaries conforming to the Reformed Original District and with the amount of the proposed new supplemental assessments (the "New Supplemental Assessments") being calculated to supplement the moneys which will remain available for the Project following the refunds described in subparagraph (a) above to the owners of the Deleted Parcels to fully fund the Project, as reduced in scope, and to pay the incidental expenses relating to the New Supplemental District and the financing costs of the subordinate lien limited obligation improvement bonds (the "Subordinate Bonds") to be issued and sold on the security of the New Supplemental Assessments which remain unpaid following a cash payment period during which owners of the parcels upon which a New Supplemental Assessment is levied may prepay, without interest, and discharge the lien of the New Supplemental Assessment prior to issuance of the Subordinate Bonds; and WHEREAS, by this resolution this Town Council wishes to abandon the proceedings for the Original Supplemental District and to provide for the recordation of a certified copy of this resolution with the Marin County Recorder in accordance with Section 3117 of the California Streets and Highways Code, together with a Notice of Discharge of Supplemental Assessment Lien, so as to discharge the lien of the Original Supplemental Assessments; NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON HEREBY FINDS, DETERMINES AND RESOLVES as follows: 1. The foregoing recitals are true and correct, and this Town Council hereby expressly so finds and determines. abandoned. 2. The proceedings for the Original Supplemental District are hereby 3. Pursuant to Section 3117 of the California Streets and Highways Code, the Town Clerk is hereby authorized and directed to provide for the recording of a certified copy of this resolution with the Marin County Recorder. As further specified by Section 3117, the following information pertains to the proceedings respecting the Original Supplemental District: k (a) The date of adoption of this resolution is May 19;'*2010. (b) The date of adoption of the resolution of intention for the Original Supplemental District was February 1, 2006. r (c) The boundary map for the Original Supplemental District was recorded on April 21, 2006, at Book 2006 of Maps, at page 096, as Document No. 2006-0025334 in the official records of the Marin County Recorder. (d) The Assessment Diagram for the Original Supplemental District was recorded on May 22, 2006, at Book 2006 of Maps, at page 119, as Document No. 2006-0032192 in the official records of the Marin County Recorder. (e) The Notice of Assessment for the Original Supplemental District was recorded on May 22, 2006, as Document No. 2006-0032193 in the official records of the Marin County Recorder. By the recordation of this resolution, the lien of the respective Original Supplemental Assessments is hereby released and discharged and shall be of no further force or effect. 4. This resolution shall take effect immediately upon adoption by this Town Council. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, State of California, held this 19th day of May, 2010, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: RICHARD COLLINS, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK RESOLUTION NO. RESOLUTION ORDERING CHANGE OF PROCEEDINGS TO THE DEL MAR VALLEY UTILITY UNDERGROUNDING ASSESSMENT DISTRICT (THE "ORIGINAL DISTRICT") TO REDUCE SCOPE OF UNDERGROUNDING PROJECT, DELETE PARCELS NOT BENEFITTED BY THE REDUCED PROJECT, REDUCE ASSESSMENTS ON DELETED PARCELS TO ZERO, AND ORDER A REFUND, WITH INTEREST, TO THE OWNERS OF THE DELETED PARCELS OF AMOUNTS PREVIOUSLY PAID ON ACCOUNT OF THE ORIGINAL ASSESSMENTS LEVIED ON THOSE PARCELS, ALL IN CONFORMITY WITH AND FOR THE PURPOSE OF IMPLEMENTING THE TERMS AND CONDITIONS OF THE COURT-APPROVED LITIGATION SETTLEMENT AGREEMENT PERTAINING TO THE ORIGINAL DISTRICT r Town of Tiburon Del Mar Valley Utility Undergrounding Assessment District WHEREAS, by resolution adopted on May 18, 2005, this Town Council (this "Town Council") of the Town of Tiburon (the "Town") formed the Del Mar Valley Utility Undergrounding Assessment District (the "Original District"), approved the Final Engineer's Report respecting the Original District (the "Final Report"), and levied assessments (the "Original Assessments") upon the designated parcels within the Original District in accordance with the Final Report; and WHEREAS, the purpose of the Original District was to provide financing for a proposed project (the "Project") consisting of the conversion to underground locations of the existing overhead utility facilities within the Original District and related appurtenant work; and WHEREAS, by litigation initiated on June 16, 2005, the validity of the assessments levied for the Original District (the "Original Assessments") was challenged, which litigation has now been settled in March, 2010, by a court-approved litigation settlement agreement (the "Settlement Agreement"), which led to entry of a Judgment by Stipulation on March 23, 2010, thereby concluding the litigation respecting the Original District and the Original Assessments; and WHEREAS, following formation of the Original District and the completion of plans, specification and bid documents for the Project, the Town solicited sealed bids for the Project; and, on March 6, 2006, the scheduled bid opening date, the Town received construction bids and determined that the best bid received was for an amount significantly higher than estimated in the Final Report, on the basis of which the amounts of the Original Assessments were calculated, with the result that levy of supplemental assessments became necessary in order to fully fund the Project; and WHEREAS, by resolution adopted on May 8, 2006, this Town Council formed the Del Mar Valley Utility Undergrounding Supplemental Assessment District (the "Original Supplemental District"), approved the Engineer's Report respecting the Original Supplemental District (the "Supplemental Report"), and levied supplemental assessments (the "Original Supplemental Assessments") upon the designated parcels in accordance with the Supplemental Report; and WHEREAS, on May 18, 2006, the Town initiated a validation action in the Marin County Superior Court (the "Superior Court") for the purpose of obtaining judicial validation of the Original Supplemental Assessments pursuant to the provisions of Sections 860 through 870.5 of the California Code of Civil Procedure (the "Validation Proceedings"); and WHEREAS, following a favorable ruling by the Superior Court in the Validation Proceedings, upholding the validity of the Original Supplemental Assessments,-,4he First District Court of Appeals (the "DCA"), by its opinion issued on December 31, 2009 (the "DCA Decision"), reversed the Superior Court and ruled the Original Supplemental Assessments invalid; and r WHEREAS, rather than pursuing an appeal of the DCA Decision to the California State Supreme Court, at substantial additional expense to the Town and entailing further substantial delay in the implementation of the reduced Project (as described in subparagraph (b) immediately below), this Town Council has, by resolution adopted this same date, abandoned the Original Supplemental District and indicated its intention to pursue implementation of an alternative program consisting of three components, as follows: (a) abandonment of the Original Supplemental District; (b) modification of the Original District, in conformity with the Settlement Agreement, by ordering certain changes of proceedings respecting the Original District, which is the purpose of this resolution, to (i) revise the boundary of the Original District to exclude those parcels listed in Exhibit B of the Settlement Agreement and identified therein as the "Deleted Parcels" (thereby creating the "Reformed Original District"), (ii) reduce the scope of the Project and the related estimated Project cost to conform to the reduced area of the Reformed Original District, (iii) reduce to zero the amount of the Original Assessments which were levied on the Deleted Parcels, and (iv) refund to the owners of the Deleted Parcels the amounts paid on account of the Original Assessments, with interest to be calculated in accordance with the Settlement Agreement; and (c) formation of a new supplemental district, to be known as the "Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District" (the "New Supplemental District"), with boundaries conforming to the Reformed Original District and with the amount of the proposed new supplemental assessments (the "New Supplemental Assessments") being calculated to supplement the moneys which will remain available for the Project following the refunds described in subparagraph (a) above to the owners of the Deleted Parcels to fully fund the Project, as reduced in scope, and to pay the incidental expenses relating to the New Supplemental District and the financing costs of the subordinate lien limited obligation improvement bonds (the "New Bonds") to be issued and sold on the security of the New Supplemental Assessments which remain unpaid following a cash payment period during which owners of the parcels upon which a New Supplemental Assessment is levied may prepay, without interest, and discharge the lien of the New Supplemental Assessment prior to issuance of the New Bonds; and WHEREAS, by removing the Deleted Parcels from the Original District, this Town Council avoids retention in the Reformed Original District of any defects similar to those defects that, according to the DCA Decision, caused the DCA to rule that the Original Supplemental Assessments were invalid; and WHEREAS, it is the intention of this Town Council that, except as to the changes ordered by this resolution, the Original District shall remain in full force and effect, to be known as the Reformed Original District, and the Original Assessments which are not being reduced to zero shall remain in full force and effect to secure the original limited obligation improvement bonds (the "Original Bonds") which will remain outstanding in a p incipal amount corresponding to the principal amount of the remaining, unpaid Original Assessments; provided however that, if for any reason, this Town Council is unable to form the proposed New Supplemental District as described above and to issue and sell the New Bonds so as to establish full funding for the Project, as reduced in scope by this resolution, this Town Council reserves the right, as it shall determine in the exercise of its absolute discretion, to abandon the Reformed Original District and to abandon its efforts to implement the Project, as reduced in scope by this resolution, by any lawful means which provides for the redemption of any remaining outstanding Original Bonds and New Bonds, if New Bonds are issued; and WHEREAS, by this resolution this Town Council wishes to order the changes to the Original District summarized above in furtherance of implementing the Settlement Agreement; NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON HEREBY FINDS, DETERMINES AND RESOLVES as follows: 1. The foregoing recitals are true and correct, and this Town Council hereby expressly so finds and determines. 2. This Town Council hereby orders the following change of proceedings to the Original District: (a) The boundary of the Original District is hereby revised to exclude the Deleted Parcels, and the reduced area shall be referred to hereafter in this resolution as the "Reformed Original District." (b) The scope of the Project is hereby ordered reduced, to the fullest extend determined by the City Engineer to be feasible, in consultation with the affected public utilities, and still provide for the conversion to underground locations of the existing overhead utility facilities situated within the Reformed Original District. (c) The proportional Project cost and expense to be funded by proceeds of the Original Assessments which will remain outstanding and by proceeds of sale of the Original Bonds which will remain outstanding (the "Proportional Cost") shall be calculated so as to provide that only moneys representing either cash payments on account of Original Assessments which will remain outstanding or proceeds of sale of Original Bonds which will remain outstanding will remain available to pay for Project cost and expense and to fund the bond reserve fund for the Original Bonds (the "Original Reserve Fund"). The amounts on deposit in the improvement fund for the Original District (the "Original Improvement Fund") in excess of the Proportional Cost shall be transferred to the redemption fund for the Original Bonds (the "Original Redemption Fund") and utilized for the purpose of redeeming or otherwise achieving the cancellation of the portion of the Original Bonds which exceeds the principal amount of the Original Assessments which will remain outstanding. The amount to be withdrawn from the Original Improvement Fund and transferred to the Original Redemption Fund shall bear the same ratio to the total amount then on deposit in the Original Improvement Fund as the principal amount of the Original Assessments initially levied on the Deleted Parcels bears to the total initial principal amount of all of the Original Assessments. Similarly, the amounts on deposit in the Original Reserve Fund which exceed the reduced amount of the "Reserve Requirement," as determined in accordance with Resolution No. 33-2005, adopted by this Town Council on July 13, 2005 (the r "Bond Resolution"), shall be transferred to the Original Redemption Fund and utilized for the same purpose. (d) The Original Assessments levied upon the Deleted Parcels are hereby ordered reduced to zero, and the Town shall refund to the owners of the Deleted Parcels, from any source of funds legally available for such purpose, including but not limited to the amounts to be withdrawn from the Original Improvement Fund and the Original Reserve Fund, all amount previously paid on account of either cash prepayment of Original Assessments prior to issuance of the Original Bonds or on account of annual installment payments of Original Assessments as collected on the Marin County property tax bills. 3. Pursuant to Section 3113 of the California Streets and Highways Code, the Town Clerk is hereby authorized and directed to provide for the preparation and recording in the official records of the Marin County Recorder of an amended boundary map, showing a boundary conforming to the Reformed Original District, and otherwise conforming to the provisions of said Section 3113. 4. Pursuant to Section 3114.3 of the California Streets and Highways Code, the Town Clerk is hereby authorized and directed to provide for the recording in the official records of the Marin County Recorder of a Notice of Discharge of Assessment Liens with respect to the Deleted Parcels. 5. This resolution shall take effect immediately upon adoption by this Town Council. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, State of California, held this 19th day of May, 2010, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: RICHARD COLLINS, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK RESOLUTION NO. RESOLUTION PRELIMINARILY DECLARING INTENTION TO FORM THE DEL MAR VALLEY 2010 SUPPLEMENTAL UTILITY UNDERGROUNDING ASSESSMENT DISTRICT, AS A COMPONENT OF A PROPOSED UTILITY UNDERGROUNDING PROGRAM FOR A PORTION OF DEL MAR VALLEY, AND APPOINTING BOND COUNSEL, DISTRICT ENGINEER AND UNDERWRITER Town of Tiburon { Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District WHEREAS, by resolution adopted on May 18, 2005, this Town Council (this "Town Council") of the Town of Tiburon (the "Town") formed the Del Mar Valley Utility Undergrounding Assessment District (the "Original District"), approved the Final Engineer's Report respecting the Original District (the "Final Report"), and levied assessments (the "Original Assessments") upon the designated parcels within the Original District in accordance with the Final Report; and WHEREAS, the purpose of the Original District was to provide financing for a proposed project (the "Project") consisting of the conversion to underground locations of the existing overhead utility facilities within the Original District and related appurtenant work; and WHEREAS, by litigation initiated on June 16, 2005, the validity of the assessments levied for the Original District (the "Original Assessments") was challenged, which litigation has now been settled in March, 2010, by a court-approved litigation settlement agreement (the "Settlement Agreement"), which led to entry of a Judgment by Stipulation on March 23, 2010, thereby concluding the litigation respecting the Original District and the Original Assessments; and WHEREAS, following formation of the Original District and the completion of plans, specification and bid documents for the Project, the Town solicited sealed bids for the Project; and, on March 6, 2006, the scheduled bid opening date, the Town received construction bids and determined that the best bid received was for an amount significantly higher than estimated in the Final Report, on the basis of which the amounts of the Original Assessments were calculated, with the result that levy of supplemental assessments became necessary in order to fully fund the Project; and WHEREAS, by resolution adopted on May 8, 2006, this Town Council formed the Del Mar Valley Utility Undergrounding Supplemental Assessment District (the "Original Supplemental District"), approved the Engineer's Report respecting the Original Supplemental District (the "Supplemental Report"), and levied supplemental assessments (the "Original Supplemental Assessments") upon the designated parcels in accordance with the Supplemental Report; and WHEREAS, on May 18, 2006, the Town initiated a validation action in the Marin County Superior Court (the "Superior Court") for the purpose of obtaining judicial validation of the Original Supplemental Assessments pursuant to the provisions of Sections 860 through 870.5 of the California Code of Civil Procedure (the "Validation Proceedings"); and WHEREAS, following a favorable ruling by the Superior Court in the Validation Proceedings, upholding the validity of the Original Supplemental Assessments, the First District Court of Appeals, by its opinion issued on December 31, 2009 (the "DCA Decision"), reversed the Superior Court and ruled the Original Supplemental Assessments invalid; and WHEREAS, rather than pursuing an appeal of the DCA Decision to the California State Supreme Court, at substantial additional expense to the TQWh and entailing further substantial delay in the implementation of the Reduced Project (as described in subparagraph (a) immediately below), this Town Council preliminarily intends to pursue implementation of an alternative program consisting of three components (the "Proposed Utility Undergrounding Program"), as follows: (a) abandonment of the Original Supplemental District; (b) modification of the Original District, in conformity with the Settlement Agreement, by ordering certain changes of proceedings respecting the Original District to (i) revise the boundary of the Original District to exclude those parcels listed in Exhibit B of the Settlement Agreement and identified therein as the "Deleted Parcels" (thereby creating the "Reformed Original District"), (ii) reduce the scope of the Project and the related estimated Project cost to conform to the reduced area of the Reformed Original District (the Project, as reduced in scope, being referred to hereafter in this resolution as the "Reduced Project"), (iii) reduce to zero the amount of the Original Assessments which were levied on the Deleted Parcels, and (iv) refund to the owners of the Deleted Parcels the amounts paid on account of the Original Assessments, with interest to be calculated in accordance with the Settlement Agreement; and (c) formation of a new supplemental district, to be known as the "2010 Supplemental Del Mar Valley Utility Undergrounding Assessment District" (the "New Supplemental District"), with boundaries conforming to the Reformed Original District and with the amount of the proposed new supplemental assessments (the "New Supplemental Assessments") being calculated to supplement the moneys which will remain available for the Reduced Project following the refunds described in subparagraph (a) above to the owners of the Deleted Parcels to fully fund the Reduced Project, and to pay the incidental expenses relating to the New Supplemental District and the financing costs of the subordinate lien limited obligation improvement bonds (the "New Bonds") to be issued and sold on the security of the New Supplemental Assessments which remain unpaid following a cash payment period during which owners of the parcels upon which a New Supplemental Assessment is levied may prepay, without interest, and discharge the lien of the New Supplemental Assessment prior to issuance of the New Bonds; and WHEREAS, with respect to the third component described in the foregoing subparagraph (c), this Town Council wishes by this resolution to (a) preliminarily declare its intention to form the New Supplemental District and to provide for the issuance and sale of the New Bonds and (b) to appoint Bond Counsel, District Engineer and Underwriter for the Proposed Utility Undergrounding Program, with particular emphasis on the New Supplemental District and the New Bonds; and WHEREAS, the Town adopted a policy to govern the formation of utility undergrounding districts on April 19, 2006 ("Undergrounding Policy"). This policy establishes a procedure for undergrounding proponents to petition the Town to begin the formation process and for the Town to (a) retain the appropriate consultants and (b) provide affected district residents with ample information and opportunities to be heard. In adopting this policy, the Town Council contemplated an entirely new undergrounding project promoted by one or more neighborhood proponents, where non-proponents would be expected to knowAittle or nothing about the project or the assessment district process. The Town Council finds that the Undergrounding Policy should not apply to the proposed New Supplemental District, because of the unique history of the Original District and the Original Supplemental District and because the Town itself is initiating the process in response to that history. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON HEREBY FINDS, DETERMINES AND RESOLVES as follows: 1. The foregoing recitals are true and correct, and this Town Council hereby expressly so finds and determines. 2. This Town Council hereby further finds and determines that it is in the best interest of the Town, its inhabitants and the property owners within the Reformed Original District, to proceed as diligently as possible with the Proposed Utility Undergrounding Program, thereby providing the highest possible chance of implementing the Reduced Project at the least cost and expense to the affected property owners and the Town, in a manner which implements the Settlement Agreement, is best achieved by seeking to implement the Proposed Utility Undergrounding Program, as described above in this resolution. 3. This Town Council hereby determines that the New Supplemental District shall be exempt from the Undergrounding Policy. 4. This Town Council hereby preliminarily declares its intention to form the New Supplemental District and to provide for the issuance and sale of the New Bonds, as part of implementation of the Proposed Utility Undergrounding Program; provided that this resolution shall not constitute the more formal "Resolution of Intention" for the proposed New Supplemental District, which this Town Council presently expects to consider at its regular meeting on June 2, 2010, and which shall include those matters required by Section 10200 of the California Streets and Highways Code. 5. This Town Council hereby appoints the following firms to provide the services indicated with respect to the Proposed Utility Undergrounding Program in general and with respect to the New Supplemental District and the New Bonds in particular: (a) Bond Counsel - Meyers, Nave, Riback, Silver & Wilson, a Professional Law Corporation; (b) District Engineer - NBS; and (c) Underwriter - Wulff, Hansen & Co. 6. This resolution shall take effect immediately upon adoption by this Town Council. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, State of California, held this 19th day of May, 2010, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None r RICHARD COLLINS, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK