Loading...
HomeMy WebLinkAboutTC Agd Pkt 2012-04-18TOWN OF TIBURON Tiburon Town Council Tiburon Town Hall April 18, 2012 1505 Tiburon. Boulevard. Regular Meeting - 7:30 p.m. Tiburon, CA 94920 Interviews - 7:15 p.m. AGENDA TIBURON TOWN COUNCIL INTERVIEWS - (7:15 p.m.) (Vacancies on Building Code Appeals Board) • Jerry Johnson (Integrity Electric, Inc.) • Chuck Clemons (Energy Calc Co.) CALL TO ORDER AND ROLL CALL Councilmember Collins, Councilmember Doyle, Councilmember Fredericks, Vice Mayor O'Donnell, Mayor Fraser 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 4, 2012 regular meeting (Town Clerk Crane Iacopi) 2. Sustainable Communities Strategy - Authorize comment letter to Association of Bay Area Governments (ABAG) regarding the draft Jobs-Housing Connections Scenario document associated with the Sustainable Communities Strategy (SCS) process (Director of Community Development) ACTION ITEMS 1. Appointments to Town Boards, Commissions or Committees - Consider appointment to fill vacancy on the Building Code Appeals Board (Town Clerk Crane Iacopi) 2. Chapter 16A of Town Code, Regulatiori of Signs - Request for Council Direction regarding possible future amendments (Town Attorney Danforth/Director of Community Development Anderson) 3. Ned's Way Recreation Building Project - Consider Award of Contract and related actions (Town Manager Curran) - continued from March 7 meeting PUBLIC HEARINGS 1. Construction and Demolition Ordinance - Consider amendments to Title IV, Chapter 13 (Building Regulations) of the Town Code to establish regulations and requirements for recycling of construction and demolition waste (Director of Community Development Anderson) - Introduction and first reading of ordinance TOWN COUNCIL REPORTS TOWN MANAGER'S REPORT WEEKLY DIGESTS • Town Council Weekly Digest - April6, 2012 • Town Council Weekly Digest -April 13, 2012 ADIOURNMENT 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. cr~-/ TOWN COUNCIL MINUTES CALL TO ORDER Mayor Fraser calle re eeting of the Tiburon Town Council to order at 7:35 p.m. on Wednesday, April 4, 2012, in own Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL CALL PRESENT: COUNCILMEMBERS: Collins, Doyle, Fraser, Fredericks, O'Donnell PRESENT: EX OFFICIO: Town Manager Curran, Director of Administrative Services Bigall, Director of Community Development Anderson, Town Clerk Crane Iacopi Prior to the regular meeting, the Council met in closed session, beginning at 6:00 p.m., and interviewed a candidate for a Town Board at 7:15 p.m. CLOSED SESSION - (6:00 p.m.) CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Tiburon Police Association Employee Group: Unrepresented Employees Negotiators: Town Manager and Director of Administrative Services INTERVIEW - (7:15 p.m.) (Vacancies on Building Code Appeals Board) • David Kallmeyer, applicant CLOSED SESSION ANNOUNCEMENT, IF ANY Mayor Fraser said the Council had met in closed session and would continue the meeting after adjourning the regular meeting. ORAL COMMUNICATIONS None. DRAFT_ 0 wn ouncil Minutes #xx -2012 April 4, 2012 Page 1 CONSENT CALENDAR 1. Town Council Minutes - Adopt minutes of March 21, 2012 regular meeting (Town Clerk Crane Iacopi) 2. Town Investment Summaries - Accept reports for January and February 2012 (Director of Administrative Services Bigall) 3. 14 Cecilia Court - Adopt resolution granting an appeal of Planning Commission decision to deny an application to amend the Tiburon Highlands Precise Plan to increase the maximum allowable floor area for the lot from 3,500 square feet to 3,884 square feet (Planning Manager Watrous) • Owners/Appellants: David and Dipanwita Reis • Applicant: Greg LeDoux & Associates, Inc. • Property Address: 14 Cecilia Court • Assessor's Parcel No. 034-360-30 4. Americans with Disabilities Act (ADA) Town Facility Improvements - Consider authorization of budget amendment to make additional ADA upgrades to Town Hall building (Director of Public Works /Town Engineer Nguyen) 5. Sign Permit Fee Waiver Request - Consider request for waiver of sign permit fee by Belvedere-Tiburon Landmarks Society to install informational sign at Old St. Hilary's Church (Planning Manager Watrous) Town Clerk Crane Iacopi noted that Councilmember Collins had submitted revisions to the March 21 minutes, copies of which were made public. MOTION: To adopt Consent Calendar Item No. 1 as amended and Nos. 2 through 5 as submitted. Moved: Fredericks, seconded by Collins Vote: AYES: Unanimous ACTION ITEMS 1. Appointments to Town Boards, Commissions or Committees - Consider appointment to fill vacancy on the Building Code Appeals Board (Town Clerk Crane Iacopi) Town Clerk Crane Iacopi gave the report. She said that Council had interviewed its second candidate, civil engineer Dave Kallmeyer, and could consider an appointment tonight. Councilmember Fredericks raised the question of conflicts of interest for applicants who might have projects of their own within the Town of Tiburon. She said that public service required a DRAFT Town Council Minutes #xx -2012 April 4, 2012 Page 2 high degree of public disclosure. A majority of the Council agreed that it would be useful for members of this Board to disclose whatever current projects they might have in Town prior to convening a meeting of the Board. Town Manager Curran said that this type of disclosure would also head off any surprises by residents appealing a Building Official decision to the Board. She said that an administrative policy could be drafted to reflect the Council's wishes. MOTION: To appoint Dave Kallmeyer to the Building Code Appeals Board. Moved: Fredericks, seconded by Collins Vote: AYES: Unanimous PUBLIC HEARINGS 1. General Plan Housing Element Text Amendment - Adopt text amendment to the recently-adopted Housing Element to correct an editing error (Director of Community Development Anderson) Director Anderson gave the report noting that a paragraph of text had been included in the Council's materials that did not reflect that actual text adopted and recommended forward by the Planning Commission. He said that the Planning Commission had reviewed the corrected text at a meeting late in March and that it was before the Council for adoption. Council commented on the ongoing discussions with the Reed Union School District over this site and noted the difficulty in gaining RUSD support for an affordable housing use at the site given circumstances at the school district. Director Anderson indicated that a formal rejection of the site had not yet been received, and that discussions were ongoing. He added that if this site proves to be ultimately unavailable, then the Town must identify an alternate site or sites to replace it. Mayor Fraser opened the public hearing. There was no public comment. Mayor Fraser closed the public hearing. MOTION: To adopt the resolution approving the text amendment as submitted. Moved: Fredericks, seconded by Collins Vote: AYES: Unanimous TOWN COUNCIL REPORTS Councilmember Fredericks said that local congestion management agencies had been tasked with helping to educate the public about SB 375 - the Sustainable Communities Strategies. She said she served as chair of an ad hoc committee of the Transportation Authority of Marin, and that the committee was planning to draft a [third] letter to ABAG with input concerning the One Bay DRAFT Town Council Minutes #xx -2012 April 4, 2012 Page 3 Area Plan. She said it would be helpful to know what members of her jurisdiction were thinking about this plan. Mayor Fraser said that he had attended the MCCMC meeting on March 23 which featured a presentation by the ABAG Planning- Director on the One Bay Area Plan. While he said it was an interesting presentation, the Mayor indicated that none of the questions submitted by the members were really answered. Mayor Fraser said that the job projections and housing targets set for Tiburon in the One Bay Area Plan were not only unattainable but incredible. He said it seemed to him that there should be a way to "push back" against the system that was responsible for creating these projections. The Council briefly discussed the One Bay Area Plan methodology and the difficulty, if not impossibility, of making predictions 40 years into the future. Director Anderson said that the methodology for the One Bay Area Plan seemed particularly complex. Town Manager Curran said that a member of the TAM staff would give a presentation at the May 2 meeting, at the Mayor's behest, in order to understand more fully what was being required of the Town of Tiburon and to solicit input from the Council. TOWN MANAGER'S REPORT None. WEEKLY DIGESTS • Town Council Weekly Digest - March 23, 2012 • Town Council Weekly Digest- March 30, 2012 ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Fraser adjourned the meeting at 8:05 p.m. to a continued meeting (Closed Session). JIM FRASER, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK DRAFT Town Council Minutes #x -2012 April 4, 2012 Page 4 CLOSED SESSION - (8:10 p.m.) CONFERENCE WITH LABOR NEGOTIATOR (Section 54957.6) Bargaining Unit: Tiburon Police Association Employee Group: Unrepresented Employees Negotiators: Town Manager and Director of Administrative Services CALL OR ORDER AND ROLL CALL Mayor Fraser noted that all members of the Council were present, along with staff members Town Manager Curran and Director of Administrative Services Bigall. CLOSED SESSION ANNOUNCEMENT, IF ANY Mayor Fraser said the Council had taken no action in closed session on the matters discussed. ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Fraser adjourned the meeting at 8:50 p.m. to the next regular meeting of April 18, 2012. JIM FRASER, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK DRAFT Town Council Minutes #xx -2012 April 4, 2012 Page 5 TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed by: BACKGROUND Mayor & Members of the Town Council Community Development Department Town Council Meeting April 18, 2012 Agenda Item: (~~°°sc _ AL Approve and Authorize Mayor to Sign a Comment Letter on the ABAG Draft Jobs-Housing Connection Scenario Document ABAG recently released its Draft Job-Housing Connection Scenario (DJHCS) document as part of its One Bay Area Plan process. The DJHCS document includes job growth, housing unit production, and household growth projections to the year 2040. The comment deadline for this draft document is April 20, 2012. The Town Council will be receiving a presentation on this ABAG process from an MTC staff member at its May 2, 2012 meeting, but this letter is intended to meet the comment deadline while the Town continues to review and educate itself on this complex process. Staff would like to thank Councilmember Fredericks for the lion's share of work in preparing the draft letter. RECOMMENDATION Approve the draft letter; authorize the Mayor to sign it; and direct staff to forward the letter to ABAG in time to meet the comment deadline. EXHIBITS 1. Draft Letter Prepared by: Scott Anderson, Director of Community Development April 19, 2012 Mr. Ken Kirkey, Planning Director Association of Bay Area Governments_ 101 Eighth Street Oakland, CA 94607 RE: Town of Tiburon's Comments on Draft Jobs-Housing Connection Scenario Document Dear Mr. Kirkey: Thank you for the opportunity to comment on the Draft Jobs-Housing Connection Scenario (DJHCS) document dated March 9, 2012. The Town acknowledges the challenge of planning for population growth over the next 30 years while meeting the goals of reducing greenhouse gas (GHG) emissions to levels below that of current emissions. We further acknowledge that our town has a responsibility for a fair share of the regional growth necessary to meet the growing regional needs. We respectfully submit information that accounts for some of the particularized constraints that make the housing and job growth numbers projected in the DJHCS document unlikely and unrealistic in the Town of Tiburon. Fewer Housing Units Needed than Projected in Tiburon ABAG statistics show an increase of 131% in the population of seniors by 2040. Tiburon represents a larger proportion of this increase, and the seniors tend to be more affluent. They are more likely to live in the 54% of households that have more bedrooms than residents. Some will vacate these homes, making them available for new household occupants. Of the seniors who vacate their homes, some will move into existing group homes, others will move out of the area to be in assisted living facilities near family. The former will be part of the uncounted housing represented by those in group homes and their caretakers. Both the former and the latter will represent newly available housing units. Both groups of seniors reduce the need for new housing stock, more so especially in Tiburon than in most other communities. Another uncounted group that reduces the need for new housing stock in Tiburon is those residents who house live-in help. As an affluent community, Tiburon has a disproportionate number of seniors and young families who are able to provide accommodations for live-in help. These arrangements should be considered in projecting housing unit needs for Tiburon. Tiburon is a jurisdiction of less than 5 square miles of land and most remaining undeveloped land is on steep terrain subject to landslides, lacking infrastructure, and DRAFT E 'Z" "I71II;IT N0. otherwise severely physically constrained. The cost of developing these lands and the narrow roads from which transit corridors are not easily accessible on foot or by bike constrain building, reducing the likely feasible density of housing. Constraints on Building the Required Density to Meet Growth Projections will Limit Growth In order to meet the housing needs projected for the Town in multi use high-density projects, the Town foresees a proliferation of buildings of unprecedented height along-Tiburon Blvd, the transit corridor. The Town of Tiburon has already zoned its commercial transit corridor to permit 3-story high density multi use development, with current pushback from the community on new two story buildings. Much of the developed land in Tiburon that is currently relatively affordable is located in areas subject to climate change-related sea level rise, according to the San Francisco Bay Conservation and Development Commission. Rezoning these areas for even denser development would be a travesty. They provide the moderate priced housing needed by younger families who are purposefully choosing Tiburon rather than a true urban setting in which to raise their children and/or age. Local Economy Depends of the Character of the Town The characteristics that make Tiburon different from other bayside tourist towns are the preservation of key aspects of a former railroad town. That identification is promoted and is a draw for tourists who help feed our local economy. While many buildings along Main Street and Ark Row in Tiburon have been renovated and refined, and there currently exist some two-story buildings along the range of Tiburon Boulevard frequented by visitors, the taller urban buildings that would be required to fulfill the draft job and housing projections will overwhelm the tourist visiting areas, resulting in an undesired "Potemkin Village" look. The identity of our former railroad town, with views of ridges and the bay and with in-scale buildings is one the town has cultivated and treasures. This identity attracts tourists and helps sustain local businesses. Their use of public transportation such as ferries makes the service viable for our residents as well. Tiburon's small resident population cannot support a downtown with local ferries, local services and stores in the absence of the tourist business. Loss of identity as a former railroad town will threaten the economic viability of our town and the ability of local business to serve local residents. Limited Capacity for Meaningful Job Growth to Reduce Greenhouse Gas Emissions The limited transit network in Marin County cannot provide transportation to jobs in Tiburon's downtown area, which is well off the main regional corridor of U.S. Highway 101, and is a destination where a sizable number of workers are restaurant workers who have shifts that do not coincide with very limited bus schedules. The DRAFT capacity to provide local housing for these workers, as explained above, is constrained. Historically Tiburon is one of the towns with a jobs/housing balance, but the people who live in town do not work in town, and, vice versa. If such job growth occurs, we believe that it will increase rather than reduce the vehicle miles traveled (VMT) to the Tiburon peninsula, as well as GHG emissions. Alternatively, if the growth in the knowledge sectors means more residents will work in their homes, the reduction in VMT may be less than anticipated. If it is assumed that the businesses that contract with or hire knowledge-sector home workers will be off the Tiburon Peninsula, there is little evidence to predict either a decrease in VMT or a corresponding reduction in GHG. Additionally, any improvements toward improving public transit will be inordinately costly, as such improvements would be hampered by less frequent and less predictable use by home office occupants, and the organization of car and/or van pools will be less likely to meet the needs of these workers when they must travel to the offices of the companies that hire them or contract for their services. All these factors will limit the ability of knowledge sector job growth in Tiburon to reduce GHG emissions. Finally, if it is foreseen that these knowledge-sector jobs will be located in local offices, again, the limited capacity to build such offices could threaten the local businesses that currently occupy our commercial spaces and serve the needs of our residents. Any reduction in the kinds of business that serve our local residents has potential to impair the balance of resident and tourist serving businesses that currently fuels a large portion of our small local economy. Unrealistic Housing Production Projections For Tiburon, the DJHCS projects 330 additional housing units and 460 additional households by 2040. The former number equates to an average of 11 new units constructed per year over the 2010-2040 timeframe. These projections are substantially higher than the 190 new households estimated for Tiburon by ABAG in its Projections 2009 document for the period 2010-2035. When compared with historical trends, the projections appear totally unrealistic. The following table provides Town-generated figures for the number of new housing units built over the past 16 years in the Town of Tiburon. Year # New Units Built 1996 28 1997 34 1998 13 1999 18 2000 9 2001 13 DRAFT 2002 36 2003 3 2004 9 2005 3 2006 4 2007 2 2008 2 2009 4 2010 0 2411 0 178 Annual Average = 11 units The growth in housing units that occurred from 1996 to 2002 is largely reflective of numerous subdivisions previously undeveloped land that were approved in the 1980's and 1990's and provided a sizeable inventory of vacant lots to be constructed upon. The Town's supply of such undeveloped lands and their realistic potential output in units is now very small; the supply of vacant lots upon which to build is greatly shrunken and will never again approach the volume available in the 1990's. It is unrealistic and unjustifiable to project that over the next 30 years the output of housing units built in Tiburon will match the average number constructed during the past 16 years. Conclusion Based upon the above facts and rationales, the Town of Tiburon respectfully requests that ABAG coordinate its job, housing unit and household projections in the DJHCS with the realities of our small town and the economy so dependent upon its character. To this end, we also request that a peer review by qualified experts be performed on the assumptions upon which the projections are based. Sincerely, Jim Fraser, Mayor Town of Tiburon DRAFT y~ TOWN OF TIBURON Town Council Meeting I's April 18, 2012 1505 Tiburon Boulevard Agenda Item: Al N Tiburon, CA 9490 To: From: Subject: Reviewed By: BACKGROUND Mayor and Members of the Town Council Office of the Town Clerk Appointments to fill vacancies on the Building Code Appeals Board In July of last year, the Town Council adopted Resolution No. 34-2011 establishing the Building Code Appeals Board (BLAB) as an official standing body of the Town of Tiburon. Consisting of five regular members and two alternate members, the primary duty of the BCAB is to act as the appeals board for decisions and interpretations of the Building Official regarding non- administrative provisions of the Town's adopted building codes. It is anticipated that the board will most likely meet no more than once or twice a year. To date, the Council has appointed one contractor (Mark Swanson) and one civil engineer (David Kallmeyer) to the BLAB. Tonight, the Council will interview an electrical contractor (Jerry Thompson) and a solar contractor (Chuck Clemons) for the next two positions. CONFLICT OF INTEREST DISCLOSURES At the April 4 regular meeting, the Council discussed the idea of requiring BCAB members to disclose any existing projects they may have in the Town prior to convening a meeting of the Board. The Council thought this would be necessary in order to provide full public disclosure and as a way of informing appellants of the interests of the reviewing BCAB members. In the event of a conflict of one of the members, an alternate would serve as the decision-maker on the board. Staff agreed to draft an administrative policy to incorporate the Council's direction. It should be noted that BCAB applicants are expected to be familiar with the Town's building codes and regulations. It is anticipated that the BCAB members will have projects and experience working in the Town of Tiburon. In this case, the appointment is somewhat different than an appointment to the Design Review Board, for instance, where the fact of having local projects is often a disqualifier for many applicants. As to the question of potentially ruling against the Building Official, it should also be noted that all the applicants to date have worked with Town officials and staff and, in fact, were invited to apply for the position by the Town's Building Official based on their experience and expertise. Town Staff continues to advertise to fill the remaining positions. RECOMMENDATION Staff recommends that the Town Council interview the applicants (Jerry Thompson and Chuck Clemons) and consider appointing them to the BCAB. Exhibit: Applications of Jerry Thompson and Chuck Clemons Prepared By: Diane Crane Iacopi, Town Clerk III-- nk TOWN OF TIBURON COMMISSION, BOARD & COMMIT APPLICATION E A P R - 1 2012 The Town Council considers appointments to various Town commissions, boards and committees throughout the year due to term expirations and unforeseen vacancies. In an effort to broaden participation by local residents in Tiburon's governmental process and activities, the Council needs to know your interest in serving the Town in some capacity. Please indicate your specific areas of interest and special skills or experience which would be beneficial to the Town, by completing both sides of this form and returning it to Town Hall. The application form can also be found on the Town's website, www. ci.tiburon. ca. us., Copies of the application will be forwarded to the Town Council and :an informal interview will be scheduled when a vacancy occurs. Your application will remain on file at Town Hall for a period of one (1) year. Thank you for your willingness to serve the Tiburon community. Diane Crane Iacopi Town Clerk AREAS OF INTEREST Please Indicate Your Area(s) of Interest in Numerical Order (#1 Being the Greatest Interest) PLANNING PARKS, OPEN SPACE & TRAILS DESIGN REVIEW JT. RECREATION COMMITTEE HERITAGE & ARTS DISASTER PREPAREDNESS LIBRARY MARIN COMMISSION ON AGING LS 130 4A<D 1 PERSONAL DATA (PLEASEPRINT OR TYPE - A'RESUME MAY BE ATTACHED AS WELL) NAME. e~~ 1~1-~ MAILING ADDRESS: TELEPHONE: O q 9 ~ Work: 499 -a S'S Fax No. r PROPERTY OWNERS' ASSOC. (If applicable) TIBURON RESIDENT: (Years)___N/ DATE SUBMITTED: Zf RE, AS0]VS-, FOR SELECTING YOUR A As AS .OFINTER ST ~y ~ -4- •-4-In n~j h i.% nc", i i ~1 -4t) r: /111 or t 1 1 f' YU v~, C ~ l w. APPLICABLE UALTF'1CA IONS ANAEXPElR IE CE LWO,Cvp5 Town Hall Use Date Application Received: Interview Date: _ Appointed to: (Date) Date Term Expires: Length of Term: 2 U~ LJ Wv TOWN OF TIBURON TOWN CLERK TOW" OF TIBUROCOMMISSION BOARD & COMMITTEE APPLICATION The Town Council considers appointments to various Town commissions, boards and committees throughout the year due to term expirations and unforeseen vacancies. In an effort to broaden participation by local residents in Tiburon's governmental process and activities, the Council needs to know your interest in serving the Town in some capacity. Please indicate your specific areas of interest and special skills or experience which would be beneficial to the Town, by completing both sides of this form and returning it to Town Hall. The application form can also be found on the Town's. website, www.ci.tiburon.ca.us. Copies of the application will be forwarded to the Town Council and-an, informal interview will be scheduled when a vacancy occurs. Your application, will remain on file at Town Hall for a period of one (1) year. Thank you for your willingness to serve the Tiburon community. Diane Crane Iacopi Town Clerk AREAS OF INTEREST Please Indicate Your Area(s) of Interest in Numerical Order (#1 Being the Greatest Interest) PLANNING PARKS, OPEN SPACE & TRAILS DESIGN REVIEW JT. RECREATION COMMITTEE. HERITAGE & ARTS DISASTER PREPAREDNESS LIBRARY _ MARIN COMMISSION ON AGING 1 PERSONAL DATA (PLEASE.PRINT OR TYPE- A RESUME MAY BE ATTACHED AS WELL) NAME:; UU Z, cm atJS MAILING ADDRESS: 4L j -AAiTCkELL aLUC . 4J( j~kfAfL CA` 9LO o TELEPHONE: Home: - 05-50 Work: J ? - 09 0 Fax No. 44 IST " PROPERTY OWNERS' ASSOC. (If applicable)_ TIBURON RESIDENT: (Years) DATE SUBMITTED: i0 12, REASONS FOR SELECTLNG YO UR AREAS OF INTEI E,S ' K"ubs I tV To A f~ot.tl TOWN CLERK RON APPLICI A ' .5. F,,y')(94-aKf1.11'A1...` U-4271'I P16D &#,d,f66 A'REVUALIF"ICATIONS ID EXPERLEIICE (IXA OA IQ &L Ou3 MEIL OF- F.Q6Z5V Cam, LC C0, ----------------------------------------------Town Hall Use Date Application Received:.. Z1- /l- / Z. Interview Date: Appointed to: Date Term Expires: (Date) Length of Term: 2 To: From: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Office of the Town Attorney Community Development Department Town Council Meeting April 1S, 2012 Agenda Item: r--. Subject: Tiburon Municipal Code Chapter 16A - Regulation of Signs Request for Council Direction regarding Possible Amendments Reviewed By: BACKGROUND The Town of Tiburon experienced significant controversy regarding the signage for the new CVS/Pharmacy on Tiburon Boulevard. The Design Review Board approved two signs for the project, which were appealed by both the applicant and a group of community residents. During the discussion of these appeals, the Council indicated that it felt bound by the Town's Sign Ordinance to reject the residents' appeal and partially grant the applicant's appeal. Several Council members indicated an interest in revisiting the current sign ordinance, adopted in 2009, to reflect the signage-related concerns associated with the CVS controversy. Objections to the project's proposed signage primarily focused on the following aspects:' • Color: CVS proposed using the red and beige colors of its federally registered trademark. The Sign Ordinance does not currently regulate sign color beyond its physical compatibility with the building/surroundings. • Material: CVS requested approval of an aluminum sign. The current Sign Ordinance requires only that a sign be composed of high quality and durable material, and that the material be physically compatible with the building/surroundings. • Illumination: CVS initially proposed a halo-lit sign, a form of lighting that is allowed under the current ordinance (CVS ultimately agreed to lighting using goose-neck fixtures). • Number: The resident appellants did not believe that the Town should approve signs on more than one frontage, as the current ordinance expressly allows. ' To address the expressed design concerns, CVS argued that the federal Lanham Act prohibited the Board from requiring changes to its federal trademark colors. This is true, but the Town can lawfully deny a permit for signs that do not conform to Town regulations. TOWN OF TIBURON PAGE 1 OF 5 ANALYSIS Any discussion of sign regulations should begin'with an understanding of the unique constraints that public agencies face in this realm. The public opposition to the CVS signs appeared to assume that the Town has the same aesthetic discretion with respect to signs as it does with other types of project applications. It does not. The First Amendment to the United States Constitution imposes the primary constraint. The text is well-known, but bears repeating here: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the fireedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added) On its face, this amendment only applies to laws enacted by the United States Congress. However, in 1868, the Fourteenth Amendment to the Constitution expanded most of the Bill of Rights to the States. Many court cases have applied the First Amendment's protection of free speech to limit the authority of states, cities and other governmental entities. A number of these cases have ruled that the First Amendment limits sign regulations, even where the regulations do not expressly restrict sign content. Any restraint on First Amendment rights must advance a substantial government interest and be narrowly tailored to accomplish its goals. To avoid any chance of discriminatory, content-based enforcement, a permitting scheme must have narrow, objective and definite standards to guide the decision-maker and allow for effective judicial review of the outcome. In general, courts strike down regulations that vest undue discretion in governmental officials because such discretion can be used (intentionally or unintentionally) to unconstitutional effect, i.e., to discriminate based on the content of the speech or identity of the speaker. Despite these constraints, governmental agencies are allowed to enforce aesthetic sign regulations that pass constitutional muster. The courts have allowed clear, content-neutral restrictions, such as size, number, duration and placement regulations and a prohibition against pole signs. The current Sign Ordinance, attached as Exhibit 1, includes many such regulations. With the appropriate findings, the Council could expand these regulations to address the concerns raised during the CVS controversy. For example, the Council could ban the use of the color red in signs, the use of metal, halo or other forms of lighting not already prohibited, signs on multiple frontages, or any combination thereof. We must caution, however, that these regulations might have the unintended consequence of prohibiting signs that the Town would otherwise consider perfectly acceptable. The Lodge at Tiburon sign, which many find to be quite attractive, is both metal and halo-lit. Other halo-lit signs in Downtown are found at Union Bank, Guaymas, and Servino. In the CVS case, the Design Review Board attempted to use a more nuanced approach, by imposing conditions of approval to improve the signs' consistency with the character of Tiburon's downtown. Sign regulations can include carefully crafted compatibility requirements. To comply with the First Amendment, such regulations would have to specify both (1) the relevant area of comparison (for example, adjoining properties or properties within a specified distance); and (2) a limited and objective set of criteria that will be used for the comparison, such as the form, proportion, scale, color, materials, surface treatment, overall sign size and the size and style of lettering. One potential problem with adopting this approach is that existing signs in Tiburon are quite diverse. The CVS application demonstrates this point. Across Tiburon Boulevard from the new store, the Woodland Market has a sign composed of the colors preferred by the Board: white letters against the gray background of the building. However, Woodlands Market is only one store in the Boardwalk Shopping Center; other stores have a variety of different signs facing Tiburon Boulevard. Staff notes that the red Wells Fargo Bank sign and the red Vogue Cleaners sign are located in the City of Belvedere, and that these signs would not be permitted under the Tiburon's current sign ordinance. In addition, the CVS building is equally close to, and on the same side of the street as, the blue and white sign of the Chase Bank, and the red, white and blue logos of the Bank of America. A third option would be for the Town to mandate the use of certain colors, materials, etc. Over time, this would result in more uniform look to the Town's signs. However, Tiburon has historically avoided regulations that would result in a homogenous Downtown appearance (e.g. Solvang), preferring to allow a diversity in appearance and aesthetics provided that compatibility is achieved and the signs complement (rather than compete with) the architecture of the building and storefront. Signs approved under current sign ordinance include: Guaymas, Woodlands Market, The Grill at the Lodge at Tiburon, Lily Kai, Boathouse, Grass Shack, the tenants at 20-22 Main Street, Maria French Cleaners, and Union Bank. These signs represent a wide range of sizes, colors, materials, lettering styles and lighting techniques that contribute to the character of Downtown. It is notoriously difficult to craft sign regulations that mandate the use of certain materials, colors, etc., without crossing the threshold into relative uniformity, whether that takes the form of limited colors, materials, lettering style, lighting or any combination thereof. This would be a policy decision for the Town Council. Staff believes that the CVS building presents an unusual situation for Tiburon in that it has historically been a very large, single tenant, stand-alone building with multiple public street/public parking lot frontages. It is therefore difficult to draw parallels between this building and other buildings in Downtown with respect to signage. Most buildings of this size (20,000 square feet) have multiple stories and tenants, do not have multiple street frontages, or constitute "shopping centers". Sign-wise, the CVS building has long been problematic, but staff considers the end-result signage for the CVS store to be vastly superior to that approved for prior tenants DeLano's/IGA and Cala/Bell Markets under the predecessor sign ordinance, in terms of aesthetics, quality, and method of lighting. Some specific revisions to the Sign Ordinance that could help avoid controversies similar to those posed by the CVS application could be as follows: ➢ Modify the definition of establishment frontage. The sign ordinance currently counts building frontage on a "public parking lot" toward the sign area and sign number calculations [Reference p. 172-5; "establishment frontage"]. This term includes building frontage along the public pay-parking lots located in Downtown, but not the smaller private parking lots generally- limited to on-site customer or employee use. The CVS site benefits from a third building frontage along the Zelinsky parking lot annex, which is a public pay-parking lot. The ordinance could be modified such that these public pay- parking lots would no longer be counted as frontage. ➢ Reduce the allowed number of signs. The sign ordinance currently allows two (2) permanent signs per frontage per establishment [Reference p. 172-22, Section 16A- 720(d)]. A typical combination would be a wall or hanging sign and a separate window sign. This provision potentially allows a total of ten signs for the CVS building, including four signs for an as-yet unidentified sub-lease tenant. While this site is somewhat of an aberration, the number of allowable signs per frontage could be reduced, or (more likely) the number of signs for any additional (secondary) frontages could be reduced to one sign or even to no signs. ➢ Place a cap on the building frontage allotted to any establishment, regardless of actual building frontage calculation [Reference p. 172-22; Section 16A-720(a)]. This would serve to limit allowable sign area for even single tenant occupancies in the largest of buildings. ➢ Revise the sign illumination regulations. The sign ordinance already prohibits internally- illuminated signs, but allows external indirect illumination, halo-type illumination, reflective illumination, and neon lighting in very limited proportions (no more than 10 percent of the sign area) [Reference p. 172-19; Section 16A-625]. Halo-type illumination is usually subtle and attractive, but can be less so in large signs. Perhaps a maximum limit on the size of halo-lit signs could be imposed to address this concern. CVS could have applied for an approximately 32 square foot halo-it sign without requiring any exceptions. Perhaps a size limit roughly half that large could be imposed, more similar to the size of other halo-lit signs in Downtown that do appear to generate controversy. Another option would be to prohibit all lighting types except external indirect, where use of gooseneck fixtures, concealed lighting bars above the sign, and ground-mounted light fixtures are common. ➢ Take a more prescriptive approach to sign design principles [Reference p. 172-19; Section 16A.620] such as color, materials, lettering, etc. Such regulations would need to specify both (1) the relevant area of comparison (for example, adjoining properties or properties within a specified distance); and (2) a limited and objective set of criteria that will be used for the comparison, such as the form, proportion, scale, color, materials, surface treatment, overall sign size and the size and style of lettering. I i~z cl (.-out3.cil "viect:ifig pr 11.8, '012 RECOMMENDATION Staff recommends that the Town Council discuss the topic of potential revisions to the Sign Ordinance and provide direction to staff. If so directed, Staff will return with proposed revisions to the Sign Ordinance for public hearing. EXHIBITS 1. Tiburon Sign Regulations (Chapter 16A of the Municipal Code). Prepared By: Ann R. Danforth, Town Attorney Scott Anderson, Community Development Director p'~Igr> S of . Chapter 16A 16A.420 Interpretation of provisions of this chapter. SIGNS Sections: Article V Sign Application and Permit Article I Introduction Procedures 16A.100 Title. 16A.500 Sign permit generally required. 16A.105 Authority. 16A.505 Application and completeness 16A.110 Purpose. review. 16A.115 Regulatory scope. 16A.510 Review authority. 16A.515 Criteria for approval of sign Article H Basic Policies permit applications; Conditions. 16A.200 Scope. 16A.520 Exceptions (major and minor). 16A.205 Permit generally required. 16A.525 Sign programs. 16A.210 Message substitution. 16A.530 Permits issued in error; Revocation or cancellation. 16A.215 Enforcement. . 16A.535 Processing and noticing 16A.220 Interpretation. requirements. 16A.225 On-site/Off-site distinction. 16A.540 Expiration of sign permits. 16A.230 Billboard policy. 16A.235 Non-communicative aspects. Article VI General Sign Provisions ` 16A.240 Discretionary approvals. 16A.245 Mixed uses or overlay districts. 16A.600 Compliance required. 16A.250 Legal nature of sign rights. 16A.605 Types of signs. 16A.255 Owner's consent. 16A.610 Sign area: Computation/ Determination of permitted sign 16A.260 Prospective regulation. area. 16A.265 Severance. 16A.615 Location, placement and safety rules. Article III Definitions 16A.620 General design principles. 16A.300 Scope. 16A.625 Illumination standards. 16A.305 Definitions. Article IV Applicability and Interpretation Article VII Sign Standards 16A.400 Compliance as of effective date of 16A.700 Regulation by use. this chapter. 16A.705 Allowance-Number of signs 16A.405 Compliance with applicable laws, permitted. rules, and regulations. 16A.710 Signs on residential uses. 16A.410 Requirements for associated town 16A.715 Signs on public right of way and permits and approvals. signs on town property. 16A.415 Automated teller machines 16A.720 Signs on non-residential uses. (ATM's). 16A.725 Other non-residential use signs. (Tiburon Supp. No. 12 Revision, 8-10) 172 FT z~~ rR'{ L O.- 16A.205 Article VIII Temporary Signs, Prohibited Signs, Exempt Signs and Nonconforming Signs 16A.800 Temporary signs. 16A.805 Prohibited signs. 16A.810 Exempt signs. 16A.815 Nonconforming signs, in general. 16A.820 Nonconforming portable signs. Article IX Violations and Enforcement 16A.900 Violations unlawful. 16A.905 Violations an infraction. 16A.910 Nuisance and abatement. Article I Introduction (c) To preserve and improve the visual appear- ance and aesthetics of the town as a place to live and work and as a desirable destination for visi- tors and tourists. (d) To encourage sound signage practices as a means to aid existing and new establishments and provide information to the public. (e) To ensure the preservation of freedom of speech. (f) To preserve and promote vehicular and pedestrian safety. (g) To protect the public health, safety and general welfare of the community at large. (h) To promote and implement the goals, pol- icies and programs of the Tiburon general plan. (Ord. No. 515 N.S., § 2 (part)) 16A.100 Title. This chapter shall be known as the sign ordi- nance of the Town of Tiburon. (Ord. No. 515 N.S., § 2 (part)) 16A.105 Authority. This chapter is adopted pursuant to Califor- nia Government Code sections 65000 et seq., 65850(b), 38774, and 38775; Business and Profes- sions Code sections 5200 et seq. and 5490 et seq.; Civil Code section 713; and other applicable state laws. (Ord. No. 515 N.S., § 2 (part)) 16A.110 Purpose. The provisions of this chapter shall regulate the location, size, type and number of signs al- lowed [this includes both signs subject to a permit and those exempt from a permit requirement] within the Town of Tiburon, and guide the design, aesthetics, materials, and illumination of signs within the Town of Tiburon. The purposes of this chapter are: (a) To safeguard and enhance property val- ues. (b) To protect the public and private invest- ment in buildings, improvements and open spaces. 16A.115 Regulatory scope. (a) This chapter regulates all signs that may be erected, installed, maintained, or displayed on private property and other property, not including town property or public rights of way, which is located within the limits of the Town of Tiburon. (b) Signs on the public right of way and signs on town property are regulated by town council Resolution No. 03-2009, or the most current suc- cessor thereto. (Ord. No. 515 N.S., § 2 (part)) Article II Basic Policies 16A.200 Scope. The policies, rules and regulations stated in this article apply to all signs within the regulatory scope of this chapter and to all provisions of this chapter, notwithstanding any more specific provi- sions to the contrary. (Ord. No. 515 N.S., § 2 (part)) 16A.205 Permit generally required. Only signs authorized by this chapter may be built, displayed, erected or maintained within the town. All signs are subject to a permit require- ment, unless expressly exempted. Signs exempted from the permit requirement still must satisfy all applicable laws, rules and regulations, including 172) -1 (Tiburon Supp. No. 12 Revision. 8-10) 16A.205 but not limited to building code, electrical code, and grading permits. (Ord. No. 515 N. S., § 2 (part)) 16A.210 Message substitution. Subject to the property owner's consent, a non-commercial message of any type may be sub- stituted, in whole or in part, for the message dis- played on any sign for which the sign structure or mounting device is legal without consideration of message content. Such Substitution of message may be made without any additional approval or permitting. Message substitution is a continuing right, and may be exercised any number of times. The purpose of this provision is to prevent any inadvertent favoring of commercial speech over non-commercial speech, or favoring of any partic- ular non-commercial message over any other- non- commercial message. In addition, any on-site com- mercial message may be substituted, in whole or in part, for any other on-site commercial message, provided that the sign structure or mounting de- vice is legal without consideration of message con- tent. This provision does not create a right to increase the total amount of signage on a parcel, lot or land use, does not affect the requirement that a sign structure or mounting device be prop- erly permitted; does not allow a change in the physical structure of a sign or its mounting device; and does not allow the substitution of an off-site commercial message in place of an on-site com- mercial message or in place of a non-commercial message. In each instance and under the same conditions to which this chapter pertains, any sign, a sign containing an ideological, political, or other non-commercial message shall be permitted, to the same physical dimensions and character as a commercial message sign in the same location. (Ord. No. 515 N.S., § 2 (part)) 16A.215 Enforcement. The director of community development is authorized and directed to enforce and administer the provisions of this chapter. (Ord. No. 515 N.S., § 2 (part)) 16A.220 Interpretation. Interpretations of this chapter shall be made initially by the director of community develop- ment. Said interpretations shall be subject to ap- I peal provisions as set forth in section 16A.420. All interpretations of this chapter are to be exercised in light of the message substitution policy and the purposes of this chapter. Where a particular type of sign is erected, displayed or proposed, and the type is neither expressly allowed nor prohibited by this chapter, or whenever a sign does not q ualify as a "structure" as defined in the zoning ordinance or the building regulations of the town, then the director of community development shall ap- prove, conditionally approve or disapprove the application based oil the most similar sign type that is expressly regulated by this chapter, in light of the policies stated in this chapter. (Ord. No. 515 N.S., § 2 (part)) 16A.225 On-site/Off-site distinction. Within this chapter, the distinction between on-site (also known as "on-premise" or "point-of- sale") and off-site (or off-premise or non-point-of- sale) applies only to commercial speech messages. (Ord. No. 515 N.S., § 2 (part)) 16A.230 Billboard policy. Billboards, as defined herein, are prohibited. The town completely prohibits the construction, erection, installation or use of billboards. No per- mit shall be issued for any billboard that violates this policy, and the town will take immediate en- forcement or abatement action against any bill- board constructed or maintained in violation of this policy. In adopting this provision, the town council affirmatively declares that it would have adopted this billboard policy even if it were the only provision in this chapter. The town council intends for this billboard policy to be severable and separately enforceable even if other provi- sions of this chapter may be declared, by a court of competent jurisdiction, to be unconstitutional, in- valid, or unenforceable. (Ord. No. 515 N.S., 2 (part)) (Tiburon Supp. No. 12 Revision, 8-10) 17 2 -2 16A.300 16A.235 Non-communicative aspects. All rules and regulations concerning the non- communicative aspects of signs, such as location, size, height, illumination, spacing, orientation, etc., stand enforceable independently of any permit or approval process. (Ord. No. 515 N.S., § 2 (part)) 16A.240 Discretionary approvals. table or movable signs, or images that are aspects of personal appearance. (Ord. No. 515 N.S., §-2 (part)) 16A.255 Owner's consent. No sign may be placed on private property without the consent of the property owner. (Ord. No. 515 N.S., § 2 (part)) Whenever any sign permit, exception, vari- ance, conditional use permit, sign program, or other sign-related decision, is made by any exer- cise of official discretion, such discretion shall be exercised only as to the non-communicative as- pects of the sign, such as size, height, orientation, location, setback, illumination, spacing, scale and mass of the structure, etc. Graphic design may be evaluated only for compliance with a Sign Pro- gram, and then only as to commercial messages. (Ord. No. 515 N.S., § 2 (part)) 16A.245 Mixed uses or overlay districts. Wherever both residential and non-residential uses are allowed on the same parcel, the sign- related rights and responsibilities applicable to that parcel or land use shall be determined as follows: residential uses shall be treated as if they were located in a zone where a use of that type would be allowed as a matter of right, and non- residential uses shall be treated as if they were located in a zone where that particular use would be allowed, either as a matter of right or subject to a conditional use permit or other discretionary process. (Ord. No. 515 N.S., § 2 (part)) 16A.250 Legal nature of sign rights. As to all signs attached to real property, the signage rights, duties and obligations arising from this chapter attach to and travel with the land or other property on which a sign is mounted or displayed. This provision does not modify or af- fect the law of fixtures, sign-related provisions in private leases regarding signs (so long as they are not in conflict with this chapter or other applica- ble law), or the ownership of sign structures. This provision does not apply to hand-held signs, por- 16A.260 Prospective regulation. This chapter applies only to signs whose struc- ture or housing has not been lawfully and perma- nently affixed to its intended premise on the date on which the ordinance or regulation is effective. This chapter does not affect signs that were legally installed and that exist as of the date this chapter first takes effect. This provision does not legalize existing signs that were built, constructed or erected without required permits or other approvals. (Ord. No. 515 N.S., § 2 (part)) 16A.265 Severance. If any section, sentence, clause, phrase, word, portion or provision of this chapter is held invalid or, unconstitutional, or unenforceable, by any court of competent jurisdiction, such holding shall not affect, impair, or invalidate any other section, sen- tence, clause, phrase, word, portion, or provision of this chapter that can be given effect without the invalid portion. In adopting this chapter, the Town Council affirmatively declares that it would have approved and adopted the Chapter even without any portion that may be held invalid or unenforce- able. (Ord. No. 515 N.S., § 2 (part)) Article III Definitions 16A.300 Scope. For the purposes of this chapter, words and phrases have the definitions stated in Section 16A.305 of this article. Grammatical inflections shall be adapted to the context. For words not defined in this article, other definitions may be applied from other sources, in this order: first, from the zoning ordinance (chapter 16 of the 172-3 (Tiburon Supp. No. 12 Revision. 8-10) 16A.300 Tiburon Municipal Code); second, from any ap- plicable definition in town law; third, from any applicable definition in California statutory or decisional law; fourth, from any applicable defini- tion in any respected dictionary of the English language; and fifth, from common usage, as ap- plied to context. (Ord. No. 515 N.S., § 2 (part)) 16A.305 Definitions. For the purpose of enforcing, implementing and interpreting the provisions of this chapter, certain terms and words are defined, as set forth is this section: "Abandoned sign" means any sign that has been abandoned for a period of one-hundred eighty (180) days or more following the closing of an establishment on the site where the sign is located; or a sign that pertains to a time, event, or purpose that no longer exists. "Accessory use" means a use customarily inci- dental and subordinate to the principal legal use. "Animated or moving sign" means a sign or sign structure capable of frequent or regular move- ment, including pennants, airborne balloons, mov- ing or flashing lights, or other non-stationary de- vices, intended or used for commercial purposes. Flags and banners are not within this definition. "Automated teller machine (ATM)" means a mechanical device that allows for automated bank- ing services to be performed. "Awning sign" means a sign located on the face or surface of an awning. "Banner" means a sign not made of rigid ma- terial and not enclosed in a rigid frame, and which is secured or mounted so as to allow movement. "Billboard" means a permanent structure sign that meets any one or more of the following crite- ria: 1) it is used for the display of off-site commer- cial messages; 2) it constitutes a principal, or sep- arate use, as opposed to an accessory or appurtenant use, of the parcel on which it is lo- cated; 3) it is used for general advertising or adver- tising for hire (in other words, display space is made available to parties, other than the owner or operator of the sign or occupant of the parcel); or 4) the display space is routinely made available to advertisers or sponsors other than the owner or operator of the sign, or the owner of the land upon which the sign is located, regardless of' whether the display space is made available for a fee, in exchange, donation, or otherwise. However, despite the generality of' the foregoing, a sign is not within this definition when display space on it is furnished or rented to establishments located on the same parcel, or in the same development. For example, an on-site shopping center sign or- kiosk, listing uses or establishments in the center, is not a billboard. "Changeable copy sign" means a sign that, if] part or whole, provides for periodic changes in the sign copy. Examples include signs for an audito- rium, theater, library, place of worship, meeting hall or similar use having changing programs or events and characterized by human assembly, but do not include electronic signs or signs on which the message is changed more than one time each day. "Commercial message" means a visual image that primarily concerns the economic interests of the speaker and/or the audience; or that primarily concerns the promotion, sale and purchase of goods and/or services, or that proposes an economic transaction. "Commercial mascot" means a human or live animal wearing apparel, costumery, or decora- tions which are intended to attract attention and present a commercial advertising message. In- cludes "sign twirlers," "human sandwich boards," "sign clowns" and the like. "Construction sign" means a sign temporarily located on a site where construction that is subject to a building or other safety permit is underway. "Consumer Information sign" means a small sign that is designed and erected for the purpose of communicating information for the safety or con- venience of the consuming public. Examples of such signs include, but are (Tiburon Supp. No. 12 Revision, 8-10) 172-4 16A.305 not limited to, signs displaying hours of op- eration, nameplates, association affiliations, credit cards that are accepted, and "now hir- ing", "hours of operation", "help wanted", "no smoking", "open", and "closed" signs. "Design review board" means the design review board of the Town of Tiburon or any successor thereto. "Directional sign" means a sign that is de- signed and erected solely for the purpose of vehicular or pedestrian direction, placed to provide direction to the public. Examples of such signs include, but are not limited to, parking lot directional signs such as "enter only," "exit," "parking in rear," "restricted area," and "valet parking," and signs directing the public to the location of restrooms and telephones. "Director of community development" means the director of community development or his/her designee. "Double-faced sign" means a sign consist- ing of two sign faces, which are placed so that only one sign face is visible from any one lo- cation at any one time. "Electronic sign" means a sign that uses electronic (LED, LCD or other video-type) lighting displays, or a sign that is capable of remotely changing messages on a frequent (more than daily) basis. "Erect" means build, construct, place, hang, relocate, install, enlarge, structurally alter or modify, affix, suspend, paint, post, or display a sign. "Establishment" means any legal use of land, other than long term residential, which involves the use of structures subject to the Building Code and the presence of human beings on the premises more than thirty-two (32) hours per week. By way of example and not limitation, this definition includes busi- nesses, factories, farms, schools, hospitals, hotels and motels, offices and libraries but does not include single family homes, mobile homes, residential apartments, residential care facilities, or residential condominiums. Auto- mated facilities which normally operate with- out the presence of human beings are not within this definition. "Establishment frontage" means the portion of a building, measured in linear feet, contain- ing a single establishment, which is parallel to and fronts on a public street, public right-of- way, public parking lot, public parking ga- rage, or a publicly-traveled waterway, includ- ing San Francisco Bay. "Flag" means any fabric, banner. or bunting containing distinctive colors, patterns, or de- sign, used as a symbol. "Flagpole" means a pole upon which to raise a flag. "Flashing sign" means any sign that is per- ceived as an intermittent or flashing light. "Flashing" is a light or message that changes more than once every four (4) seconds." "Freestanding sign" means any sign that is designed and constructed as a stand-alone structure, which is self-supporting on the ground and not materially affixed to or at- tached to a building. Types of freestanding signs include pole or pylon signs and monu- ment signs, but not Portable signs as defined herein. "Halo" or "halo-type sign" means a sign where the light source is concealed behind an opaque face and the rays of illumination are projected outwards toward the edge of the sign forming a "halo" effect around the exte- rior of the sign. Light does not pass through the face of a Halo sign. "Height" means the plumb vertical distance measured from the uppermost part of a sign to the grade below lowest part of a sign (or to the ground level if appropriate). "Illuminated sign" means any sign inten- tionally illuminated from an internal or exter- nal artificial light source. Ambient lighting does not qualify as illumination of a sign. "Internally-illuminated sign" means a sign where the light source is internal to the sign and the illumination passes through the face of 172-5 (Tiburon Supp. No. 10, 3-09) 16A.305 the sign. Neon signs are not included in this definition. "Legally-authorized sign" means a sign required, authorized by, or displayed by a governmental agency or other applicable law. "Mansard sign" means any sign attached to or supported by a mansard roof. "Marquee sign" means any sign that is on top of, or attached to, the face of a marquee, canopy, cantilevered covered walkway, or arcade, whether parallel to or at right angles with the face of the building. See also Under Marquee sign. "Monument sign" means a freestanding sign that is supported by a solid base or foun- dation rather than by one or more poles, posts, or pylons. "Multiple-tenant building" means a build- ing containing more than five (S) uses or es- tablishments, not including residential apart- ment buildings. "Multi-tenant sign" means a sign that dis- plays a list of multiple tenants, businesses or establishments in one or more buildings lo- cated on one site or contiguous development. "Nameplate" means a small sign identify- ing the name and/or address of an occupant or establishment. "Natural despoliation sign" means a sign that is cut, burnt, limed, painted or otherwise marked on a cliff, hillside, field, tree, rock or other natural feature. "Neon sign" means any sign containing neon or other visible discharge gas. "Off-site sign" means a sign that is not lo- cated on the property or premises of the use, business, profession, commodity, service or entertainment for which it advertises. The on- site/off-site distinction applies only to com- mercial speech messages. "On-site sign" means a sign which pertains to commercial activities or interests of an es- tablishment on the same site or within the same development. The on-site/off-site dis- tinction applies only to commercial speech messages. "Pole or pylon sign" means a freestanding sign that is supported by one or more poles, posts, or pylons, whether visible or covered with cladding. "Portable sign" means any sign not perma- nently affixed to the ground or to a building or structure, including, without limitation, "ped- estal," "A-frame," H-frame" and "I-frame" signs. This also includes signs on wheels or mounted on wheeled but non-motorized vehi- cles. "Projecting sign" means any sign that pro- jects from the face of a building by more than twelve inches and is supported by brackets, a projecting post, frame, or similar device, which is anchored to the building face. "Real estate sign" means any sign, tempo- rary in nature, the copy of which concerns a proposed economic transaction involving real property. This definition does not include oc- cupancy signs at establishments offering tran- sient occupancy, such as hotels and motels. All signs within the scope of Civil Code 713 are within this definition. "Roof sign" means any sign erected upon or above a roof or parapet wall of a building, or placed above the apparent flat roof or eaves of a building, or the top of a mansard roof. "Shopping center" means any combination of ten (10) or more establishments on a single or commonly owned or leased group of par- cels where common vehicular access from the street and common on-site parking facilities are provided. "Sign" means: (a) Any device, object, structure, fixture, or placard displaying graphics, symbols, and/or written copy for the primary purpose of communicating with the public, when such image is visible from any public right of way. (b) Notwithstanding the generality of subsection (a), the following are not within this definition: 1) Automated teller machines (ATM's), as defined herein; 2) Architectural Features, including decorative or architectural features of buildings (not including lettering, (Tiburon Supp. No. 10, 3-09) 172-6 16A.305 trademarks or moving parts); 3) Fireworks, including the legal use of fireworks, candles and artificial lighting not otherwise regulated by this chapter; 4) Grave stones, grave mark- ers, headstones, and other markers of the de- ceased; 5) Holiday and cultural observance decorations on private residential property and that are on display for not more than forty-five (45) days per year (cumulative, per parcel or use) and which do not include commercial advertising messages; 6) Interior signs or other visual communicative devices that are located entirely within a building or other en- closed structure and are not visible from the exterior thereof, provided the building or en- closed structure is otherwise legal; 7) Manu- facturer's marks on tangible products, which identify the maker, seller, provider or product, and which customarily remain attached to the product even after sale; 8) Graphics or images mounted on buses, ferries or duly licensed mass transit vehicles that legally pass through the Town; 9) News racks and news stands; 10) Overhead signs such as graphic images, which are visible only from above, such as those visible only from airplanes or helicopters, only if not visible from the street surface or public right-of-way; 11) Personal appearance items or devices of personal apparel, decora- tion or appearance, including tattoos, makeup, wigs, costumes, masks, etc. (but not including commercial mascots); 12) Search lights and klieg lights when used as part of a search and rescue or other emergency service operation; this exclusion does not apply to search lights or kleig lights used as attention attracting de- vices for commercial or special events; 13) Shopping carts, golf carts, personal scooters, human-powered taxis, horse drawn carriages and similar devices (but not including any motorized device which may legally be oper- ated on any public road); 14) Non-commercial symbols embedded in architecture including, but not limited to, by way of example and not limitation, stained glass windows, carvings on doors, frieze and bas relief statuary, color bands around buildings, foundation stones, corner stones, when such are permanently in- tegrated into the structure of a permanent building which is otherwise legal; 15) Vehicle and vessel insignia on street-legal vehicles and properly licensed watercraft: license plates, license plate frames, registration insig- nia, non-commercial messages, messages re- lating to the business of which the vehicle or vessel is an instrument or tool (not including general advertising) and messages relating to the proposed sale, lease or exchange of the vehicle or vessel; 16) Vending machines that do not display offsite commercial messages or general advertising messages; 17) Weather flags, nautical flags and pennants when dis- played on boats, in marinas, or on any land area within fifty (50) feet of water frontage, where primarily intended to be viewed from the water and which do not display commer- cial messages; and 18) Displays of merchan- dise in a store window. "Sign area" means the surface area of a sign, as measured using the procedure de- scribed in section 16A.610. "Sign program" means a program provid- ing a coordinated signing plan for multiple establishments or uses, in specified situations set forth in section 16A.525, and which util- izes one or more common elements such as color, materials, lettering, illumination, sign type, and sign shape. "Subdivision or neighborhood identifica- tion sign" means a sign placed near the en- trance to a development or subdivision and used to identify the area. "Town property" means real property over which the Town: a) holds an interest; includ- ing, without limitation, fee title ownership, easement, leasehold, and public street right- of-way; and b) has the present right of posses- sion and control. "Under marquee sign" means any sign hung or suspended below a marquee, canopy, cantilevered covered walkway, or arcade, but that is not directly attached to a building in the 172-7 (Tiburon Supp. No. 10. 3-09) 16A.305 manner that a projecting sign would be. Such signs are also known as overhead-mounted hanging signs or blade signs. "Visibility triangle" means that portion of both public and/or private property at any cor- ner bounded by the curb line or edge of a roadway of the intersecting streets and a line joining points on the curb or edge of the roadway fifteen (15) feet from the point of intersection of the extended curb lines or edges of the roadway. "Wall sign" means any sign painted on or attached parallel to the wall of a building and projecting not more than twelve (12) inches horizontally outward from the building wall. Wind blown device. Any sign activated by air or gas that visibly moves when activated. "Window sign" means a sign painted on or attached to a window, or inside a building within ten (10) feet of a window, and designed to be viewed by the general public from out- side the building in which the window is lo- cated. (Ord. No. 515 N.S., § 2 (part)) Article IV Applicability and Interpretation 16A.400 Compliance as of effective date of this chapter. The provisions of this chapter shall apply to all signs erected on or following March 20, 2009 and shall apply to all signs unlawfully erected prior to March 20, 2009, and shall ap- ply to all incomplete, unprocessed or unde- cided sign permit applications as of March 20, 2009. (Ord. No. 515 N.S., § 2 (part)) 16A.405 Compliance with applicable laws, rules, and regulations. All signs posted, erected or constructed on or following March 20, 2009 shall comply with this chapter and all other applicable laws, rules, and regulations. (Ord. No. 515 N.S., § 2 (part)) 16A.410 Requirements for associated town permits and approvals. Any associated town permit or approval required for a sign, including but not limited to 'a building permit, electrical permit, en- croachment permit, or zoning pernlit (e.g., conditional use permit or site plan & architec- tural review pcnnit) shall be obtained before the sign is erected. Application review for such permits shall not consider message con- tent or graphic design of the proposed sign. Applications for such permits may be pursued simultaneously, and such permits may be ap- proved subject to approval of all other re- quired permits. (Ord. No. 515 N.S., § 2 (part)) 16A.415 Automated teller machine (ATM). The provisions of this chapter shall not ap- ply to an automated teller machine (ATM) or the affiliation logos that are an integral part of the ATM. This chapter shall apply to signs or advertising that are not essential to the func- tioning of the ATM. Any ATM shall be sub- ject to site plan and architectural review ap- proval pursuant to chapter 16 of the Tiburon Municipal Code. (Ord. No. 515 N.S., § 2 (part)) Article V Sign Application and Permit Procedures 16A.500 Sign permit required. Except for those signs that are specifically exempt under sections 16A.710, 16A.725, 16A.800, or 16A.810, all signs shall require the approval of a sign permit and shall follow the permit procedures set forth in sections 16A.500 through 16A.540. Only signs author- ized by this chapter- may be built, installed, displayed, erected or maintained within the town. All signs are subject to a permit re- quirement unless expressly exempted. Signs exempted from the permit requirement still must satisfy all applicable rules. (Ord. No. 515 N.S., § 2 (part)) (Tiburon Supp. No. 10, 3-09) 172-8 16A.505 16A.505 Application and completeness review. Any person seeking a permit for a sign, for which a permit is required, shall submit to the director of community development a written application for such sign permit. The director of community development shall prepare a sign permit application form and provide it to any person on request. The same form may be used for both the application and the decision thereon. A single application may be filed to apply for multiple signs on the same site or for the same establishment. A sign permit appli- cation is complete only when it is accompa- nied by the appropriate application fee, in an amount set by resolution of the Town Council. In the case of after-the-fact permitting, the otherwise applicable fee shall be doubled. The application form may call for the following information: (a) Name, address and telephone number of the applicant and, if applicable, the name, address, and telephone number, as well as the contractor's license number, if any, of the sign contractor; (b) Street or site address, assessor parcel number, zoning district, and use (i.e., single family residential, multi-family residential, commercial, or other) of the property where the proposed sign(s) are to be displayed; (c) Accurate, dimensioned, and scaled site plan showing the location of property lines, buildings, parking areas, driveways, landscaped areas, and existing and proposed signs on the site; as to existing signs, informa- tion as to whether each was permitted or ex- empt from permitting; (d) Accurate and scaled elevation draw- ings depicting proposed signs and the pro- posed colors of the signs, and accurate and scaled elevations showing existing signs lo- cated elsewhere on the property; (e) The total number of signs proposed and the aggregate sign area of those signs; (f) Number and linear length in feet of each establishment frontage for the use or es- tablishment; (g) Total allowance of sign area in square feet in accordance with the type of use; (h) For each sign proposed or existing and to remain: (1) Proposed sign type; (2) Proposed sign materials; (3) Proposed sign area and dimensions (length, width, and height); (4) Proposed sign colors; (5) Proposed method of illumination (if any); (6) Proposed form of sign attachment (be specific); (7) Proposed duration (permanent or tem- porary); (i) Written evidence of all owners' con- sents, such as land owner or lessor; 0) A statement as to whether the use or establishment occupies the entire building, and if not, the number of other uses or estab- lishments in the building; (k) A statement as to whether the sign is intended to be used in whole or in part for off- site commercial messages, advertising for hire or general advertising; (1) A statement as to whether any sign would be located off-site (not on the property where the use is located), and if so, a precise description of the proposed off-site location; (m) A statement as to whether the sign would project over town property or street right-of-way, and if so, the proposed distance of encroachment and the height of the sign above ground level at the area of encroach- ment; (n) A statement or graphical description as to whether the proposed sign, or any part of it, is proposed to utilize any of the following physical devices: sound; odor, smoke, flashing images, changeable electronic display, fumes or steam; rotating, moving or animated ele- ments; activation by wind or forced air; neon or other visible discharge gases; fluorescent or 172-9 (Tiburon Supp. No. 10, 3-09) 16A.505 day-glow type colors; flashing or strobe light- ing; liquid crystal displays or other video-like methods; use of live animals or living persons as part of the display; mannequins or statuary; (o) A statement as to whether the specific permitted use for which the sign is proposed to be erected or displayed, or any currently existing sign thereon associated with the spe- cific permitted use, is the subject of any out- standing notice of zoning violation or notice to correct, including whether any such defi- ciencies are to be remedied by the proposed application; (p) Current photographs of the existing property, parcel, and/or building on which a sign is proposed to be erected or displayed; (q) In the case of any proposed sign that is subject to a discretionary process, such as a variance, conditional use pennit, site plan and architectural review, or sign program, all rele- vant information required by such process(es); (r) The director of community develop- ment is authorized to modify the list of infor- mation to be provided on a sign permit appli- cation; however, additions may be made only after thirty (30) days public notice. The director of community development shall determine whether the application con- tains all the required information or contains sufficient information to act on the applica- tion. If it is determined that the application is not complete, the applicant shall be so notified in writing within thirty (30) days of the receipt of the application; the notice shall state the points of incompleteness and identify any ad- ditional information necessary to make the application complete. The applicant shall then have one opportunity, within thirty (30) days, to submit the required information; failure to do so within the thirty-day period shall render the application void. In the case of a timely resubmission, the application fee need not be paid a second time. (Ord. No. 515 N.S., § 2 (part)) 16A.510 Review authority. Review authority over sign permits pursu- ant to the provisions and requirements of this chapter is vested with the following review authorities: (a) Director of community development. The director of community development has the authority to: (1) Act on a Sign Permit application, as set forth in section 16A.535(a). (2) Act on requests for Minor Exception, as set forth in section 16A.535(b). (3) Act on requests for time extension to an approved sign permit, pursuant to section 16A.540. (4) Act on requests for time extension to an approved sign program, pursuant to section 16A.540. (5) Refer any sign permit application to the design review board for action, pursuant to section 16A.510(b). (b) Design Review Board. The design review board has the authority to act on: (1) Sign permit applications referred by the director of community development. (2) A sign program, and any amendments thereto, as set forth in section 16A.525. (3) Signs requiring a major exception, as set forth in section 16A.520. (4) Appeals of sign permit decisions of the director of community development. (c) Appeals. (1) General Provisions of Appeal. The appeal right arises at the earlier of: a) when- ever a written decision is delivered to the ap- plicant, or b) the time for decision has run without a written decision. In this context, "delivered" means personally delivered or placed in the U.S. Mail, first class delivery, whichever occurs first. (2) Appeals of Decisions of the Director of Community Development. A decision of the director of community development may be appealed to the design review board by any affected person within five (5) working days of the decision. The appeal process is begun (Tiburon Supp. No. 10, 3-09) 1 72-1 0 16A.510 by filing a written notice of appeal with the town clerk particularly stating the matter ap- pealed from and the grounds for the appeal. The design review board shall hear the appeal and render a decision on the appeal within thirty (30) days of the filing of the appeal. The timely decision requirement may be waived by the applicant and/or appellant. (3) Appeals of Decisions of the Design Review Board. A decision of the design re- view board, except on appeal from a decision of the director of community development, may be appealed to the town council by any affected person within ten (10) days of the decision. The appeal process is begun by fil- ing a written notice of appeal with the town clerk particularly stating the matter appealed from and the grounds for the appeal. The town council shall hear the appeal and render a de- cision on the appeal within forty-five (45) days of the filing of the appeal. The timely decision requirement may be waived by the applicant and/or appellant. Following a final decision by the town council, the applicant or any appellant may seek judicial review of the final decision on a sign permit application pursuant to California Code of Civil Proce- dure section 1094.5 and or 1094.6 or 1094.8, as applicable. Such judicial review must be filed within thirty (30) days of notice of final decision, unless State law otherwise provides. (4) Status Quo. During the pendancy of appeal or judicial review, the status quo of the subject sign(s) shall be maintained. This does not apply when an existing sign, or sign under construction, by virtue of its physical condi- tion, constitutes a significant and immediate threat to public safety. (Ord. No. 515 N.S., § 2 (part)) 16A.515 Criteria for approval of sign permit applications; Conditions. (a) If a sign permit application complies with all requirements of this chapter and with all other applicable laws, rules and regula- tions, the permit shall be approved and issued within the required time limits set forth in sec- tion 16A-535. (b) A sign permit application may be ap- proved subject to conditions, so long as those conditions are required by this chapter or some other applicable law, rule or regulation. Compliance with all applicable safety codes, including but not limited to building and elec- trical codes, shall be a condition of all Sign permit approvals, where applicable. 16A.520 Exceptions (major and minor). When a proposed sign(s) deviates from the provisions and standards of this chapter per- taining to sign area, height, setback, spacing, location, placement, type, number, orientation, illumination, or safety factors for construction materials and methods, an Exception request may be filed with a Sign permit application, subject to the following: (a) Minor Exception. A minor exception applies to requests that deviate from the sign provisions for sign area or sign height by less than twenty (20) percent. Notwithstanding the foregoing, any sign area Exception involving no more than five (5) square feet, or involving transfer of sign area from one frontage to an- other pursuant to section 16A.720(c), shall be deemed a minor exception. (b) Major Exception. A major exception is any exception other than that described in subsection (a) above as a minor exception. (c) Findings for Approval of an Excep- tion. The following findings shall be made in rendering a decision on a request for excep- tion: (1) The exception is necessary to over- come special or unusual site conditions such as exceptional building setbacks, and lack of or limited visibility due to orientation, shape or width of the property and/or building im- provements; (2) The exception is appropriate in that it would allow signage that would be in har- 172-11 (Tiburon Supp. No. 10, 3-09) 16A.520 moray and scale with the building and site im- provements, and would be physically corn- patiblc with other conforming sibnls in the immediate vicinity; and (3) The exception would permit an im- provement that would not be detrimental or disruptive to the safety or flow of vehicular or pedestrian traffic either on-site or off-site. (d) Not Applicable to Prohibited Signs. The exception process shall not apply or be used to permit any prohibited sign, as set forth under section 16A.805 of this chapter. Excep- tions may not be used to authorize off-site commercial messages on permanent structures in fixed locations. (Ord. No. 515 N.S., § 2 (part)) 16A.525 Sign programs. The establishment of a sign program is en- couraged as an alternative to the sign stan- dards and provisions contained in this chapter under certain circumstances, as follows: (a) Purpose. Sign programs are specifi- cally intended for properties with multiple establishments on one site or multiple signs for uses with special sign needs. Sign pro- grams shall be used to achieve aesthetic com- patibility among the signs within a project, and may allow some flexibility in the number, size, height, type, setback, spacing, illumina- tion, location, orientation, and placement of signs. (b) Applicability. Sign programs are per- mitted specifically for shopping centers, mul- tiplc-tenant buildings, lots or parcels with more than five (5) buildings or establishments under the same ownership or within the same development, motor vehicle fueling stations, and movie or live stage theaters. Sign pro- grams shall not be used to allow signs that are expressly prohibited by this chapter. (c) Design Continuity. Sign programs shall be designed so that all signage has a con- sistent and common structural and physical design theme and placement, utilizing com- mon materials, colors and illumination. (d) Findings Required for Approval of a Sign Program. The design review board shall make the following findings in rendering a decision on an application for a sign program: (1) AlI of the signs contained in the pro- gram have one or more common design ele- ments such as placement, colors, architecture, materials, illumination, sign type, sign shape, letter size and letter type; (2) All of the signs contained in the pro- gram are in harmony and scale with the mate- rials, architecture, and other design features of the buildings and property improvements they identify, and the program is consistent with the general design principles specified in sec- tion 16A.620. (3) The amount and placement of signage contained in the program are in scale with the subject property and improvements, as well as the immediately surrounding area. (Ord. No. 515 N.S., § 2 (part)) 16A.530 Permits issued in error; Revocation or cancellation. (a) Permits Issued in Error. Any approval or permit issued in error may be summarily revoked by the director of community devel- opment upon written notice, to the holder, stating the reason for the revocation. "Issued in error" means that the permit is not in com- pliance with rules, regulations or other provi- sions contained within this chapter and there- fore should not have been issued in the first place. (b) Revocation or Cancellation. The di- rector of community development may revoke any approval or pen-nit upon refusal or failure of the permittee to comply with the provisions of the permit or this chapter after written no- tice of non-compliance and at least fifteen (15) days opportunity to cure. The notice and opportunity to cure does not apply when a sign, by virtue of its physical condition, con- stitutes an immediate and significant threat to public safety. (Ord. No. 515 N.S., § 2 (part)) (Tiburon Supp. No. 10, 3-09) 172-12 16A.530 16A.535 Processing and noticing requirements. The following processing and noticing pro- cedures shall be followed prior to rendering a decision on an application for a sign permit, an exception or a sign program: (a) Sign Permit, Administrative Ap- proval. Following review of a sign permit ap- plication for compliance with the provisions of this chapter and other applicable laws, rules and_ regulations, the director of community development, or his/her designee, may render a decision on the application. A decision on a sign permit application may be rendered with- out notice to surrounding property owners. (b) Minor Exceptions. Following review of an application for and prior to rendering a decision on a minor exception, property own- ers contiguous to the subject property shall be mailed a notice informing them of the director of community development's intent to act on the application. Good faith efforts to provide a copy of the notice to adjacent establishments shall also be made. The notice shall indicate that the director of community development will take action on the application, on or after a specified date, which date shall be at least ten (10) days following the date of the notice. (c) Major Exceptions and Sign Programs. Major exceptions, sign programs (including amendments thereto), appeals, and other sign- related applications requiring design review board action shall require notice of the hearing date to be mailed to property owners within three hundred (300) feet of the subject prop- erty a minimum of ten (10) days prior to the hearing. Good faith efforts to provide a copy of the notice to adjacent establishments shall also be made. (d) Prompt Review and Decision. Review and decision on any sign permit, exception, or sign program application shall be prompt and expeditious and in no event shall exceed thirty (30) days after the application is accepted as complete. If a decision is not rendered within the required time limit the application shall be deemed denied. In the case of an appeal, the appeal shall be heard and acted upon within thirty (30) days of its filing. Time limits may be waived by an applicant and/or appellant. Judicial review may be in accordance with the provisions of Code of Civil Procedure sec- tions 1094.5 and 1094.6 or 1094.8, as applica- ble. (e) Multiple Sign Applications. When an application proposes two or more signs, the application may be approved either in whole or in part, with separate decisions as to each proposed sign. When a multiple sign applica- tion is denied in whole or in part, the review- ing authority shall specify in writing the grounds for such denial. (f) Disqualification. No sign permit ap- plication will be approved if: (1) The applicant has installed a sign in violation of the provisions of this chapter and, at the time of submission of the application, each illegal or non-permitted sign has not been legalized, removed or a remedy included in the application; (2) There is any other existing municipal code violation located on the site of the pro- posed sign(s) with the same specifically per- mitted use (other than an illegal or noncon- forming sign that is not owned or controlled by the applicant and is located at a different establishment), which has not been cured at the time of the application, unless the non- compliance is proposed to be cured as part of the application; (3) The sign application is substantially the same as an application previously denied, unless: (1) at least twelve (12) months have elapsed since the date of the last application, or (ii) substantial new evidence or proof of changed conditions is furnished in the new application; (4) The applicant has not obtained any required encroachment permit, site plan and architectural review permit, conditional use permit, variance, or other zoning permit. However, applications for such permits may 172-13 (Tiburon Supp. No. 10, 3-09) 16A.540 be processed simultaneously with a sign per- mit application. (Ord. No. 515 N.S., § 2 (part)) 16A.540 Expiration of sign permits. (a) Initial Time Limits. All sign permit, sign program and exception approvals shall expire one hundred and eighty (180) days from issuance, unless the approved sign(s) has been erected and has passed all final inspec- tions, or is underway on such date and is thereafter diligently pursued to completion. (b) Time Limits for Extensions. Prior- to expiration of a sign permit, sign program or exception, the applicant may apply to the di- rector of community development for an ex- tcnsion from the date of expiration. Upon such application, the approval may be extended one time only for one hundred and eighty (180) days from the original date of expiration. (Ord. No. 515 N.S., § 2 (part)) Article V1 General Sign Provisions 16A.600 Compliance required. All signs subject to the provisions of this chapter shall comply with the following gen- eral sign provisions. (Ord. No. 515 N.S., § 2 (Part)) 16A.605 Types of signs. Examples of sign types are presented in Figure 16A-1. A definition for these sign types is provided in section 16A.305 of this chapter. The type of sign that is permitted for an establishment shall be regulated by type of use, as specified in section 16A.700 et seq. of this chapter. (Ord. No. 515 N.S., § 2 (part)) 16A.610 Sign area: Computation/Determination of permitted sign area. To determine sign compliance with sign area limitations of this chapter, sign area shall be measured as follows: (a) Measuring Surface Sign Area. Surface area of a sign shall be calculated as follows: (1) By enclosing the extreme limits of all framing, writing, logo, representation, em- blem and other display including, but not lim- ited to, telephone numbers and internet web site addresses within a single continuous pe- rimeter composed of squares or rectangles. This method of sign measurement is depicted in Figure 16A-2. (2) When a sign is comprised of individ- ual letters, which appear as an unframed sur- face, the script and logo for each line shall be calculated separately. When distance between two lines of script is more than twice the height of the script, each line shall be counted as a separate and individual sign. (3) The area of the sign shall be taken as the area of one face. (b) Measuring Three-Dimensional Ob- jects. Signs that are spherical, conical, cylin- drical or non-geometric three-dimensional shapes shall be measured as the area of their maximum projection upon a vertical plane. The method of such sign measurement is de- picted in Figure 16A-3. (c) Measuring Double-Faced (Back-to- Back) Signs. The area of a double-faced sign where only one sign face can be seen at one time from any location shall be calculated as a single sign face. (d) Measuring Double-Faced or Multiple- Faced Signs Where More Than One Sign Face Is Visible From Any One Location. The maxi- mum area of all faces that can be seen at one time from any location shall be counted in the calculation of sign area. (e) Tubing or Strings of Lights. Illumi- nated tubing and strings of lights used to out- line a sign or portions thereof shall be in- cluded in the calculation of permitted sign area. The tubing or strings of light shall be deemed to have a minimum width of six (6) inches in the calculation of the sign area. When illuminated tubing and strings of lights border an area that forms a substantially (Tiburon Supp. No. 10, 3-09) 172-14 16A.610 closed geometric shape, which contains sign- age within this shape, all area within the closed shape shall be considered sign area. (f) Clocks and Temperature Display. Ele- ments of a sign displaying time of day and/or temperature shall be included in measuring the surface sign area. Such elements are pro- hibited if they constitute an animated or mov- ing sign as defined herein. (g) Supporting Framework, Bracing, Ped- estals or Foundations. Supporting framework, bracing, pedestals or foundations that are clearly incidental to or separate from the sign display shall not be computed as sign area. Examples of this condition would be a solid foundation or pedestal base on a monument- type sign. When such members are designed or illuminated so as to contribute to the adver- tising qualities of the sign display, the area of such members shall be computed as sign area. (h) Sign Frames. Signs that are framed or have distinguishing color background shall be measured by the entire area of the sign and background, including the framing surfaces. (Ord. No. 515 N.S., § 2 (part)) 172-15 (Tiburon Supp. No. 10, 3-09) 16A.610 Figure 16A-1: Types of Signs Roof (Not Permitted) SIG?r .I Wall Ll S113N Projecting SIGN SIGN 9 A`' 0 Mansard Sign Types of Freestanding Signs Marquee Sign S G Changable S 1 G N rz ropy ?anel Monument Multi Tenant Monument Poie/Pylon Changable Copy Figure 16A-2: Measuring Surface Sign Area tv is I ES 7-*Ls, SHOE SHOP T Sign Ar" : t5 s q. Ft FE SHOE _ MOP _i luwl = X3.5 tqo it Under Marquee window (diagram represents two framed windows) F SIGN dr JAMES 4. SHOE SHOP Sim Area = 24 std. F'k (Tiburon Stipp. No. 10, 3-09) 1 72-1 6 16A.615 Figure 16A-3: Measuring Three-Dimensional Signs SHOES Sign Ame - 6 st_ Ft 16A.615 Location, placement and safety rules. The location and placement of a sign shall be subject to the following: (a) On-Site Location Only. All signs displaying commercial messages shall be located on the same site, building or development as the subject estab- lishment, except as otherwise pen~litted by the pro- visions of this chapter. (b) Hazardous Location. No sign may be placed or located in such a manner as to constitute a safety hazard or to impede the public use of the public right of way, by factors including, but not limited to, sight distance and tripping hazard; and no sign shall be erected, mounted or displayed in such a manner that it blocks or impedes the normal pedestrian use of public sidewalks. (c) Prohibited Mountings. Other than official government signs or warning signs required by law, no sign shall be placed in or upon median strips or islands, bridges, benches, traffic signals, utility poles, utility equipment, street lights, traffic signs, traffic sign posts or supporting structures, or on an- chor wires or guy wires. No sign may be cut, burned, marked or in any other manner displayed on a cliff, hillside or tree. (d) Intersection Visibility. Signs erected or maintained at or near any street intersection may not obstruct the free and clear vision of drivers and pedestrians. Other than traffic control signals, no sign shall be installed in the visibility triangle at intersections. (e) No Obstruction of Exits, Windows and Safety Equipment, etc. No sign shall be erected in- any manner where a portion of the sign or its sup- ports would interfere with the free use of any fire escape, exit or standpipe, or obstruct any required stairway, door, ventilator, window, handicapped ramp or access, or required parking space. (f) Maintenance of Adequate Sight Distance. No sign shall be erected in any manner or location where it will physically impede or cause hazardous obstruction to the visibility of vehicles or persons entering or exiting doorways or driveways. (g) General Placement of Signs. The permitted sign(s) for an establishment shall be placed on the street front face or elevation of the building where the establishment is located (see definition for es- tablishment frontage in section 16A.305). Where an establishment is located in a building that has no street frontage, is located on a one-way street, or where public visibility of the front face or entrance of an establishment is limited or impaired, the per- mitted sign may be placed on the side or rear face or elevation of the building where the establishment is located. (h) Establishment Frontage on Corner Lots. On corner lots where establishment frontage exists on two streets, signs may be placed on both frontages, but the permitted square footage for each establish- ment frontage may be transferred from one frontage to another only by granting of an exception. (i) Establishment frontage on a public parking lot or public parking structure, or publicly-traveled waterway. Where establishment frontage exists on a parking lot or parking structure generally open to the public, or on a publicly-traveled waterway such as San Francisco Bay, this establishment frontage shall be considered the same as establishment front- age on a public street when determining permitted sign area. (j) Placement of Wall and Window Signs. No wall sign shall project more than twelve (12) inches from the wall to which it is affixed; nor shall any portion of a wall sign extend above a roof line in such manner that it becomes a roof sign. No more than twenty-five (25) percent of the area of a framed window or a continuous window area shall 172-17 (Tiburon Supp. No. 10, 3-09) 16A.615 be used for a sign or signs. When a window con- tains multiple panes, the framed area of the whole window, inclusive of the individual paned areas, shall be used in calculating the permissible sign area. Window signs shall be counted against the overall permitted sign area and number, and shall be subject to the same provisions and limitations as for wall signs. (k) Location and Placement of Marquee and Under Marquee Signs. The location and placement of marquee signs and under marquee signs shall be subject to the following provisions: (1) A minimum vertical clearance of eight (8) feet above the sidewalk, path, public property, pub- lic right-of-way or easement shall be maintained. (2) Signs shall not project beyond the ends or sides of the marquee. (3) Signs placed on the face of a marquee may extend above the top of the marquee provided that this extension is not more than one-half the height of the marquee face and is below the building roof- line. (4) An under marquee sign shall not exceed ten (10) square feet in area. (5) When marquee and under marquee signs are illuminated, the conduit and wiring that pro- vides the source of illumination shall be concealed or screened, to the extent feasible. (1) Location and Placement of Projecting Signs. The location and placement of projecting signs shall be subject to the following provisions: (1) A projecting sign shall not exceed ten (10) square feet in area. (2) A minimum vertical clearance of eight (8) feet above the sidewalk, path, public property, pub- lic right-of-way or easement shall be maintained. (3) Signs shall be placed at or below the sill of the second floor windows in a multi-story building or below the cave line of a single-story building. Projecting signs shall be permitted for a ground floor establishment only. (4) Signs, including any structural members, shall not project more than a distance of six (6) feet from the building face. In no case shall any sign project to a distance nearer than two (2) feet from the street curb. (5) Signs placed near the side property line or side building wall line facing two streets or rights- of-way shall be set back from the comer to maintain appropriate sight distance. (6) When projecting signs arc illuminated, the conduit and wiring that provides the source of illu- mination shall be concealed or screened, to the ex- tent feasible. (7) No projecting sign shall extend above the top level of the wall or in any other manner such that it becomes a roof sign. (m) Location and Placement of Mansard Signs. Mansard signs shall be located on the lower two- thirds (2/3) of the roof slope and shall not project more than three (3) feet from the sloped roof face at any point. The sign ends of a mansard sign shall be designed to return and be flush with the mansard roof, so that the rear of the sign and the sign bracing arc not visible. (n) Location, Placement and Illumination of Awning Signs. The location and placement of awn- ing signs shall be subject to the following provi- sions: (1) Signs may be placed on the front and sides (ends) of the valance of the awning. However, each sign placed at these locations shall be counted as one of the permitted signs for the establishment. (2) The sign shall cover no more than fifty (50) percent of the front face area of the awning and no more than fifty (50) percent of the awning sides (ends). (3) When awning signs are illuminated, the illumination shall be limited to the sign script and/or logo only. Illumination designed to light the entire awning is not permitted. (4) Lettering on awning signs shall be con- tained in a single line limited to the awning face (valance) perpendicular to the ground below. (o) Location and Placement of Freestanding Signs. The location and placement of freestanding signs shall be subject to the following provisions: (1) No freestanding sign shall be placed in any location that the town determines would interfere with vehicular or pedestrian safety. (2) A freestanding sign shall not exceed eight- een (18) feet in height; and a monument sign shall (Tiburon Stipp. No. 10, 3-09) 1 72-1 8 16A.615 not exceed five (5) feet in height. A freestanding sign on a single support pole shall not exceed twelve (12) feet in height. Shopping centers located on parcels over three (3) acres in area may have a twenty (20) foot high freestanding sign. (3) Freestanding signs are permitted on lots or parcels that have a minimum frontage width of fifty (50) feet. (4) Freestanding signs are permitted on lots and parcels with a minimum building setback from the property line of fifteen (15) feet, except along Ark Row (72 through 130 Main Street). (5) No freestanding sign shall be less than four (4) feet from any other sign, building, or structure. (6) Freestanding signs are prohibited on Lower Main Street (1 through 55 Main Street). (p) Changeable Copy Signs. Changeable copy signs are allowed only in conjunction with non- residential uses. The maximum sign area devoted to changeable copy on any sign shall not exceed fif- teen (15) square feet. Lighting shall be external in- direct only. Maximum height is eight (8) feet. Mounting methods are limited to wall, window, marquee, and freestanding. (q) Signs on. Historic Buildings. Signs located on buildings designated by the town council as his- torical landmarks, or on buildings listed on the Lo- cal Historic Inventory of Buildings Located in Downtown Tiburon, adopted by resolution of the town council, shall be compatible with, and shall not detract from, the historic character and defining elements of the building. (Ord. No. 515 N.S., § 2 (part)) 16A.620 General design principles. The town encourages signs requiring a sign per- mit to employ the following principles of design: (a) Sign Design. Should be physically com- patible with the building/surroundings. (b) Sign Colors and Materials. Should be: (1) Physically compatible with the build- ing/surroundings. (2) Metal/reflective materials to be matte or non-glare surface. (3) High quality and durable materials. (c) Multiple-Tenant Buildings, Uniform Treatment. A uniform treatment of sign type, cot= ors, materials, design and illumination is encour- aged for shopping centers and multiple-tenant buildings. When new signs are proposed for exist- ing buildings with multiple tenants and signs, such signs should reflect where possible the general sign type, colors, materials, design and illumination that is prominent on the building. Adoption of a sign program pursuant to section 16A.525 is highly rec- ommended for shopping centers and multiple-tenant buildings to reduce processing time for sign permit applications and facilitate compliance with town regulations. (d) Downtown Area Signs. The following addi- tional principles of design are encouraged for signs located in Downtown Tiburon, and are derived from the Downtown Tiburon Design Handbook, at pages 49-55, which may be referenced on the Town of Tiburon website for further guidance. (1) Signs should physically complement the architecture of the building or storefront. (2) Signs should preserve the transparency of the storefront. (Ord. No. 515 N.S., § 2 (part)) 16A.625 Illumination standards. The illumination of signs from an artificial source shall be minimized to avoid light spillage, nuisance, momentary blindness or other hazard, unreasonable brightness, glare, or other annoyance, disability, or discomfort to persons within view of such light sources. Exterior lighting shall be de- signed to eliminate off-site spread of light through the use of hooded, low-level, low-wattage light fix- tures, which cast light in a downward direction. When illumination is proposed, it shall be subject to an electrical permit. The required sign illumination standards are as follows: (a) Sign Illumination Regulated by Type of Land Use and Sign Type. The type of sign illumina- tion (if any) permitted is as specified in section 16A.700 et seq., and as otherwise set forth in this chapter. (b) Allowable Illumination. All lighting shall comply with the current lighting code requirements adopted pursuant to chapter 13 of the Tiburon Mu- 172-19 (Tiburon Supp. No. 10, 3-09) 16A.625 nicipal Code. The following types of illumination are allowable: (1) Halo-Type Illumination. The light source is concealed behind an opaque face and the rays of illumination are projected outwards toward the edge of the sign forming a "halo" effect around the exte- rior of the sign. Lighting that passes through the face or individual lettering of the sign is not al- lowed. (2) External, Indirect Illumination. The light source is exposed and directed toward the sign face but is shielded or concealed from view with proper shields or glass lenses to avoid glare. Examples of external illumination include gooseneck light fix- tures and ground mounted light fixtures. (3) Reflective Illumination. Illumination that is not florescent or electrically charged, but that re- sponds to light, such as from passing vehicle head- lights, by shining or glowing. (4) Neon. Neon or other visible discharge gas may be used only on non-residential establishments and shall not exceed ten (10) percent of the sign area. (c) Exposed Lighting. Signs using exposed light sources, including but not limited to neon tub- ing or visible discharge gas, may be conditionally approved such as to receive final approval only when, within sixty (60) days of commencement of operation of the lighting and sign, the director of community development finds that the light from the sign does not cause unreasonable glare or an- noyance to persons of ordinary sensibility. When such condition is applied, the sign owner must im- mediately inform the director in writing of the commencement of operation of the lighting and sign such that the director's review may proceed expedi- tiously. Failure to so notify the director shall toll the commencement of the sixty (60) day review period commensurate with the delay in written notification. The director's finding as described above may be made only after a duly noticed hearing at which evidence is taken and a written decision is issued. The director of community development's inquiry shall not include consideration of the message con- tent of the sign, and shall be restricted to the physi- cal method of presentation (i.e. lighting) of the mes- sage. (d) Illumination that is Prohibited. The follow- ing types of illumination are prohibited: (1) Blinking, flashing or fluttering lights or illumination that has a changing light intensity, brightness or color. (2) Animated or moving messages. (3) Searchlights used for commercial advertis- ing purposes. (4) Internal illumination that passes through the face or lettering of a sign. (5) Electronic (e.g. LED, LCD, and video- type). (Ord. No. 515 N.S., § 2 (part)) Article VII Sign Standards 16A.700 Regulation by use. The size, type, number, illumination, and other physical characteristics of signs shall be regulated by the residential or non-residential nature of the use. Except for those signs not subject to a sign per- mit under sections 16A.800 and 16A.810 of this chapter, or signs authorized through approval of a sign program under section 16A.525 of this chapter, all sign applications shall comply with the standards and limitations set forth in this section, unless the Town grants an Exception pursuant to section 16A.520. (Ord. No. 515 N.S., § 2 (part)) 16A.705 Allowance-Number of signs permitted. The maximum number of signs that are permitted shall be regulated by use as specified below. Where more than one sign is permitted for a use, the com- bined area of the signs shall not exceed the sign area limit that is allotted. (Ord. No. 515 N.S., § 2 (part)) 16A.710 Signs on residential uses. (a) Residential Signs. Legal residential uses may erect, maintain and display signs as described in this section. Unless otherwise specified, the signs described in this section are not subject to a permit, but still must conform to the rules stated in this sec- tion. Transient occupancy uses (hotels, motels, bed (Tiburon Supp. No. 10, 3-09) 172-20 16A.710 and breakfast establishments, etc.) are not governed by this section. (b) Single Family and Two-Family Residences. On legal, detached, single family residential uses and on legal, attached or detached two-family resi- dential uses, each dwelling unit may display, at all times and in all zones, a total of eight (8) square feet of sign face, subject to: (1) Number of sign faces: not limited; maxi- mum area of any one sign face: eight (8) square feet; maximum height of any freestanding sign: eleven (11) feet; illumination: not allowed; mount- ing methods: wall, window, door, fence, or free- standing; (2) Acceptable message types: non- commercial; nameplate, garage-sale signs, and signs described in Civil Code 713 (temporary real estate signs), as follows: a. Nameplates (on-site only, which may in- clude street address) may not be taller than eighteen (18) inches. b. Other temporary signs for special events, such as garage sales, wedding receptions, etc., (on- site or off-site) on display on the day of the adver- tised event only, sunrise until event closes, but not later than sunset; maximum area per sign: four (4) square feet; maximum display area of all signs: eight (8) square feet; total number of signs : four (4). C. Temporary on-site signs as permitted by California Civil Code 713, subject to: maximum number: one (1) per parcel; maximum display face area per sign: three (3) square feet; illumination: not allowed; physical type: attached or freestanding; display time: when the subject property is on the market and up to ten (10) calendar days thereafter. (3) Pre-Election Period. During the time period that begins forty-five (45) days before and ends five (5) days after a special, general, or primary election, the total display area for non-commercial messages on temporary structures may be increased to sixteen (16) square feet. Such signs may be displayed only with the consent of the owner or legal occupant, may not project above the roofline of any building on the same parcel, and may be posted on walls or fences or windows, but not on trees or other plants. Illumination is prohibited. (4) Flags, pursuant to section 16A.810, are not included within the limits of this subsection. Flags are subject to: number of freestanding poles per parcel: one (1); maximum height of freestanding flag pole: twenty-four (24) feet; height of the flag: no more than one-fourth (1/4) the height of the pole; number of flags per free standing pole: not limited; total display area of all flags (measured one side only): sixty (60) square feet; image types: no com- mercial images on residential uses. Illumination is prohibited. (5) Neighborhood signs. Near any major street entrance to a neighborhood or housing develop- ment, the developer or the homeowners' association may install a sign, subject to: maximum height, five (5) feet; maximum length, six (6) feet; maximum area of display face, twelve (12) square feet; illumi- nation, not permitted; copy, permanent image only with no changeable or changing images and no off- site commercial messages. (c) Multi Family Residential-Units. On legal, attached, multiple family residential uses, at all times and in all zones, each individual dwelling unit may display signs, subject to: (1) Number of sign faces: not limited; maxi- mum size of any one sign face: eight (8) square feet; illumination: not allowed; mounting methods: wall, window, door, fence; freestanding signs are not allowed; (2) Acceptable message types: non- commercial; nameplate, garage-sale signs, and signs described in Civil Code 713 (temporary real estate signs), as follows: a. Nameplates (on-site only, which may in- clude street address) may not be taller than eighteen (18) inches; b. Other temporary signs for special events, such as garage sales, wedding receptions, etc., (on- site or off-site) on display on the day of the adver- tised event only, sunrise until event closes, but not later than sunset; maximum size per sign: four (4) square feet; maximum display area of all signs: eight (8) square feet; total number of signs : four (4). 172-21 (Tiburon Supp. No. 10, 3-09) 16A.710 C. Temporary on-site signs as permitted by California Civil Code 713, subject to: maximum number: one (1) per parcel; maximum display face area per sign: three (3) square feet; illumination: not allowed; physical type: attached or fi-cestanding; display time: when the subject property is on the market and up to ten (10) calendar days thereafter. (3) Pre-Election Period. During the time period that begins forty-five (45) days before and ends five (5) days after a special, general, or primary election, the total display area for non-commercial messages on temporary structures may be increased to sixteen (16) square feet. Such signs may be displayed only with the consent of the owner or legal occupant, may not project above the roofline of any building on the same parcel, and may be posted on walls or fences or windows, but not on trees or other plants. Illumination is prohibited. (4) Flags, pursuant to section 16A.810, are not included within the limits of this subsection. Flags are subject to: number of flags per dwelling unit: not limited; total display area of all flags (measured one side only): sixty (60) square feet; image types: no commercial images on flags on residential uses. Illumination is prohibited; no freestanding flag poles allowed. (5) Neighborhood Signs. Near any major street entrance to a neighborhood or housing develop- ment, the developer or the homeowners' association may install a sign, subject to: maximum height, five (5) feet; maximum length, six (6) feet; maximum area of display face, twelve (12) square feet; illumi- nation, not permitted; copy, permanent image only with no changeable or changing images and no off- site commercial messages. (Ord. No. 515 N.S., § 2 (part)) 16A.71.5 Signs on the public right of way and signs on town property. Signs on the public right of way and on town property are regulated by town council Resolution No. 03-2009, or the most current successor thereto. (Ord. No. 515 N.S., § 2 (part)) 16A.720 Signs on non-residential uses. Signs located on non-residential uses shall be permitted sign area based on the linear distance in feet of establishment frontage (as defined in section 16A.305), as follows: (a) The allowable sign area for any establish- ment shal l be one (I ) square foot of sign area for each four (4) linear feet of establishment frontage. Additional (e.g., second and third) floor uses, if dif- ferent uses than ground floor uses, shall have a fifty percent (50°/,) establishment frontage allowances to ground floor uses. (b) For establishments or uses with less than twenty (20) linear feet of establishment frontage, a sign area allotment of five (5) square feet shall be allowed without the granting of an exception. (c) For a parcel with more than one (1) estab- lishment frontage, or where an establishment is con- tained in more than one (1) building, each estab- lishment frontage shall be considered and calculated separately in determining allowable sign area. Transfer of sign area from one establishment front- age to another where an establishment has more than one (1) establishment frontage maybe allowed with the granting of a minor exception. (d) A maximum of two (2) permanent signs shall be permitted per frontage for each establish- ment except as follows: (1) There shall be no more than one (1) free- standing sign per lot or parcel, except that lots or parcels greater than one acre in area may have up to three (3) freestanding signs. (2) There shall be no more than one (1) project- ing sign per establishment. (e) A shopping center may erect and display an additional sign listing tenants within the center, sub- ject to: maximum area: eighty (80) square feet; lo- cation: may be freestanding. (f) A multiple-tenant building may display an additional sign listing tenants in the building, sub- ject to: maximum area: twenty-five (25) square feet; location: may be freestanding. (Ord. No. 515 N.S., § 2 (part)) (Tiburon Supp. No. 10, 3-09) 172-22 16A.725 16A.725 Other non-residential use signs. (a) On non-residential uses, temporary and in- cidental signs may be erected, maintained and dis- played according to this section. Unless otherwise specified, the signs described in this section may be displayed in addition to those described in section 16A.720, and are not subject to a permit. (b) Non-Commercial Messages. In addition to signs authorized or exempted by other sections, and in addition to those signs allowed under the mes- sage substitution provision, all legal non-residential uses may erect, maintain and display signs exclu- sively used for non-commercial messages, as de- scribed in this section. If the mounting device quali- fies as a "structure" under the Building Code, then all relevant requirements of that and other safety codes must be satisfied. Total number of such signs is not limited, but the total sign area is limited to four (4) square feet at all times. (c) Pre-Election Period. During the time period that begins forty-five (45) days before and ends five (5) days after a special, general, or primary election, the total display area for non-commercial messages on temporary structures may be increased to sixteen (16) square feet, with no individual sign to exceed eight (8) square feet. Such signs may be displayed only with the consent of the owner or legal occu- pant, may not project above the roofline of any building on the same parcel, and may be posted on walls or fences or windows, but not on trees or other plants. (d) Temporary on-site signs as permitted by California Civil Code 713, subject to: maximum number: two (2) per parcel; maximum display face area: six (6) square feet per sign; display time: when the subject property is on the market, and up to ten (10) days thereafter. (e) Flags. Non-residential uses may display flags with non-commercial images or on-site com- mercial images, subject to: Maximum number of poles per parcel: one (1); maximum height of any freestanding pole: twenty-four (24) feet; maximum number of flags: three (3); maximum size of any one flag: twenty (20) square feet; total area (meas- ured one side) of all flags on a given parcel or use: sixty (60) square feet; mounting: directly or on shafts attached to a wall, door, window or fence, or on a freestanding pole. Flags displaying commercial- messages shall be counted toward sign number, type and area; shall require a sign permit; and shall be subject to all rules and regulations set forth in this chapter. (Ord. No. 515 N.S., § 2 (part)) Article VIII Temporary Signs, Prohibited Signs, Exempt Signs and Nonconforming Signs 16A.800 Temporary signs. The following signs are considered temporary and may be posted for a limited period of time without first obtaining a Sign permit in accordance with the provisions of this chapter. If the message is commercial in nature, then the sign must be on-site. (a) Grand Opening and Other Special Event Signs. Grand opening and other special event signs of a short-term and temporary nature may be erected without a Sign permit subject to the follow- ing: (1) No more than two (2) such signs, not ex- ceeding twelve (12) square feet in total or combined sign area, may be displayed per establishment at one time; (2) No such sign or signs may be displayed for a period exceeding thirty (30) consecutive or non- consecutive days in any calendar year, after which time the signs shall be promptly and completely removed. Thus, by means of example, if an estab- lishment displays a sale sign or signs without a permit for a period of twenty-one (21) days begin- ning on January 1, and subsequently, on February 1, begins displaying a different sale sign or signs without a permit, the new sign or signs must be re- moved by February 10, and no additional signs may be displayed in reliance on this section during that calendar year without being in violation of this sec- tion. (3) Examples of special event signs include, but are not limited to, signs displaying a special sale, grand opening, business closing, or a fund drive for a non-profit establishment. (b) Temporary Construction Signs. Maximum of three (3) in number per site, and no more than six (6) square feet per sign for residential construction 172-23 (Tiburon Supp. No. 10, 3-09) 16A.800 and twelve (12) square feet per sign for non- residential construction. No illumination is pennit- ted. Such signs shall be permitted through the dura- tion of construction and shall be removed no later than ten (10) days following completion of con- struction. (c) Temporary Use Signs. Signs for temporary uses, including but not limited to outdoor, tempo- rary or seasonal sales lots, such as Christmas tree or pumpkin sales lots, may be erected for a period not to exceed thirty (30) days. Temporary use signs shall not exceed twenty-five (25) square feet on any parcel. (d) Temporary Off-Site Signs. Maximum of three (3) in number per parcel and no more than three (3) square feet of face area per sign. No illu- mination is permitted. Display times allowed: be- tween 12:30 p.m. and 5:30 p.m. on Sundays and on one additional day, as the Town Council may estab- lish by Resolution. Location: (i) private property not located in the Downtown with the permission of the property owner; or (ii) on public property not located in the Downtown as allowed by town coun- cil Resolution No. 03-2009, or the most current suc- cessor thereto. (Ord. No. 515 N.S., § 2 (part)) 16A.805 Prohibited signs. A prohibited sign is a sign that is not allowable under the provisions of this chapter, with or without a permit. The town may require the removal or abatement of a prohibited sign. Failure of a property owner and/or lessee to remove or abate a prohibited sign within fifteen (15) days of the property owner and/or lessee's receipt of written notification (or refusal to accept delivery of such) from the town ordering the removal or abatement, shall be deemed a violation of this chapter enforceable as provided in section 16A.900 et seq. and chapter 31 of the Tiburon Municipal Code, or Business and Profes- sions Code section 5499 et seq., or any other method provided by law. The following types of signs and devices are prohibited: (a) "Portable signs," as defined in section 16A.305, including "pedestal", "A-frame", "H- frame" and "I-frame" signs, except where allowed pursuant to section 16A.800(d) or section 16A.710. (b) "Abandoned signs" means signs that have been abandoned for a period of ninety (90) days or more following the closing of an establishment on the site where the sign is located, or signs that per- tain to a time, event, or purpose that no longer ex- ists. (c) "Animated and moving signs," as defined herein, means animated and moving signs include, but are not limited to: (1) Electronic message display, blinking, flash- ing, change in light intensity, or moving signs. (2) Wind blown devices such as balloons, in- flatable objects, pennants, ribbons, streamers. (3) Signs producing sound, odor, smoke, fumes steam, or other substances. (d) "Billboards," as defined in section 16A.305 and as set forth in Section 16A.230. (e) "Dilapidated signs" means where elements of the sign surface, structural support, frame mem- bers, panels or other sign elements are clearly di- lapidated, have cause to compromise the ability of the sign to identify an establishment, or are in a condition to cause a hazard or affect public safety. (f) "Electronic signs," as defined herein. (g) "Imitative of legally-authorized signs" means signs (other than those used for traffic direc- tion) that contain or are an imitation of a legally- authorized traffic sign or signal, or contain the words stop, go, slow, caution, danger, warning or similar words; or signs that imitate or may be con- strued as other public notices, such as a zoning vio- lation, building permit, business license, etc. (h) "Internally-illuminated signs," as defined herein. (i) "Natural despoliation signs," as defined herein. 0) "Roof signs," except when qualifying as a mansard sign on a mansard roof under the provi- sions of this chapter. (k) "Signs likely to cause traffic confusion or traffic hazard" means signs or lighting that is of a size, location, movement, coloring, or manner of illumination that it: (1) Is likely to be confused with or construed as a traffic control device. (T'iburon Supp. No. 10, 3-09) 172-24 16A.805 (2) Will hide from view any traffic or street sign or signal. (3) Is not effectively shielded to prevent glare or where the lighting is of an intensity that causes glare or impairs the vision of a driver or pedestrian. (1) "Signs surfaced with or made of florescent paint or material." (Ord. No. 515 N.S., § 2 (part)) 16A.810 Exempt signs. The town has a compelling public health, safety and welfare interest in the clear, accurate and effec- tive identification of governmental and private buildings, public streets and public facilities and amenities, the safe and efficient control of traffic and parking within the town, and the expeditious notification to the public of information affecting emergency and essential public services. Therefore, unless otherwise specified, the following signs are exempt from the sign permit requirement and shall not count toward sign number or sign area limits, provided that they conform to the stated rules of this chapter and all other laws, rules and regulations: (a) Building and Street Address Signs. Each sign shall not exceed three (3) square feet in area and one (1) per building for each street frontage. Such signs must comply with the town's adopted Building Code requirements for address markings. (b) Consumer Information Signs. Signs dis- playing consumer info-nation are not included in the calculation of the allowable sign area or num- ber, if such signs are on-site and do not individually exceed one (1) square foot and, in aggregate, do not exceed five (5) square feet in area per establish- ment. Such signs shall not be illuminated and shall not contain reflective paint or material. Examples of such signs include, but are not limited to, signs dis- playing hours of operation, nameplates, association affiliations, credit cards that are accepted, and "now hiring," "hours of operation," "help wanted," "no smoking," "open," and "closed" signs. (c) Directional or Informational Signs of a Non-Commercial Nature. Private directional or in- formational signs placed on-site, which are intended to provide public safety or convenience, not exceed- ing four (4) square feet in area per sign and not to exceed eight (8) square feet in aggregate sign area per establishment. Such signs shall not be illumi- nated and shall not contain reflective paint or mate- rial. Examples of such signs include, but are not limited to, parking lot directional signs, location of restrooms, telephones, "parking in rear," "restricted area," "valet parking" and "employees only". (d) Flags. Flags displaying non-commercial images, subject to rules and limitations set forth in sections 16A.710, 16A-720 and 16A.725). (e) Legally-Authorized Signs. Signs displaying information that is authorized or required by law or regulation other than set forth in this chapter may be displayed according to said authorizing law or regu- lation. Such signs include, but are not limited to signs for traffic control, fire and police signs and other regulatory purposes, signs for public informa- tion and safety, street signs, fueling station price signs, public notices, emblems and other forms of official identification. (f) Restaurant Menus. For non-residential uses serving food on the premises to the public, a menu may be displayed on private property; the menu must be identical in size and all other respects to those made available to diners. Lighting of the menu may not cause unreasonable glare to persons of ordinary sensibility. (g) Nonstructural Repairs to and Maintenance of Conforming Signs. Repairs to, or maintenance of, a conforming sign, when such changes are non- structural. Repair and/or maintenance does not in- clude a change in colors, materials, or illumination, which modifications shall require the approval of a sign permit under section 16A.500 et seq. of this chapter or other applicable laws, rules, or regula- tions. (Ord. No. 515 N.S., § 2 (part)) 16A.815 Nonconforming signs, in general. (a) A nonconforming sign is a sign that was legally established and maintained in compliance with the provisions and requirements of all applica- ble laws in effect at the time of the original installa- tion but does not now comply with the provisions of this chapter. (b) Changes to sign materials or colors are al- lowable, subject to a sign permit, provided that any such changes comply with the provisions of this 172-25 (Tiburon Supp. No. 10, 3-09) 16A.8 15 chapter. Changes to sign text only do not require a sign permit, provided that the sign area is not thereby increased nor any other physical factor al- tered to increase the nonconformity of the sign. (c) The following additional provisions shall apply to nonconforming signs: (1) Any structural modification to, or structural alteration of, any nonconforming sign or elements thereof, or movement or relocation of a non- confonning sign, shall require immediate compli- ance with this chapter. (2) A nonconforming sign may not be changed to another nonconforming sign or structurally modi- fied or altered to extend its useful life. (3) Use of a nonconforming sign may not be re-established or continued after a use or establish- ment, with which the sign was associated, is discon- tinued for more than ninety (90) days, i.e., is an abandoned sign. (4) Signs located on, and materially associated with, the historic character of any building located on the Local Historic Inventory of Buildings Lo- cated in Downtown Tiburon, adopted by resolution of the town council, may be allowed to be re- constructed or replaced despite their non- conforming status, with the granting of a major ex- ception. (5) Any nonconforming sign shall be removed or made to conform to the provisions of this chapter if the sign has been more than fifty (50) percent damaged in terms of replacement value, or is de- stroyed, except as set forth in subsection (4) above. (Ord. No. 515 N.S., § 2 (part)) 16A.820 Nonconforming portable signs (a) Notwithstanding any other provision of this chapter, existing, lawfully-established, nonconform- ing portable signs with an expected useful life of less than fifteen (15) years must be removed as set forth in this section. (1) Unless otherwise established by the permit holder, portable signs are presumed to have an ex- pected useful life of five (5) years or less and must be removed within five (5) years of March 20, 2009. (2) If a permit holder demonstrates that a port- able sign has an expected useful life of more than five (5) years, the director of community develop- ment, or his designee, shall grant additional time for the signs to remain in place for the remainder of its useful life, not to exceed a total of fifteen (15) years from March 20, 2009. (b) The town council may adopt a resolution establishing a program for the elimination of signs with an expected useful life of fifteen (15) years or more in compliance with division 3, chapter 2.5 of the California Business and Professions Code, sec- tion 5490 et seq. or any successor statutes. (1) Prior to adopting the resolution, town staff will prepare a report that inventories and identifies any sign that would be affect by the program. The council will consider this report at a public hearing on the resolution. (2) The resolution adopting the program shall include a finding that there is a need for the regula- tions set forth therein. (c) Nothing in this section shall preclude the Town and a permit holder from mutually agreeing to remove a sign with an expected useful life of fif- teen (15) years or more upon the town's payment of reasonable compensation for the value of the sign. (Ord. No. 515 N.S., § 2 (part)) Article IX Violations and Enforcement 16A.900 Violations unlawful. It is unlawful for any person to violate any of the provisions of this chapter or to violate any of the terms or conditions of a sign permit or sign program issued pursuant to this chapter. (Ord. No. 515 N.S., § 2 (Part)) 16A.905 Violations an infraction. Any violation of the provisions of this chapter, or violation of any conditions of a sign permit or sign program approval, shall be deemed an infraction and shall be subject to penalties pursuant to section 36900 of the Government Code, as amended, and chapter 31 of the Tiburon Municipal Code, or oth- erwise as provided by state law. (Ord. No. 515 N.S., § 2 (part)) (Tiburon Supp. No. 10, 3-09) 172-26 16A.910 16A.910 Nuisance and abatement. Any violation of the provisions of this chapter is hereby declared a public nuisance and shall be sub- ject to surnmary abatement as provided by law, in- cluding Business and Professions Code sections, 5499.1 to 5499.16, Government Code sections 38773.1 and 38773.5, and chapter 31 of the Tiburon Municipal Code. (a) This section does not exclude any other lawful method of remedy available to the town. (b) Each and every day that any violation of this chapter continues shall be regarded as a new and separate offense or violation. (c) The remedies provided in this section shall be cumulative and not exclusive. (d) Any sign permit or sign program approved by the town may be subject to review and modifica- tion or revocation for cause under due process of law. (e) Signs that present an immediate and sig- nificant threat to public safety may be impounded immediately by any official of the town to protect the public safety and welfare. Impounded signs will be held for thirty (30) days. The town will make reasonable attempts to contact the sign owner and provide the owner with ten (10) days' notice to re- claim the sign upon payment of fines. Impounded signs, which remain unclaimed after thirty (30) days, may be disposed of in any manner whatsoever at the discretion of the town. (Ord. No. 515 N.S., § 2 (Part)) 172-27 (Tiburon Supp. No. 10, 3-09) TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: Mayor and Members of the Town Council From: Town Manager Public Works Department Subject: SUPPLEMENTAL STAFF REPORT Town Council Meeting April 18, 2012 Agenda Item:k,- Council Consideration of Award of Bid for the Proposed Facility for Belvedere Tiburon Joint Recreation (BTJR) Programs and Staff Offices at 600 Ned's Way - Continued from March 7, 2012 Reviewed By: BACKGROUND The staff report distributed in the Town Council packet regarding the Ned's Way project noted that a supplemental staff report would be forthcoming which would either seek a delay in consideration or provide additional information regarding possible Town Council action. Since the staff report was issued, the Belvedere City Council committee of Vice Mayor Donnell and Councilmember Telischak has met with the Town's committee, Mayor Fraser and Vice Mayor O'Donnell, to discuss the Town's request for additional financial support for the project. The outcome is set forth as the attached draft "Supplemental Agreement" (Exhibit A). If approved by the Belvedere City Council, which is meeting tomorrow to discuss the proposal, it would provide for an additional contribution from Belvedere of $250,000 for project construction, with a separate contribution toward contingency expense capped at $50,000. Staff expects to be able to report on Belvedere's determination at the Town Council meeting on Wednesday evening. There is no additional news to report regarding conversations with the Reed Union School District or regarding other possible community center sites, which were the two other avenues being pursued by the Town's Ned's Way Committee. FISCAL IMPACT To date, the Town has spent approximately $153,000 on environmental analyses, surveying, design, and bid administration costs. Factoring in these costs, the Ghilotti bid, additional Town costs (e.g. permit fees, utility installation, construction management fees) and a 15 percent contingency, the total project cost comes to $2.39 million. If the Town Council wishes to proceed with the project, the financial impact is as follows: The Town allocated $1,550,000 in this year's fiscal budget for this project. At the total project cost of $2,390,000, less the prior fiscal year expenditure of $126,000, an additional $714,000 must be appropriated to complete the project. The full amount should be appropriated despite the putative Belvedere contribution of $250,000 to $300,000 because, just as it does with grant reimbursements, the Town will process invoices and then bill Belvedere for its pro-rata portion as the project is constructed. The project will span two fiscal years, the current one and FY 2012-2013. Staff recommends it be entirely funded at this time through a budget amendment; the unspent portion will be included in next year's budget for re-appropriation. Funding for the project will come from the Town's discretionary reserves. The tentative Supplemental Agreement with Belvedere leaves in place the prior agreement between the City and the Town. In that original contract, Belvedere agreed to provide $30,000 each year, with a CPI escalator capped at 4%, to help defray the Town's capital investment. Finally, it may be necessary for the Town and Belvedere to subsidize BTJR's initial operating costs for the first two years; Tiburon's portion of this cost could be as much as $45,000 per year for two years. Per the Joint Powers Authority agreement between the City and Town, any expenses incurred on behalf of BTJR would be shared 25%/75% by the parties. This cost item will be addressed in next fiscal year's budget. NEXT STEPS If the project is approved by Council, the general timeline would be: • Contract documents could be executed in April or early May. • A preconstruction meeting could be scheduled in May. • Construction drawing approval by August. • Construction could start by September. • The work could be completed in the first half of 2013. RECOMMENDATION Staff recommends that the Town Council consider whether it wishes to proceed with the project and direct staff accordingly. If so, Council is respectfully requested to: a. Move to amend and increase the current budget by $714,000 from discretionary reserves for the construction of this project; b. Move to approve the award of a construction contract for the 600 Ned's Way Facility Project to Ghilotti Construction Company, Inc. in the amount not-to- exceed $1,683,694, plus 15 percent for contingency; c. Move to approve the Use Agreement with BTJR, authorizing the Town Manager to make minor changes as may be appropriate, finalize and execute it; d. Move to approve the Supplemental Agreement with Belvedere. If not, Council is respectfully requested to: a. Move to reject all construction bids received for the 600 Ned's Way Facility Project; b. Direct staff to explore, once again, whether there is any opportunity to work with the School District to develop a more permanent solution for the after-school program's space needs. NEW EXHIBITS 1. Draft Supplemental Agreement between Tiburon and Belvedere for 600 Ned's Way PRIOR ATTACHMENTS The following documents were attached as exhibits to the March 7, 2012 staff report, which is attached to the initial (not supplemental) staff report for this item: 1. October 11, 2010 Agreement between Tiburon and Belvedere for 600 Ned's Way 2. Use Agreement between Tiburon and BTJR for 600 Ned's Way 3. Project Cost Sheet Prepared by: Peggy Curran, Town Manager Nick Nguyen, Director of Public Works/Town Engineer SUPPLEMENTAL AGREEMENT Between Town of Tiburon and City of Belvedere Regarding Ned's Way Facility, Tiburon Recitals 1. This Agreement is entered into by the Town of Tiburon ("Town") and the City of Belvedere ("City"), together the "Parties", on this day of April, 2012, to set forth the terms and conditions for the use of offices, classrooms and related improvements anticipated to be constructed on Town property located at 600 Ned's Way in Tiburon (Facility). 2. Town and City created the Belvedere-Tiburon Joint Recreation Committee ("BTJR") pursuant to a Joint Powers Agreement ("JPA") executed in June of 1975 and most recently amended on October 8, 2001. The BTJR provides programs and services on the Tiburon Peninsula for the residents of both Parties. 3. BTJR has rented space at local Reed School District school sites, most specifically for after-school programs. Recently, space has become limited at some of the sites. BTJR is facing difficulty maintaining consistent and suitable space for its programs and requires additional programmable space to satisfy and expand local programming to meet the growing needs of the Tiburon Peninsula. 5. On October 11, 2010, the Parties entered into an Agreement providing that the City would make annual payments to the Town of $30,000 if the Town would use its monetary, land and staff resources to construct an appropriate structure for BTJR's use ("Original Agreement"). 6. The Town has developed and is considering a plan to create a facility of approximately 4,800 square feet of building, parking for approximately 26 vehicles and an outdoor play area on Town-owned land ("Facility") for BTJR use, but the project has proven to be considerably more costly than the Parties contemplated at the time of the Original Agreement. 7. To partially offset the increased costs, the Town has requested and the City has agreed to provide additional financial support for the Facility as set forth in this Supplemental Agreement. Agreement 1. CONTRIBUTION FROM CITY. The City shall contribute the following payments. A. The City will pay $250,000 (two hundred fifty thousand dollars) contribution (``Base Contribution") for the costs of the Facility, including, without limitation, design, engineering, construction management and construction costs (collectively, "Construction Costs"). After the Town has processed and paid any invoice •,•''•a k s' - i- f N.: rat D "y $ s y~ i t3 ; 5 4.6 I o,! 11 ..Z Yi a...~f. nii 5 se : % L ..5'', 4 for Construction Costs, Town will send to City a request for payment of 25% of the amount paid by Town, with appropriate documentation, until the City has fully paid the Base Contribution. City shall tender the requested payment within 30 days of receipt of the Town's request. B. In the event that-any contingencies arise during the construction phase of the project that obligate the Town to make payments beyond the original amount of the construction contract, or that the Town believes, in its sole discretion, are necessary and appropriate, the City shall also pay 25% of said contingency expenses ("Contingency Contribution") up to a maximum of $50,000 (fifty thousand dollars). As such expenses are incurred, Town will send to City a request for payment of any Contingency Contribution owing under this Agreement, with appropriate documentation. City shall tender the requested payment within 30 days of receipt of the Town's request. C. The Town's delay in submitting requests for payment to City shall not operate as a waiver of any payment due under this Agreement. D. In entering into this Agreement, the Parties contemplate that the Facility will be available for BTJR's use for a minimum of 35 years. The Town reserves the right, in its sole discretion, to decide that construction of the Facility is not an appropriate use of Town resources or, after constructing the Facility, to decide that BTJR's use of all or a portion of the Facility is not in the public's best interest. In the event that the Town does not begin construction of the Facility within five years, this Agreement will be null and void. In the event that the Town constructs the Facility but decides to terminate or reduce BTJR's use thereof after less than 35 years, Town shall refund the City's Contributions on a prorated basis as set forth below: i. The Parties will calculate the amount of any refund by (a) dividing the total amount of the City's Contributions, Initial and Contingency, by 35; (b) subtracting from 35 the number of years that the Town allowed BJTR to use the Facility; and (c) multiplying the quotient from operation (a) by the difference from operation (b). ii. Example: If the Contingency Contribution is $10,000, the City's total Contributions will equal $260,000. $260,000 = 35 = $7428.57. If the Town allowed BTJR to use the Facility for 20 years, the amount of refund that Town will owe the City will be (35-20) x 7429 or $111,429. iii. Should a portion of the building be withdrawn from BTJR use, the formula set forth above shall be pro-rated accordingly. 4. ORIGINAL AGREEMENT. The Original Agreement shall remain in full force and effect. 5. NO THIRD PARTY BENEFICIARIES. This Agreement is solely between Town and City to promote the interest of their respective residents. No other party, including, without limitation, BTJR, is a third party beneficiary of this Agreement. 6. CONTINUATION OF JOINT POWERS AGREEMENT. This Agreement is subject to the JPA between the Parties as it exists at the time of execution or as it may be amended from time to time. Should either Town or City terminate the JPA as set forth in Section 16 of said JPA, this Agreement shall become null and void. 7. MISCELLANEOUS - A. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses incurred. B. The laws of the State of California shall govern the interpretation, validity, and enforcement of this Agreement. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Marin. C. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. D. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Town and BTJR. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. TOWN OF TIBURON Dated: James Fraser Mayor CITY OF BELVEDERE Dated: John C. Telischak Mayor SIGNATURES CONTINUED ON NEXT PAGE 21 12 4 SIGNATURES CONTINUED FROM PRIOR PAGE APPROVED AS TO FORM: By Dated: Ann R. Danforth, Esq.. Town Attorney, Town of Tiburon By Dated: Robert Epstein City Attorney, City of Belvedere ATTEST: DIANE CRANE IACOPI TIBURON TOWN CLERK ATTEST: LESLIE CARPENTIERS BELVEDERE CITY CLERK 2`012 1 if_44" 4 of J. To: From: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Office of the Director of Public Works/Town Engineer Town Manager Town Council Meeting April 18, 2012 Agenda Item: Subject: Council Consideration of Award of Bid for the Proposed Facility for Belvedere Tiburon Joint Recreation (BTJR) Programs and Staff Offices at 600 Ned's Way - Continued from March 7, 2012 Reviewed By: BACKGROUND The proposed project to create a new home for Belvedere Tiburon Joint Recreation (BTJR) programs was described at length in the recent staff report presented on March 7, 2012, which is attached as Exhibit A. At that meeting the Town Council decided to delay consideration of the award of bid to allow for several things to be pursued by the Ned's Way Committee (Mayor Fraser and Vice Mayor O'Donnell): 1. Exploration of alternative sites for a community center 2. Discussion with the City of Belvedere regarding a possible increased contribution to the proj ect 3. Exploration with the Reed Union School District of possible ways the BTJR program might continue at the Reed campus. As noted at the March 7 meeting, the bid is only valid until April 20, hence the Council direction to bring the question of award back at the April 18 meeting. Because of the inconclusive nature of the investigation described below, staff, in conjunction with the Ned's Way Committee, has requested yet another extension of the bid, but of as of this writing has not learned whether this is acceptable to the bidder. Consequently, on Monday or Tuesday of next week, staff will submit a supplemental staff report that either (1) postpones consideration of the award of bid item to the May 2, 2012 meeting or, (2) further describes Council's options for the April 18, 2012 meeting. DISCUSSION Since the March 7, 2012 meeting, the Town Council Ned's Way Committee along with staff have been pursuing the items listed above. As of this writing the status of each is as follows: + ~ 3 iiV23 3! Alternative Community Center Sites The Committee and staff explored a variety of private sites but none appear to be viable at this time. Notably, a dialogue with the owners and tenants of the Chase Bank building at 1535 Tiburon Boulevard, an excellent location for a community center, proved unsuccessful when the tenants indicated they have no interest in relocating. Staff also explored the use of Teather Park as a possible site but found that, at least superficially, the site appears constrained from a change of its present use by the terms of its dedication to the Town. Upon learning of that apparent limitation, an analysis of the merits of that location was not undertaken. Additional Financial Support from Belvedere The Committee wrote a letter to the Belvedere City Council requesting their consideration of a one-time capital contribution of $300,000 for the project. The Belvedere City Council discussed the request at its April 9, 2012 meeting. While supportive of the project, they expressed concern over the lack of time to adequately consider the matter. The Council concluded its discussion by appointing a committee of Vice Mayor Sandra Donnell and Councilmember John Telischak to negotiate the matter with the Town. Discussions are calendared. Exploration with Reed Union School District The Committee and staff have been in contact with School authorities to revisit the question of keeping BTJR at the Reed School either within the existing buildings or possibly in a new portable building. Several meetings have occurred, including one between the Tiburon's Ned's Way Committee and two school board members and Superintendent Steve Herzog. A separate meeting occurred with Reed Principal Nora Ho. All of the Reed School representatives have been very cooperative and encouraging in these discussions, but they continue to express the concern that they can't predict future school populations and hence favor an approach that preserves their options should the need for more school space materialize. Discussions on this topic continue. CONCLUSION A supplemental staff report will be issue next week prior no later than Tuesday as follows: 1. If the Town has been successful in obtaining an extension of the bid, the report will notify the Town Council and the public that the item will be continued to May 2, 2012. 2. If the bid has not been extended and expires on April 20, the staff report will provide additional information for Council's consideration on April 18, 2012. EXHIBITS A. March 7, 2012 Staff Report on Award of Bid for Ned's Way Project Prepared by: Peggy Curran, Town Manager Nick Nguyen, Director of Public Works/Town Engineer .A . TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: Mayor and Members of the Town Council From: Office of the Director of Public Works/Town Engineer Town Manager Town Council Meeting March 7, 2012 Agenda Item: I rT-/ Subject: Request for Council Consideration of Award of Bid for the Proposed Facility for Belvedere Tiburon Joint Recreation (BTJR) Programs and Staff Offices at 600 Ned's Way, and Direction to Staff Reviewed By: BACKGROUND The Belvedere Tiburon Joint Recreation Committee was formed by the Town of Tiburon and City of Belvedere in 1975 through a Joint Powers Agreement (JPA), a collaboration for the benefit of the peninsula that by all accounts has been a productive one. The Committee oversees a staff which conducts programming at several locations throughout Belvedere and Tiburon in Town, City and School facilities, as well as on Angel Island. The staff and programming are referred to herein as Belvedere Tiburon Joint Recreation (BTJR). One of the services provided by BTJR is the after-school enrichment program, which has been housed for many years at the Reed Elementary School and from which nearly all of the program's children are drawn. In early 2010, due to increasing enrollment, School officials informed BTJR that the after-school program was not sustainable at the Reed Elementary School grounds. After receiving word of the pending displacement, BTJR, the Town of Tiburon and City of Belvedere searched for suitable replacement locations. The two-acre Town-owned Ned's Way site, located upslope from the Chandlers Gate senior housing project and across Ned's Way from the Hilarita Apartments, was identified as the most promising site within walking distance of the School. As the concept of relocating the after-school program site took shape, it grew to encompass a broader vision. The project was originally conceptualized as a temporary trailer or very small modular on the site, but it soon became evident these could not easily be located on the site due to its slope and soils and that substantial site work would be required to make that possible, as well as to add necessary parking and accessibility features. Fairly soon the vision grew to the current concept of a space for recreational programming for a wide array of user groups and purposes and the relocation of the BTJR staff offices to enable their management of the new space. Relocating BTJR, currently housed in Town Hall, also offered the side benefit of freeing up this space for other purposes. The Town Council gave an initial go-ahead to Town staff to develop the idea and appointed Councilmembers Fraser and O'Donnell to a Ned "s Way Committee. Former Councilmember Miles Berger graciously agreed to provide conceptual design services on a pro-bono basis. A meeting was held with neighbors to review concepts and get feedback on potential problems and issues, all of which were addressed in the ultimate design. On May 19, 2010, the Town Council gave direction to staff to move forward with the project and to employ streamlined development review procedures. On July 21, 2010, Council adopted an ordinance establishing the streamlining procedure and exempting it from certain Town regulations. Staff provided a detailed report to the Town Council on October 6, 2010, explaining the status of the project and the basis for its escalating cost due to the increased scope of the project and site challenges. The cost was estimated at that point in time to be $950,000, although the report noted this amount could rise and that the real price would not be known until the project was bid. Council directed staff to continue to pursue the project; it also approved an agreement with the City of Belvedere providing for yearly contribution of $30,000 with an annual CPI adjustment capped at 4%, to the Town to help defray the capital expense of the project. The agreement is attached as Exhibit A. On February 16, 2011, Council held a public hearing, reviewed the draft environmental negative declaration and project merits, and adopted a resolution adopting the mitigated negative declaration, approving the site plan and architectural drawings for the project, and adopting a Mitigation Monitoring Program. On March 9, 2011, Council authorized staff to proceed to fine tune and bid the project. The project was advertised beginning May 2, 2011, and bid opening was held on May 26, 2011. On bid opening day, only one bid was received with a bid of $2.22 million dollars ($1,450,000 for the modular building and $774,000 for the site work). Bids do not include contingency funding or other direct Town costs such as bringing utilities to the site, environmental work, design fees, construction management and so forth; the total project cost at that time would likely have reached $2.98 million. The Ned's Way Committee, staff and architect Berger determined that the poor response was at least due in part to a lack of specificity in the bid documents necessary to make them attractive to potential modular building manufacturers. On June 15, 2011, Council rejected the bid for the project and authorized staff to engage a modular building system consultant to revise construction specifications to better clari fy the building component needs and apply the lessons learned from the previous bid process. Council authorized staff to re-bid the project when ready. The project was re-bid on September 22, 2011. The project was posted and widely advertised. A pre-bid meeting with interested contractors was held on October 6, 2011. Ten contractors attended the meeting and had many questions for staff, signaling a genuine interest in the project. Over 30 bid packages were requested by general contractors and sub-contractors. I i.OVY111 (_.t)!.![1C-it Ne 'C'%tt1 March '01"' While staff and its modular building consultant revised as much material that was reasonably possible within a limited timeframe and without redesigning the entire project, the contractors' questions generated more revisions and three addendums were issued during the bid process, lengthening it considerably. Most of the questions sought clarifications on how the modular building was to be built and outfitted. Six bids were received on November 14, 2011, in contrast to the one that was received during the original bid advertisement. The bids ranged from $1.68 million to $2.20 million, comparing favorably to the lone bidder during the first round of bidding at $2.22 million. Our objective of attracting a greater amount of competitive bids was successfully met, but the lowest bidder's price-was still above the Town's construction estimate of $1.47 million. The apparent low bidder is Ghilotti Construction (GC) at $1.68 million, who proposes to provide a conventionally built structure rather than providing a modular one. GC is a qualified contractor with a valid Contractor's License, and is responsive to the contract specifications with reasonable references. The company has satisfactorily worked for the Town in the past and is a reputable contractor in the Bay Area. Unless the project is substantially redesigned and redrawn, there is no indication that different results would be obtained if this second round of bids were rejected and the project re-advertised a third time. USE AGREEMENT Tenancy by a third party in a Town-owned building requires a Use Agreement or lease for the space. This agreement was developed and is attached as Exhibit B. It sets forth the responsibilities of the parties, and is designed to protect the Town's prerogatives as the owner of the building. The Use Agreement was reviewed by the Belvedere City Manager and BTJR. Its principle elements are: ■ Lease automatically rolls over every year unless notice is given by the Town ■ Town retains the right to reclaim all or a portion of the building upon one year notice ■ Town may reclaim the building without notice in the event of an emergency ■ Town is responsible for major building systems ■ Town is responsible for landscape maintenance ■ Town retains the right to name the building, and approve all exterior signage ■ BTJR is responsible for operating expenses (utilities, janitorial, minor repair, etc.) ■ No rent is due for the first five years, but rent could be charged after that point upon one year's notice; a below-market starting rent is included in the agreement, but in reality rent would be negotiated at that time depending upon the financial circumstances of BTJR The Use Agreement contemplates that BTJR will likely have difficulty absorbing the costs of operating the building for the first two years. BTJR benefits from in-kind support at its present location in Town Hall where they do not pay utilities, janitorial, technology-related expenses such as internet connection and so forth (they do pay their own telephone bill), so these would become new expenses in their budget. The working assumption is that BTJR will be able to absorb these expenses over time as they program the new space, but that they will need assistance in the meantime. These expenses are projected to be approximately $60,000 per year. Belvedere has N1:-rC.'' r 1:... agreed to share this expense with the Town at the usual sharing rate of 25% Town / 75% City. Thus the Town may need to contribute approximately $45,000 per year for two years for operational support. This number could drop if BTJR is able to absorb some of this cost or if Belvedere is willing to pick up more than its customary 25% in recognition of the Town's extraordinary expense on the building itself, but that is unknown at this time. DISCUSSION This project has evolved over the past two years, most notably growing considerably in size. It started out as a classroom replacement, possibly in a mobile building, to a more substantial facility that includes BTJR offices and 3,650 square feet of program and support space (a total of 4,800 square feet) and accommodation for 22 cars. The cost has grown as well: the total cost, including previously spent funds on environmental, engineer, soils work, etc, the bid and additional anticipated costs of construction management, utility service and contingency is now $2,390,000. While the second round of bidding did result in a price reduction over the first bid, it also made it abundantly clear that this is a very expensive site to develop due to its soils, slope and lack of utilities. Now that the Town has been through the concept development and bidding stages of this project and knows the cost of construction, the high price tag gives rise to the question of whether it remains a wise use of limited resources. There is obviously some price point at which the project should no longer be pursued; has it been reached? In addition to the cost, some other changes have occurred in the time it has taken to develop and twice-bid this project. The School is under a new administration (new Superintendent and Reed Principal) which appears to be more willing than its predecessor to accommodate the BTJR programs despite overall crowding. Also, the Town has been repeatedly unsuccessful in its efforts to negotiate a direct pedestrian access to the site from the School over either of the two private properties that separate them. Finally, consideration must be given to the likelihood that, at this expense, the project will almost certainly be the only "community center" for years to come, something that was not necessarily true at a lower cost. While the site is excellent for its proximity to Reed School (although less so without a shortcut pedestrian pathway), it is a sub- optimal location for a community center, which would be better sited in the downtown or in a more visible and easily accessed location for a wide variety of users. A list of pros and cons follows. Reasons to Proceed with the Project 1. Expands recreational programming potential for the peninsula 2. Only site within walking distance of Reed School found to be viable for a recreation building (at least to date) 3. Creates permanent new home for BTJR staff 4. Frees up approximately 1,000 square feet in Town Hall for other purposes 5. Eliminates need for storage container behind Town Hall, which frees up three parking spaces 6. Community support exists for this site, but might not for other locations ..j. i?m"n, Council -Mccuing 7. $153,000 has already been spent on unrecoverable costs for environmental work, engineering, etc. 8. Momentum - this project is ready to go, whereas identification and development of any other site for this or a similar purpose will take time Reasons to Abandon the Project 1. Substantial expense - total cost of the building (including parking) at $2,390,000 is $496 per square foot for a simple structure with basic finishes 2. Site has proven to be particularly difficult and expensive to develop (site work is more than half of total project expense) 3. Other than proximity to Reed School, the location is sub-optimal for general community programming purposes (a downtown, or other more central site would be preferable) 4. Shortcut access via the "back route" has been denied by the owners whose property would need to be traversed, rendering the site effectively further from Reed School (proximity to the School was the driving force for consideration of this site in the first place) 5. Current School administration is more willing to work with BUR to find space solutions than in the past 6. If not built, the funds could go to another recreational building or community center in a preferable location if one can be identified or secured 7. At $2,390,000 cost, building effectively delays for many years, if not precludes altogether, consideration of a larger or more centrally located community center 8. Ned's Way site could be sold and proceeds contributed to similarly-purposed building at another site Of course, Council may have its own reasons pro or con not reflected on the list above. Staff believes the project, if built, will be a lasting asset for the peninsula and has faith that BTJR will put it to good use for the community. However, the Town must also consider whether the now very substantial cost constitutes an excessive investment in this location which is both difficult to develop and not well located if it is to be the main recreational programming space for the community for years to come. Staff recognizes that this may be a difficult decision for the Town Council. If the Council wishes to proceed, the steps to do so are set forth below under recommendations, and Staff will proceed apace to get it built. If Council determines the high cost or other changing factors have rendered this an imprudent choice, staff recommends consideration be given to putting $2,000,000 (or whatever sum the Town Council thinks appropriate) into a discretionary set-aside reserve for a future community center in a more central location. Staff also recommends, if this project does not proceed, that it redouble its efforts with the present School administration to explore whether there are any other greatly scaled down and temporary approaches that could be made to work to house the after-school program on or near the Reed School campus. This effort has failed in the past, but might be worthy of another attempt in light of some changed circumstances. To, i:E.zrc.h 7 . '.)I._'. FISCAL IMPACT To date, the Town has spent approximately $153,000 on environmental analyses, surveying, design, and bid administration costs. Factoring in these present costs, the Ghilotti bid, additional Town costs (e.g. permit fees, utility installation, construction management fees) and a 15 percent contingency, the total project cost comes to $2.39 million (total project cost sheet is attached as Exhibit Q. The Town allocated $1,550,000 in this year's fiscal budget for this project. At the total project cost of $2,390,000, less the prior fiscal year expenditure of $126,000, an additional $714,000 must-be appropriated to complete the project. It is anticipated that if the project is approved, it will span two fiscal years, the current one and FY 2012-2013. To proceed, it should be entirely funded in this fiscal year through a budget amendment and any unspent portion re-appropriated in next year's budget. Funding for the project would come from the Town's discretionary reserves. Upon BUR use of the building, Belvedere will commence payment of $30,000 annually, with a CPI escalator capped at 4%, to help defray the Town's capital investment. It may be necessary for the Town to subsidize BTJR's initial operating costs for the first two years; Tiburon's portion of this cost could be $45,000 per year for two years. NEXT STEPS If the project is approved by Council, the general timeline would be: • Contract documents could be executed in March. • A preconstruction meeting could be scheduled by late March or early April. • Construction drawing approval by in June. • Construction could start by mid summer. • The work could be completed by the end of the year or early in 2013. RECOMMENDATION Staff recommends that the Town Council consider whether it wishes to proceed with the project and direct staff accordingly. If so, Council is respectfully requested to: a. Move to approve the award of a construction contract for the 600 Ned's Way Facility Project to Ghilotti Construction Company, Inc. in the amount not-to- exceed $1,683,694, plus 15 percent for contingency; b. Move to amend and increase the current budget by $714,000 for the construction of this project from discretionary reserves; and ":1:"~,~:v.f~ C:::t)Ll[1C~i~ ~-1c•'t:it~~ c. Authorize the Town Manager to make minor changes as appropriate, finalize and execute the Use Agreement. If not, Council is respectfully requested to: a. Move to reject all construction bids received for the 600 Ned's Way Facility Project; b. Consider if it wishes to place $2,000,000 or anther sum, in a discretionary set- aside reserve for an eventual community center in a more central location; and c. Direct staff to explore, once again, whether there is any opportunity to work with the School District to develop a more permanent solution for the after-school program's space needs. EXHIBITS A. Agreement between Tiburon and Belvedere for 600 Ned's Way B. Use Agreement for 600 Ned's Way C. Project Cost Sheet Prepared by: Peggy Curran, Town Manager Nick Nguyen, Director of Public Works/Town Engineer FILE COPY AGREEMENT Between Town of Tiburon and City of Belvedere Regarding Ned's Way Facility, Tiburon Whereas, this Agreement is entered into by the Town of Tiburon ("Town") and the City of Belvedere ("City"), together the "Parties", on this 11th day of October, 2010, to set forth the terms And conditions for the use of offices, classrooms and related improvements anticipated to be constructed on Town property located at 600 Ned's Way in Tiburon (Facility). Whereas, Town and City created the Belvedere-Tiburon Joint Recreation Committee ("BTJR") pursuant to a Joint Powers Agreement ("JPA") executed in June of 1975 and most recently amended on October 8, 2001. The BTJR provides programs and services on the Tiburon Peninsula meeting the needs of the Parties; Whereas, BTJR has rented space at local Reed School District school sites, most specifically for after-school programs; Whereas, recently, space has become limited at some of the local school sites and BTJR is facing difficulty maintaining consistent and suitable space within which to operate its programs; Whereas, BTJR requires additional programmable space if it is to satisfy and expand local programming to meet the growing needs of the Tiburon Peninsula; Whereas, Town is willing to use its monetary, land and staff resources to construct a facility of approximately 4,800 square feet of building, parking for approximately 26 vehicles and an outdoor play area on Town-owned land ("Facility") for BTJR use so long as it receives the annual contribution from City, as set forth in this Agreement, and so long as Town believes this to be an appropriate use of Town resources; Whereas, the Parties enter into this Agreement with the hope and expectation that Facility will provide a long-term means of addressing the office and programmatic space needs of BTJR. Now, therefore, the Parties agree as follows: 1. PURPOSE. Nothing in this Agreement shall obligate Town to construct the Facility. However, if Town constructs Facility, Town agrees to allow Facility to be used by BTJR for office and classroom purposes subject to the terms and conditions set forth in this Agreement. 2. TERMS. This Agreement establishes a year-to-year contract between Town and City for the use of Facility by BTJR. While it is the intent of the Town to allow this use of Facility to continue indefinitely, the Town retains the right to terminate this Agreement upon one year written notice to City and BTJR. EXI-IIBIT NO. NE€ 'S WAY FACILITY GREEE€ IENIT, CTJBErz 20-10 PAGE 1 QE 3 3. CONTRIBUTION FROM CITY. On or before the first day that BTJR occupies the Facility ("Occupancy Date"), City shall pay an annual contribution to the Town of $30,000 ("Annual Contribution") for use of Facility by BTJR during the following year. The Annual Contribution is in consideration for BTJR's use of the classrooms and other non-office elements of the Facility. On each anniversary of the Occupancy Date during the term of this Agreement, the Annual Contribution shall be increased each year by the Consumer Price Index for San Francisco All Urban Wage Earners for the prior year provided, however, Annual Contribution shall not increase by more that 4% annually. If City.fails to pay the Annual Contribution within sixty days of the said date, Town may cancel this Agreement upon three days written notice. 4. RESPONSIBILITIES OF THE PARTIES. Town shall be responsible for major building repair and maintenance, such as roof repair and replacement, structural repair, HVAC system, etc., however, nothing in this Agreement shall require the Town to repair Facility if the Town decides, in its sole discretion, that such expenditure is not an appropriate use of the Town's resources. If failure of Town to repair Facility renders Facility unhabitable, no further rental payments shall be due from City and Town shall rebate, on a pro-rata basis, rents paid for balance of year, and this Agreement shall terminate. 5. BTJR USAGE. Town shall enter into a separate agreement allowing BTJR to use Facility in accordance with direction from the BTJR Committee and which allows BTJR to retain proceeds from said activities ("Use Agreement"). The Use Agreement shall provide that (a) BTJR shall be responsible for the Facility's care and maintenance including minor Facility repairs and replacement, janitorial services, grounds maintenance and furnishings; (b) the Use Agreement shall terminate upon termination of this Agreement and (c) upon termination of the Use Agreement, BTJR shall vacate the Facility. Unless the basis for termination of the Use Agreement is due to City's failure to pay the Annual Contribution, an Act of God or other unforeseeable action, or damage to the Facility rendering it uninhabitable, Town shall provide BTJR with one year advance notice of such termination. Town shall provide City with the opportunity to review and comment on the Use Agreement before it is executed. 6. NO THIRD PARTY BENEFICIARY. This Agreement is solely between Town and City to promote the interest of their respective residents. No other party, including, without limitation, BTJR, is a third party beneficiary of this Agreement. 7. RENTAL INCOME FROM BTJR. In the event that the Parties determine that BTJR has become capable of, and should, pay rent to the Parties for its use of the non-office portion of the Facility, said rent shall be allocated between the Parties as described in Section 8 of the JPA. 8. CONTINUATION OF JOINT POWERS AGREEMENT. This Agreement is subject to the JPA between the Parties as it exists at the time of execution or as it may be amended from time to time. Should either Town or City terminate the JPA as set forth in Section 16 of said JPA, this Agreement shall become null and void. NEWS WAY FACILITY AGREEMENT, OCTOBER 7-010 PAGE 2 of 3 7 TO OF TIBURON r ichard Collins Mayor CITY OF BELVEDERE 47- Telischak I~ Dated: l~ l Dated: 1( 1 c? (0 APPROVED AS TO FORM: Ann R. Danforth, Esq. ,Igwn of Tiburon Town Attm ey, By Dated: ~//I' //CJ Dated: i City Attorney, City o ATTEST: DIANE CRANE IACOPI TIBURON TOWN CLERK ATTEST: GEORGY ~ODERICKS BELVEP-ErRE CITY CLERK NED".& WAY FACILITY AGREEMENT, OCTOBER 2010 PAGE 3 OF 3 DRAFT TOWN OF TIBURON LEASE OF 600 NEWS WAY TO THE BELVEDERE TIBURON JOINT RECREATION COMMITTEE This Agreement is entered into this first day of , 2012, by and between the TOWN OF TIBURON, a municipal corporation ("Town") and BELVEDERE-TI13URON JOINT RECREATION COMMITTEE ("BTJR) RRCTTATS - 1. The Town and the City of Belvedere ("City") created the BUR pursuant to a Joint Powers Agreement ("JPA") executed in June of 1975 and most recently amended on October 8, 2001. The BUR provides programs and services on the Tiburon Peninsula meeting the needs of the Parties. 2. Pursuant to the JPA, the Town and City provide financial assistance for those of BTJR's expenses that are not covered by program income. 3. BTJR has offices at the Town's property at 1505 Tiburon Boulevard ("Town Hall") and locates its programs at various sites on the Tiburon peninsula. 4. BUR requires additional office and programmable space if it is to satisfy and expand local programming to meet the growing needs of the Tiburon Peninsula. 5. Town is the owner of certain real property situated in the Town of Tiburon and located at 600 Ned's Way in Tiburon, California on which the Town is planning to construct a building of approximately 4800 square feet, adjacent parking lot and associated improvements ("Facility"). 6. On October 11, 2010, the Town and City entered into an agreement whereby the City agreed to make an annual monetary contribution to the Town if the Town created new space on Town-owned land and the Town agreed to allow BUR to use any such facility for so long as the Town receives the annual monetary contribution from City and for so long as Town believes this to be an appropriate use of Town resources ("Contribution Agreement"). 7. Town, BTJR and City acknowledge that the relocation contemplated by this Agreement will increase BTJR's operational expenses and that BUR may require additional financial assistance from Town and City for up to two years after BUR takes possession of the Facility. 8. The Town and BUR (collectively, "Parties") have entered into this Agreement to set forth the terms and conditions for the use of the Facility. 1 EXHIBIT NO. 5 ` AGREEMENT: 1. Purpose. Nothing in this Agreement shall obligate Town to construct the Facility. However, if Town constructs the Facility, Town will allow BUR to use the Facility subject to the terms and conditions set forth in this Agreement. 2. Term of Lease. The Initial Term of this Agreement shall be one (1) year from the date that the Town makes the Facility available for occupancy by BUR ("Occupancy Date"). Each one year anniversary of the Occupancy Date ("Renewal Date"), the lease shall automatically renew for an additional one-year term. Notwithstanding the foregoing, (a) on any Renewal Date, the Town may give the BUR written notice of intent not to renew on the next Renewal Date; and (b) the Town shall have the right to terminate this Agreement as set forth in Section 6 hereof. 3. Rent. A. BUR shall pay no rent for the use of the Facility during the first five years after the Occupancy Date. Thereafter, BUR will pay rent as set forth in this section beginning one year after receiving written notice from the Town Manager. B. Beginning on the first day of the first month following the one-year notice period set forth in Subsection 3.A, BUR shall pay rent of $2500 per month, i.e., approximately $.52 per gross square foot (Rent). C. The Town shall have the right to modify the Rent or other terms of this Agreement by giving BUR one year written notice of said intended modification. In making future Rent adjustments, the Town may consider, without limitation, the market rate for similar square footage, BTJR's revenues and the Town's capital and maintenance costs associated with the Facility. 4. Rights and Responsibilities of Parties: A. Town will provide BUR with 30 days prior notice of the Occupancy Date. B. The Town will have the sole right to name the Facility and each portion thereof. Without prior approval of the Town Manager, BUR will not erect any exterior or interior signage, other than informational signs regarding the Facility's components (including, without limitation, bathrooms, the kitchen and emergency exits), BUR programs and other authorized activities and uses in the Facility. C. Beginning with the Occupancy Date and continuing for the term of this Agreement, Town shall be responsible only for maintenance of the Facility's exterior landscaping and for major building repair and maintenance, such as roof repair and replacement and structural and HVAC system repairs. 2 D. Nothing in this Agreement shall require the Town to repair Facility if the Town decides, in its sole discretion, that such expenditure is not an appropriate use of the Town's resources, in which event, the Town may terminate this Agreement as provided in Section 6 hereof. E. BUR shall vacate Town Hall within 15 days of the Occupancy Date. BUR shall leave at Town Hall any and all personal property items previously provided by the Town except as otherwise expressly authorized by the Town Manager. The items so authorized are set forth in Exhibit A, which is attached hereto and incorporated herein by reference. F. Beginning on the Occupancy Date, BUR will cease receiving technology support services from the Town and will be responsible for obtaining such services. G. Except as provided in Section 6, BUR will pay for all utilities and services required for the Facility, including, without limitation, minor Facility repairs and replacement, solid waste disposal, janitorial services, utilities and all other operational expenses associated with the building. BUR will maintain the Facility in good repair. All damage or injury done to the Facility by BUR or by any person who may be in or at the Facility with the BTJR's consent or invitation or by the BTJR's failure to properly secure the Facility shall be paid for by BTJR. If at any time during the term of this Agreement, BUR fails to maintain or repair the Facility as required by this Section, the Town may, but shall not be required, to perform the maintenance or make the repairs or replacements for the account of BTJR; any sums expended by Town in so doing, together with interest at ten percent (10%) per annum, shall be deemed immediately due from BUR on demand of the Town. H. Town shall have the option of using the Facility for Town programs at no charge for at least of 12 days per year, provided that such use does not conflict with previously scheduled BUR programs. Town may allot, at its discretion, any portion of said days to other public agencies or not-for-profit organizations. 1. Town may, in its sole discretion, undertake an independent audit and/or evaluation of the BTJR's records and accounts of income, expenditures and program activities at its own expense. BUR shall furnish all items necessary in the Town's discretion to complete said audit and/or evaluation. 5. Use of Facility; Compliance with Laws. BUR shall use the Facility only for offices, BUR programs and other events compatible with said uses. BUR may allow other third parties to occupy the space for short term uses only, not to exceed 48 hours in duration, provided that such use does not interfere with BTJR's normal programming. BUR shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. 6. Termination. In addition to the right of non-renewal set forth in Section 2 of this 3 Agreement, Town may terminate this Agreement, in whole or in part, as set forth in this Section. A. In the event that the Town Manager, in her sole discretion, determines that due to an emergency condition, the public interest requires the Town to take immediate possession, the Town may require BTJR to vacate all or a portion of the Facility. The Town will give BTJR such advance notice as is reasonable and practical under the particular circumstances. B. The Town Manager may determine, after consultation with the Town Council and BTJR, that a portion of the Facility is under-utilized, in which case the Town may require BTJR to vacate that portion upon three months prior written notice. C. In the event that the Town takes possession of a portion of the Facility under this Section 6, the restrooms and kitchen shall be deemed Common Areas. The Parties will share responsibilities for maintenance of Common Areas in proportion to each Party's proportional share of the non-common area in the Facility. D. Rent: In the event that the Town takes possession of the Facility under this Section, Rent shall be refunded or reduced as set forth herein. (i) In the event that the Town takes possession of the entire Facility under Subsection 6.A, Town will refund any prepaid Rent on a pro rata basis. If the Town takes possession of only a portion of the Facility under Subsection 6.A, any refund will be proportionate to the amount of the portion of the Facility as a whole exclusive of the Common Areas. (ii) In the event that the Town takes possession of a portion of the Facility under Subsection 6.B, the Rent shall be reduced in proportion to the size of the area so occupied by the Town relative to the Facility as a whole exclusive of the Common Areas. 7. Alterations; Improvements. BTJR shall not, without the Town's prior written consent, make any alterations, improvements or additions in or about the Facility except for nonstructural work that does not exceed $2,000.00 in cost. As a condition to giving any such consent, Town may require the BTJR to remove any such alterations, improvements, or additions at the expiration of the term and to restore the premises to their prior condition by giving BTJR thirty (30) days written notice prior to the expiration of this Agreement. Unless the Town requires their removal as set forth above, all alterations, improvements or additions which are made on the Facility by the BTJR shall become the property of the Town and remain upon and be surrendered with the Facility at the expiration of the term. Any damage to the Facility caused by said removal shall be repaired at BTJR's sole cost. BTJR shall give Town advance notice of the commencement of any planned alteration, so that Town, at its option, may post a Notice of Non- Responsibility to prevent potential liens against Town's Interest in the Facility. Town may also 4 require BTJR to provide Town with lien releases from any contractor performing work on the Facility. 8. Relationship Between the Parties. BTJR is, and at all times shall remain, an independent contractor solely responsible for all acts of its employees, agents, or contractors, including any negligent acts or omissions. BUR is not Town's agent, and shall have no authority to act on behalf of the Town, or to bind the Town to any obligation whatsoever, unless the Town provides prior written authorization to BUR. 9. Condition of Property; Release and Indemnification; Insurance. A. BUR accepts the Facility on an "as-is" basis. BUR acknowledges that Town has made no representations or warranties regarding the condition of the Facility or its suitability for BTJR's intended use. B. BTJR will indemnify, defend and hold Town harmless against any and all claims, damages and expenses (including, without limitation, attorneys fees), liabilities and judgments relating to injury to persons, loss of life or damage to property arising from the alleged active or passive negligence or willful misconduct of BTJR, its agents, employees and contractors in connection with BTJR's use of the Facility. BTJR's obligations under this section shall survive the termination of this Agreement with respect to claims arising or accruing before said termination. C. BUR shall, throughout the duration of this Agreement, maintain insurance to cover Town (including its agents, representatives, contractors, and employees) in connection BTJR's use of the Facility under this Agreement. Section 9.D of this Agreement identifies the minimum insurance levels with which BTJR shall comply; however, the minimum insurance levels shall not relieve BUR of any other performance responsibilities under this Agreement (including the indemnity requirements) Concurrently with the execution of this Agreement by the BUR, and prior to the commencement of any services, the BUR shall furnish written proof of insurance (certificates and endorsements), in a form acceptable to the Town Attorney. BUR shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance policy required by this Agreement. D. BUR shall maintain the following levels of insurance: i. Commercial General Liability (with coverage at least as broad as ISO form CG 00 01 01 96) coverage in an amount not less than $2,000,000 general aggregate and $1,000,000 per occurrence for general liability, bodily injury, personal injury, and property damage. ii. Automobile Liability (with coverage at least as broad as ISO form 5 CA 00 01 07 97, for "any auto") coverage in an amount not less than $1,000,000 per accident for bodily injury and property damage. iii. Workers' Compensation coverage as required by the State of California. E. The insurance policies shall be endorsed as follows: i. For the commercial general liability insurance, the Town (including its elected officials, employees, and agents) shall be named as insured, and the policy shall be endorsed with a form at least as broad as ISO form CG 20 10 11 85. ii. BTJR's insurance is primary to any other insurance available to the Town with respect to any claim arising out of this Agreement. Any insurance maintained by the Town shall be excess of the BTJR's insurance and shall not contribute with it. iii. BTJR's insurance will not be canceled, limited, or allowed to expire without renewal until after 30 days written notice has been given to the Town. F. The Town Manager shall have the authority to accept levels and forms of insurance that differ from this Section if, in consultation with the Town Attorney and the Town's Risk Manager, she determines that BTJR's proffered coverage provides the Town with protection equal to or better than the coverage specified in this Section 9 10. Damage or Destruction. If, by no fault of BUR, the Facility is totally or partially damaged or destroyed by fire, earthquake, accident or other casualty, Town shall have the right to restore the Facility by repair or rebuilding. If Town elects to repair or rebuild, and is able to complete such restoration within ninety (90) days from the date of damage, subject to the terms of this paragraph, this Lease shall remain in full force and effect. If Town is unable to restore the Facility within this time, or if Town elects not to restore, then either Town or BUR may terminate this Lease by giving the other written notice. Any Rent otherwise owing shall be abated as of the date of damage. The abated amount shall be the current Rent, if any, prorated on a thirty (30) day basis. If this Lease is not terminated, and the damage is not repaired, the Rent shall be reduced based on the extent to which the damage interferes with BTJR's reasonable use of Facility. If damage occurs as a result of an act of BUR or BTJR's guest, only Town shall have the right of termination, and there will be no reduction in Rent. 11. Assignment and Subletting. BUR may not assign or sublet all or any portion of the Facility or its interest in this Lease without Town's prior written consent, which may be withheld by Town in its sole discretion. 12. Hazardous Materials. 6 A. Except as identified by Town in writing to BUR as known environmental conditions prior to the execution of this Lease, Town makes no representation or warranty regarding the condition of the Facility or the site thereof. B. BUR covenants and agrees that it shall not, and that it shall not permit any licensee to, treat, use, store, dispose, release, handle or otherwise manage Hazardous Materials on or around the Facility except in connection with any construction, operation, maintenance or repair of the Facility or in the ordinary course of its business, and that such conduct shall be done in compliance with all applicable federal, state and local laws. BTJR's violation of the foregoing prohibition shall constitute a material breach hereunder and BUR shall indemnify, hold harmless and defend the Town for such violation as provided below. C. BUR shall, within five (5) days of such occurrence or immediately in cases of imminent threat of injury to life or property, notify Town of any significant release of any Hazardous Materials, and/or any notices, demands, claims or orders received by BUR from any governmental agency pertaining to Hazardous Materials which may affect the Property. BTJR's breach of the above shall be deemed a material default under the terms of this Lease giving rise to Town's right, in its sole discretion, to terminate this Lease. D. BUR hereby agrees to hold harmless, defend and indemnify Town and its employees, members and officials from and against all liability, loss, damage, costs, penalties, fines and/or expenses (including attorney's fees and court costs) arising out of or in any way connected with (a) BTJR's breach or violation of any covenant, prohibition or warranty in this Lease concerning Hazardous Materials, or (b) the activities, acts or omissions of BUR, its employees, contractors or agents on or affecting the Facility from and after the Possession Date, including but not limited to the release of any Hazardous Materials or other kinds of contamination or pollutants of any kind into the air, soil, groundwater or surface water on, in, under or from the Facility whether such condition, liability, loss, damage, cost, penalty, fine and/or expense shall accrue or be discovered before or after the termination of this Lease. This indemnification supplements and in no way limits the scope of the indemnification set forth in Section 9.B. E. BTJR waives, releases, acquits and forever discharges Town and its employees, members and officials or any other person acting on behalf of Town, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation (collectively "Claims") whatsoever including, but not limited to, all Claims at common law, whether direct or indirect, known or unknown, foreseen or unforeseen, 7 which BTJR has as of the Possession Date on account of or in any way growing out of or in connection with any Hazardous Materials or other conditions on, in, under, from, or affecting the Facility, or any law or regulation applicable thereto. BTJR is hereby subrogated to any and all rights possessed by Town against third parties with respect to said Claims. F. The agreements and obligations of BTJR under this Section 9 with regard to indemnification of Town shall survive the scheduled termination or sooner expiration of the Term for any reason, for five (5) years and all claims relating thereto must be delivered in writing to BTJR within such period. 13. Assignment and Dele ation. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of BTJR's duties be delegated, without the written consent of the Town. Any attempt to assign or delegate this Agreement without the written consent of the Town shall be void and of no force or effect. The Town's consent to one assignment shall not be deemed to be consent to any subsequent assignment. 14. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. 15. Notices. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of. (a) actual receipt by a party's Authorized Representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party. TO: Town Attn: Town Manager Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94707 BTJR Attn: Director, Belvedere-Tiburon Joint Recreation Committee 16. Headings. The heading titles for each section of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. 8 17. Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it-would result in a frustration of the parties' intent under this Agreement. 18. Governing Law, Jurisdiction and Venue. The laws of the State of California shall govern the interpretation, validity, and enforcement of this Agreement. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Marin. 19. Attorney's Fees. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses incurred. 20. Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. 21. Conflicts. If any conflicts arise between the terms and conditions of this Agreement and the terms and conditions of the attached exhibits or any documents expressly incorporated, the terms and conditions of this Agreement shall control. 22. Entire Agreement. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the work described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. 23. Binding on Successors. This Agreement shall be binding on the heirs, legatees, devisees, administrators, executors, successors and assigns of both parties. 24. No Third Party Beneficiaries. This Agreement is by and between only the Town and BUR and creates no rights in third parties. 25. Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Town and BTJR. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the Town and BUR do hereby agree to the full performance of the terms set forth herein. 4 APPROVED AS TO FORM: By Town Attorney APPROVED AS TO FORM: By Attorney for BTJR TOWN OF TIBURON By Town Manager BELVEDERE-TIBURON JOINT RECREATION COMMITTEE By Chair, BTJR Committee o, TOTAL COST ESTIMATE Belvedere Tiburon Joint Recreation 600 Ned's Way 12-Jan-12 Preliminary Design & Engineering Site Survey $ 8,250 Total $ 8,250 Initial Study (CEQA) Air Quality/Greenhouse Gas $ 2,530 Biological Resources $ 4,215 Geology and Soils $ 2,000 & Water Quality: Hydrology $ 3,740 _ Noise $ 3,570 Transportation & traffic 3,500 Total $ 19,555 Engineering & Architectural Fees Photo Simulation/Rendering $ 1,200 Architectural / Building Specs / Building Estimating $ 10,000 Geotechnical/Soils Report $ 11,700 Modular Bldg consultant (Alan Pierce) $ 4,700 CSW ST2 Phase I: prelim $ 11,700 Phase II: design (revised) $ 87,529 Phase III: CM $ 53,771 Extra Work - Add'I CM services $ 95,000 (includes Architectural Supp.) $ 248,000 $ 275,600 Building Permit Fees/Utilities Building fees - (3% of project value) $ 50,400 These include any School District fees (exempt; confirmed by John Frick), MMWD fees, Sanitary District, Fire Protection District Review fees; PG&E, new service connections $ 100,000 Estimated Total $ 150,400 Preliminary Construction costs BUILDING Modular Unit Costs (Frame up) 4,800 (inc. Trimmings and Found.) SI TEWORK Total site work CONTINGENCY PROJECT TOTAL $ 800,000 $ 883,694 15% $ 252,554 $ 2,390,053 EX.'HIBIT NO. _ TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed by: BACKGROUND Mayor & Members of the Town Council Community Development Department Town Council Meeting April 18, 2012 Agenda Item: Amend Title IV, Chapter 13 (Building Regulations) of the Tiburon Municipal Code to Add Regulations Regarding Recycling of Construction and Demolition Waste; File MCA 2012-01 This ordinance would strengthen existing recycling requirements for construction and demolition waste generated from building permit activity in Tiburon. The ordinance would replace an existing Town Council policy adopted in 2002, and would be based on a "model" ordinance prepared by the Marin County Hazardous and Solid Waste Management Joint Powers Authority that is being adopted by most (if not all) Marin County municipalities as well as the County of Marin. ANALYSIS Diversion of construction and demolition waste from landfills continues to be a valuable tool in promoting sustainability and reducing the growing burden on landfills throughout the state. In Marin County, the agency that oversees waste diversion is the Marin County Hazardous and Solid Waste Management Joint Powers Authority (JPA). The JPA has spearheaded this effort and has provided the Town with grant funding to recover costs of processing and adopting the ordinance. The Town of Tiburon was an early advocate of construction debris diversion requirements, adopting a 50% diversion policy and program over 10 years ago. Since that time, the diversion goals set by the JPA have increased to 70% for 2012, with gradual increases over time aimed at achieving nearly zero waste by the year 2025. Tiburon's Climate Action Plan, adopted in 2011, calls for adoption of a construction and demolition (C & D) waste ordinance as part of its implementation. The model ordinance prepared by the JPA is fairly simple and employs easy-to-use single page forms to estimate waste generation in advance of a project's building permit issuance, and then document delivery of the diverted waste to pre-approved recycling facilities. Key provisions of the draft ordinance include: Tovvn (.£)(.il1cil Mc; L'i:(no, Peril 1.3, 2012 ➢ Establishment of diversion requirements for recycling of construction and demolition waste, beginning at 70% for applicable projects for 2012 and escalating to 94% by 2025. The Town's current policy requires 50% diversion. Section 13-19 of the ordinance contains a list of permits that are exempt from the diversion requirements, including minor projects up to and including any alteration or addition affecting less than 500 square feet of floor area. ➢ Requirement for the filing of a 2-page "diversion report" for applicable projects, with the first page to be submitted at the time of application and the second page submitted prior to final inspection sign-off on the work. (See Exhibits 2 and 3). The first page estimates how much waste is anticipated to be generated by the project and states the facility to which the diverted waste is expected to be hauled. The second page provides the necessary documentation to show the waste was actually disposed of in the required manner (i.e., at a certified recycling facility). The Town will provide a current list of recycling facilities, as certified by the JPA. ➢ Payment of a penalty fee in the event the diversions requirements are not met. The fee would be 3% of the project valuation, not to exceed $10,000 regardless of valuation. Materials provided by the JPA indicate that the State of California takes its waste diversion goals seriously and may fine municipalities and counties that fail to meet the goal up to $10,000/day. ENVIRONMENTAL STATUS This project is categorically exempt from the requirements of CEQA per Section 15308 of the CEQA Guidelines. STAFF RECOMMENDATION Following a public hearing, staff recommends that the Town Council: 1. Hold a public hearing and consider any testimony. 2. Move to read by title only and introduce the ordinance (Exhibit 1), waiving any additional readings. The procedure would be for a motion and second to read by title only, pass the motion, have the Mayor read the title only, have a motion and second to conduct first reading and waive any future readings, and then hold a roll call vote on that motion. The ordinance would return for final adoption as a consent calendar item at the next regular meeting of the Town Council. EXHIBITS 1. Draft Ordinance 2. Diversion Report Form Part 1 3. Diversion Report Form Part 2 4. Current Policy (Resolution 59-2002) Prepared by: Scott Anderson, Director of Community Development DRAFT 1 ORDINANCE NO. 2 3 AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING 4 ARTICLE VI TO TITLE IV, CHAPTER 13 OF THE TIBURON MUNICIPAL 5 CODE BY ESTABLISHING RECYCLING AND DIVERSION 6 REQUIREMENTS FOR CONSTRUCTION AND DEMOLITION WASTE 7 The Town Council of the Town of Tiburon does ordain as follows: Section 1. Findings 1. The Town Council adopted a Construction and Demolition (C&D) recycling policy on October 16, 2002 by adoption of Resolution No. 59-2002. 2. With the adoption of said policy, the Town met the then-existing goal of the Marin County Hazardous and Solid Waste Management Joint Powers Authority (JPA) for diversion of materials from landfill and transformation facilities at a 50% diversion rate. 3. The JPA has since increased the goal for diversion of materials from landfill and transformation facilities to 80% by the end of 2012. 4. The JPA estimates that inert and mixed construction and demolition waste constitutes approximately 16% of the materials land-filled in Marin County and a similarly large portion of the waste stream in Tiburon, and these materials have significant potential for reduction and recycling. 5. Construction and demolition waste reduction and recycling have been proven to reduce the amount of such waste in landfills, to increase site and worker safety, and to be cost effective. 6. The Town Council finds that, except in unusual circumstances, it is feasible to divert on average 100% asphalt and concrete, and at least 70% of all remaining C&D debris from most construction, demolition, and renovation projects. 7. The Town Council desires to update and codify its existing policy into the Tiburon Municipal Code in order to match the goal set forth by the JPA and increase the diversion of materials from landfill and transformation facilities to achieve an 80% diversion goal by 2012 and aim for 94% diversion by 2025, with an ultimate goal approximating Zero Waste. 8. The Town's recently-adopted Climate Action Plan calls for adoption of a C& D Waste ordinance by the Town of Tiburon. 9. The Town Council finds that in order to ensure compliance with diversion standards set forth herein, recycling facilities will be evaluated annually through an extensive certification process conducted by the JPA. Tiburon Town Council Ordinance No. XXX N.S. Effective -4-42012 1 DRAFT 2 10. The Town Council finds that adoption of this ordinance is categorically exempt from the 3 requirements of the California Environmental Quality Act (CEQA) pursuant to Section 4 15308 of the CEQA Guidelines (14 Cal. Code § 15308) because it is an action taken by a 5 regulatory agency for the protection of the environment and no exceptions to this 6 categorical exemption apply. 7 8 Section 2. Amendment of Municipal Code. 9 - - 10 Article VI is hereby added to Title IV, Chapter 13 (Building Regulations) of the Tiburon 11 Municipal Code to read as follows: 12 13 14 Article VI. Recycling and Diversion of Construction and Demolition (C&D) Waste. 15 16 Sections: 17 18 13-17 Definitions 19 13-18 C&D diversion report required 20 13-19 C&D diversion report exempted 21 13-20 Certified recycling facilities 22 13-21 Diversion requirements 23 13-22 Use of avoided disposal regulatory fees 24 13-23 Violation and penalties 25 26 13-17 Definitions. For the purposes of this Article, the following words and phrases 27 shall have the following definitions: 28 29 "Alternative daily cover (ADC)" means disposal facility cover material, other than 30 organic waste and at least six (6) inches of earthen material, placed on the surface of the active 31 face of the refuse fill area at the end of each operating day to control vectors, fires, odor, blowing 32 litter and scavenging, as defined in Section 20164 of the California Code of Regulations. 33 "Applicant" means any individual, firm, limited liability company, association, 34 partnership, political subdivision, government agency, municipality, industry, public or private 35 corporation, or any other entity whatsoever who applies to the town for the applicable permits to 36 undertake any construction, demolition or renovation project within the town. 37 "Avoided disposal regulatory fee" means three percent (3%) of the valuation of the 38 project, not to exceed ten thousand dollars ($10,000). 39 "Certified recycling facility" means a recycling, composting, materials recovery or re-use 40 facility determined to process incoming construction and demolition materials to divert from 41 landfill or transformation for which the JPA has issued a certification. 42 "C&D diversion report" means a report submitted by an applicant, on a form approved 43 by the building official, which contains an estimate of the amount of C&D waste generated by 44 the project, documentation of the diversion of C&D waste, and such additional information 45 deemed necessary by the building official to document accomplishment of the requirements of 46 this chapter. Tiburon Town Council Ordinance No. XXX N.S. Effective -4-42012 2 DRAFT 1 "Construction and demolition waste" or "(C&D waste)" means used or discarded 2 materials removed from premises during construction or renovation of a structure resulting from 3 construction, remodeling, repair, deconstruction or demolition operations on any pavement, 4 house, commercial building or other structure. 5 "Building official" means the building official of the Town of Tiburon, including his or 6 her designee. 7 "Deconstruction project" means a process to carefully dismantle or remove useable 8 materials from structures, as an alternative to demolition. 9 "Diversion" or "diverted" means a reduction of the amount of waste being disposed in a 10 landfill or transformation facility by any of the following methods: 11 (1) Use of new construction methods, as described in regulations promulgated by 12 building official, that reduce the amount of waste generated. 13 (2) On-site re-use of the waste. 14 (3) Delivery of the waste from the site to a certified recycling facility. 15 (4) Other methods as approved in regulations promulgated by the building official. 16 "Joint Powers Authority" or "JPA" means the Marin County Hazardous and Solid Waste 17 Management Joint Powers Authority. 18 "Project" means a construction, demolition, alteration or renovation activity for which a 19 building permit is required by chapter 13 of this code, with the exception of building permit 20 work exempted under section 13-19 of this article. 21 "Recycling" means the process of collecting, sorting, cleansing, treating and 22 reconstituting materials such as newsprint, mixed paper, glass containers, aluminum beverage 23 containers, small scrap and cast aluminum, steel including "tin" cans, empty aerosol cans, 24 bimetal containers, plastic bags, plastic food containers, #147 plastics regardless of form or 25 mold, aluminum foil and pans that would otherwise become solid waste and returning them for 26 use or reuse in the form of raw materials for new, used or reconstituted products which meet the 27 quality standard necessary to be used in the market place. 28 "Reuse" means using an object or material again, either for its original purpose or for a 29 similar purpose, without significantly altering the physical form of the object or material. 30 "Transformation" means incineration, pyrolysis, distillation, or biological conversion 31 other than composting. "Transformation" does not include composting, gasification, or biomass 32 conversion. Tiburon Town Council Ordinance No. XXX N.S. Effective -4-42012 3 DRAFT 1 13-18 C&D diversion report required. 2 (a) On or after {insert effective date of ordinance}, each applicant who applies for a 3 building permit for a project shall submit a completed C&D diversion report (Part 1), acceptable 4 to the building official, prior to issuance of the permit. 5 (b) On or after {insert effective date of ordinance}, no building permit for a project shall 6 be issued by the building official unless an acceptable, completed C&D diversion report (Part 1) 7 form has been submitted for the project. 8 (c) Prior to obtaining any final inspection/permit sign-off and/or certificate of occupancy 9 from the building official, an applicant who has obtained a building permit for a project shall 10 remit a completed C&D diversion report (Part 2) acceptable to the building official. 11 (d) An avoided disposal regulatory fee shall be imposed if a certified recycling facility is 12 not used, if required recycling/reuse receipts are not submitted, or if the building official 13 determines that the applicant has not satisfied the diversion requirements set forth in section 13- 14 21 of this article. The avoided disposal regulatory fee shall be calculated as three percent (3%) 15 of the valuation of the project, not to exceed a fee of ten thousand dollars ($10,000). 16 17 13-19 C&D diversion report exemptions. 18 19 (a) A C&D diversion report shall not be required for the following: 20 (1) Deconstruction projects. 21 (2) Work for which a building permit is not required under this chapter. 22 (3) Alterations to existing residential or non-residential buildings that affect less 23 than five hundred (500) square feet of floor area, as determined by the 24 building official. 25 (4) Removal and reinstallation of roof covering materials. 26 (5) Work for which only a plumbing permit, electrical or mechanical permit is 27 required. 28 (6) Voluntary residential seismic retrofit projects. 29 (7) Installation or replacement of shelves. 30 (8) Installation of pre-fabricated patio enclosures and covers where no foundation 31 or other structural building modifications are required. 32 (9) Installation of swimming pools and spas, provided that the exemption shall 33 apply only to (i) the area to be excavated for the installation of the pool or spa 34 and (ii) the area for the pad for the pool/spa equipment that does not exceed 35 sixteen square feet; and shall not apply to any related construction or 36 alterations necessary for any other equipment or accessories, nor to any other 37 portion of the project. 38 (10) Installation of pre-fabricated accessories such as signs or antennas where 39 no structural building modifications are required. 40 (b) No project shall be separated into smaller projects for the purpose of evading the 41 requirements of this article. 42 43 44 Tiburon Town Council Ordinance No. XXX N.S. Effective -4-42012 4 DRAFT 13-20 Certified recycling facilities. (a) The JPA may certify a facility as a certified recycling facility if the owner or operator of the facility submits the following documentation satisfactory to the JPA: (1) The facility has obtained all applicable federal, state and local permits, and is in full compliance with all applicable regulations; and (2) The percentage of incoming waste from construction, demolition and renovation activities that is diverted from landfill disposal, transformation and use as ADC meets the minimum diversion requirement as set forth in section 13-21. (b) The Town shall make available to each building permit applicant a current list of certified recycling facilities, as certified by the JPA. 13-21 Diversion requirements. Diversion requirements for a project and for a certified recycling facility shall be a minimum of seventy percent (70%) prior to December 31, 2012, and shall increase to minimums of 80% on December 31, 2012, 85% on December 31, 2015, 90% on December 311 2018, and 94% on December 31, 2025. 13-22 Use of avoided disposal re ug latory fees. Moneys received by the town as avoided disposal regulatory fees shall be used only for: (a) Costs of administration of the program established by this article; (b) Cost of programs whose purpose is to divert the waste from construction, demolition, and alteration projects from landfill disposal, transformation and use as ADC; and (c) Costs of programs whose purpose is to develop or improve the infrastructure needed to divert the waste from construction, demolition and renovation projects from disposal in a landfill, transformation facility or use as ADC. 13-23 Violations and penalties. (a) Violations of this article shall be punishable as misdemeanors or infractions, at the discretion of the Town's designated code enforcement official following consideration of the severity of the violation. Penalties shall not exceed the amounts set forth in Government Code Sections 36900 and 36901. (b) Each violation of this article is a separate offense for every day such violation shall continue, and the penalties for violation shall be imposed on each and every separate offense. (c) Nothing in this section limits the power of the Town to use all other legal or equitable remedies to redress, abate, or punish any violation of the provisions of this article, including, without limitation, those set forth in Title VI, Chapter 31 of this code. Tiburon Town Council Ordinance No. XXX N.S. Effective --/--/2012 5 DRAFT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Section 3. Severability. If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases may be declared invalid or unconstitutional. Section 4. Effective Date. This Ordinance shall take effect and be in force thirty (30) days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was read and introduced at a regular meeting of the Town Council of the Town of Tiburon, held on the _ day of , 2012, and was adopted at a regular meeting of the Town Council of the Town of Tiburon, held on the _ day of , 2012, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: JIM FRASER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK S:IPlanninglRegulationslBuilding RegulationslRecycling and Diversion Ordinance 3-27-2012 for web.docx Tiburon Town Council Ordinance No. XXX N.S. Effective -4-42012 6 Model C&D Diversion Report Form Part 1 Instructions: Complete Part 1 when applying for a building permit. Prior to requesting a final inspection and issuance of occupancy permit, submit receipts. from Approved Recycling C&D Hauler or C&D Recovery Facility along with this completed form to the Building Division. Requirements: ■ Applies to all construction, demolition and renovation projects requiring one or more building permits. ■ 100% asphalt and concrete, and at least 70% of all remaining C&D debris must be - diverted from the landfill from construction, demolition, and renovation projects. ■ Receipts for recycling/reuse/disposal must be submitted prior to issuance of occupancy permit. Part 1: Proiect Information Permit Number Job Address Type & Size of Project: Demolition sf Remodel sf New/Addition Type of Construction: ❑ Wood frame ❑ Concrete ❑ Steel ❑ Other (specify) _ Waste Hauler or Recycling Contractor Estimated Project Value $ Estimated C&D Generation Debris Weight Estimated Total Project Type Project Size Projection Factor Project Debris New construction sf X 4 lbs. / sf = Ibs. Remodeling sf X 40 lbs. / sf = Ibs. Demolition sf X 70 lbs. / sf = lbs. Demolition, including foundation sf X 100 lbs. / sf = Ibs. PROJECT TOTAL = lbs. Approved C&D Haulers TO BE COMPLETED BY FRANCHISING AGENCIES Example: Marin Sanitary Service 535 Jacoby St., San Rafael (415) 465-2601 sf Approved C&D Recovery Facilities TO BE COMPLETED BY JPA Example: Marin Sanitary Service Transfer Station 1060 Andersen Dr., San Rafael (415) 456-2601 Appendix B - 7 C&D Diversion Report Form EXHIBIT NO. Model C&D Diversion Report Form Part 2 Part 2: Documentation of Compliance to C&D Ordinance Complete Part 2a or Part 2b to show compliance with the City's C&D Ordinance requirements listed above. Part 2a: Documentation Showing Use of an Approved Recycling C&D Hauler/Facility Submit receipts from Approved C&D Hauler or C&D Recovery Facility along with this completed form to the Building Division prior to requesting a final inspection. Part 2b: C&D Diversion Report Document actual waste diversion for you project. (Please attach all receipts.) Salvage/Deconstruction, Reuse or Recycling Quantity/weight of Date of. Receipt Facility Name Materials `Diverted Materials 'Diverted Part 3: Actual Project Value and Avoided Disposal Fee Please fill out the information below as accurately as possible, and submit this completed form along with WEIGHT receipts from your waste hauler/recycler/reuse facility (note that receipts must be for weighed materials, not by material volume) prior to requesting a final inspection. Value of Project $ X 3% (but no more than $10,000) = $ Avoided Disposal Fee* *Amount due prior to issuance of occupancy permit if diversion requirements are not meet. ADDITIONAL LOCAL RESOURCES: Deconstruction Companies and Reuse Facilities Name Address City Phone Website The Away Station 109 Broadway Fairfax (415) 453-4410 www.theawaystation.org Beyond Waste 605 W. Sierra Cotati (707) 792-2555 www.beyondwaste.com Recycle Town 500 Mecham Road Petaluma (707) 795-3660 www.garbage.org Heritage Salvage 1473 Petaluma Blvd. S. Petaluma .(707) 762-6277 www.heritagesalvage. com The ReUse People 9235 San Leandro Blvd. Oakland (510) 522-2722 www.thereusepeople.org C&K Salvage 718 Douglas Blvd. Oakland (510) 569-2070 Appendix B - 8 C&D Diversion Report Form 1 sz.~ -L~ I N®. RESOLUTION NO. 59-2002 r^ A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ESTABLISHING A CONSTRUCTION AND DEMOLITION DEBRIS POLICY FOR APPLICABLE BUILDING PERMITS WI-AREAS, under the California Integrated Waste Management Act of 1989, the Town of Tiburon is obliged to divert waste from landfills by re-use and recycling and other methods; and WHEREAS, construction and demolition debris constitutes approximately 12% of materials sent from Town sources to landfills; and WHEREAS, the Council finds that reusing and recycling construction and demolition debris is essential to further the Town's efforts to comply with the California Integrated Waste Management Act of 1989 and other waste reduction goals; and WHEREAS, the Council finds that, through good faith efforts, approximately 50% of all construction and demolition debris may be diverted from landfills via reuse and recycling. The Council further finds this 50% goal can be reasonably required as a condition of the building permit and has determined to impose this requirement on a trial basis; and WHEREAS, the Town Council adopted a policy on a trial basis, as set forth in Resolution No. 02-2002, and agreed to review the success of the policy at the end of the trial period and consider making the policy permanent; and WHEREAS, the Town Council has found the policy to be successful and wishes to adopt it as permanent policy. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Tiburon to adopt the following requirements as conditions of approval on all building permits as of the date of adoption of this Resolution: 1. All applicants for a building permit likely to generate substantial construction or demolition debris must prepare a Waste Management Plan ("wMP") to be included with their permit application. The WMP shall state the amount of construction and demolition debris generated by the project that can be diverted from landfills via reuse or recycling. The Building Official shall use reasonable discretion in determining whether work authorized by a permit is likely to generate substantial construction debris and is appropriately subject to the policy. Those permits deemed subject to the policy shall be required to comply with the policy as a condition of approval on the permit. Tiburon Town Council Resolution No. 59-2002 10-16-02 1 _...;...1J i N 2. The Tiburon Building Division will verify compliance with the WW at completion of each permitted project subject to the policy... The permit holder shall confirm compliance by presenting copies of receipts from a Materials Resource Recovery Facility (MRRF), jobsite cleanup service, or deconstruction/salvage company/vendor. 3. If the Building Official determines the permit holder has failed to make a good faith effort to comply with this condition, the Building Official shall either, at his discretion, require the permit holder to provide further explanation for their failure to comply, or impose upon the permit holder an administrative fine of $500 for violation of building permit conditions of approval. PASSED AND ADOPTED at a regular meeting of the -Town Council of the Town of Tiburon on October 16, 2002, by the following vote: AYES: COUNCILMEMBERS: Fredericks, Gram, Slavitz, Thompson NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Berger TOM GRAK OR TOWN OF TIBURON AT'TE DIANE CRANE I, T WN CLERK Tiburon Town Council Resolution No. 59-2002 10-16-02 2