HomeMy WebLinkAboutNB 4 SLOPE WARRANTY 10-16-89TO:
WILLIAH A. HUSTON, CITY MANAGER
FROM:
COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT:
APPEAL OF PLANNING COMMISSION APPROVAL OF SLOPE WARRANTY PROGRAM
RECOI~ENDATION
Pleasure of Council
BACKGROUND
The Planning Commission at a regular meeting on September 25, 1989 reviewed and
approved a Slope Warranty Program as required by. the recently adopted Grading and
Excavation Ordinance. A letter from ~che Foothill Community Builders appealing the
Planning Commission decision was received on September 27, 1989.
Provisions of the Grading and Excavation ..Ordinance establish Hillside Review
Procedures for proposed grading within areas located within the boundaries of the
Hillside District shown in the East Tustin Specific Plan and certain hillside areas
outside the East Tustin Specific Plan area. In reviewing applications for Hillside
Review, the provisions of the Grading and Excavation Ordinance require Hillside
Review permits to be conditioned upon the applicant or owner.'s warranty of slopes
through implementation of a Slope Warranty Program. The ordinance also required the
Slope Warranty Program to be subject to approval and review by the City Attorney and
the Planning Commission, subject to appeal to the City Council.
The two points of disagreement that the Foothill Community Builders (FCB) has with
the Slope Warranty Program are as follows-
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Page 2, Ztem 2a under Program Description identifies slopes equal to or greater
than 5 feet in vertical height as being covered by the Program. FCB has
requested that this height be raised to lO~feet.
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Page 3, Item 3 requires a repair agreement for interim emergency slope repairs
occurring within five years of the date of certification of the grading work for
a slope (this includes landscaping required by grading work). FCB has argued
that this term should be reduced to three years and begin when slope work is
finished rather than when slopes are certified as complete by the City.
In preparing the recommended Slope Warranty Program the City Attorney's office has
done considerable research and has coordinated extensively with staff and the Irvine
Company. Advice was also obtained from the City's engineering consultant on
grading. Staff believes the attached Slope Warranty Program is consistent with the
Grading and Excavation Code and will ensure that interim emergency repairs will be
made including stabilization of any slope displacement while ultimate responsibility
is being determined for hillside slope failure.
City Council Report
Appeal of Slope Warranty Program
October 16, 1989
Page two
With the program as adopted by the Planning Commission, staff feels the City can be
assured of a high level of confidence in protecting the public health and safety.
The Slope Warranty Program is attached as adopted by the Planning Commission
approval. The staff and City Attorney's office will be available to summarize the
program, provide additional justification for the Planning Commission positions and
answer any technical questions the City Council may have.
Ch-~istine A~ ShingletOn,////
Director of Community De~l opment
CAS:kbc
Attachment
Community Development Department
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RKE: R, WOODRUFF
rORNI:Y$ AT LAW
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SLOPE WARRANTY PROGRAM
FOR THE EhST TUSTIN
Subsection C(8)n. of Section 8914 of the Tustin Grading
and Excavation Ordinance, which applies to hillside areas of
the City, imposes the following requirement'
"Preparation and recordation of a declaration of
covenants, conditions and restrictions providing
for the development and maintenance of slopes and
drainage devices shall be a condition of approval
on tentative subdivision maps. Every permit shall
also be conditioned upon the applicant and/or
owner's warranty of -all slopes through applicant
and/or owner implementation of a slope ~warranty
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program subject to approval and review by the City
Attorney ahd Planning Commission, and subject to
appeal to the City Council."
Compliance with the following slope warranty program will
satisfy this requirement for the Hillside District of East
Tustin.
Statement of Objectives
There ~ave been instances in other cities 'where a slope
failure has occurred, and the required slope stabilization and
repair work has been delayed while the potentially responsible
parties have argued among themselves concerning actual
responsibility. The City of Tustin wishes to avoid that
situation with development in its hillside areas. The primary
method chosen for accomplishing that goal has been to identify.
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1 a responsible person/entity who will be obligated to make'"
interim emergency r~pai~s and stabilize any slope displacement
while ultimate responsibility is being determined.
The program is not intended to and does not supersede the
requirement for bonds to assure performance of the grading work
in accordance with approved plans and specifications or to
guarantee maintenance and repair of City streets, all as set
forth in Tustin City Code Section 8917(c).·
Program Description
10 1. With the exception of minor grading projects
11 described in Tustin City Code Section 8914c( 4 ), an applicant
12 for a grading permit must show compliance with this Slope
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13 Warranty Program (the "Program") prior to issuance of a grading
14 permit by the City. ~- ~
15 2. The following slopes ("warranty slopes") will be
16 covered by the Program and identifie.d by the Planning
17 Commission as part of the grading concept approval-
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manufactured slopes equal to or greater than five (5)
feet in vertical height and having an average slope
at or steeper than four (4) horizontal to one (1)
vertical foot but not to exceed two to one; and
other manufactured slopes which, in the judgment of
the Planning Commission should be included in the
slope warranty program because of the existence of a
substantial risk to public improvements or the
property of another party in the event of a slope
failure.
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1 c. an individual lot owner who is building.on a custom
2 lot or a single-family homeowner may be exemp't from
3 this Program if the Planning Commission, for good
4 cause shown and upon making both of the findings set
5 forth below, exempts from this Program those warranty
6 slopes which, in the judgment of the Planning
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8 (i) do not pose a r~sk of harm to public
9 improvements
10 (ii) do not pose a risk of harm to the property of
11 another party.
12 In. making such determination the Planning Commission
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13 shall consider, among other things, the proximity of
14 the proposed manufactured slopeis) to public
15 improvements and the proximity of the propbsed
16 manufactured slope(s) to adjacent real property and
17 structures (including proposed structures).
].8 3. As a condition to issuance of any grading permit that
19 will involve the creation or alteration of any warranty slopes,
20 the landowner shall deliver to the City a written agreement
21 (the "Repair Agreement") that the landowner shall undertake, or
22 cause to be undertaken, interim emergency repairs of any "slope
23 displacement" occurring within five (5) years of the '"
24 certification of completion of the grading work for the slope
25 unless the Repair Agreement is earlier terminated as described
~6 in this Program. The~ phrase "slope displacement,, shall mean
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6 b.
Displacement of soil on a warranty slope .at a depth
Of two fee-~'"or more (measured at right angles to the
slope face), with vertical movement of one foot or
more, regardless of cause, and regardless of the
square footage involved, or
Displacement of S0il on a warranty slope with
vertical movement of one foot or more and involving
an area of at least 900 square feet, regardless of
depth and regardless of cause·
10 Slope displacement does not include surface cracking or
11 fissures, erosion (unless erosion ultimately results in slope
displacement ) or displacement of soil caused solely by
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13 earthquake or seismic activity'
14 4. Any Repair Agreement s,h. all be terminated in whole
15 in part, as applicable, by-
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City's issuance of a subsequent grading permit for
any warranty slope (which shall require prior
compliance with this Program), except where Section
9(c) applies. In the event the Repair Agreement
covers more than one (1) slOpe, a subsequent grading
permit will terminate the repair obligations 9nly as
to the slopes or portions thereof affected by the
subsequent permit, or
24 b. City approval of a substitute Repair Agreement, in
25 accordance with Sections 6 or 9(a).
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City shall give written notice of such termination to
the obligor under the Repair Agreement.
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1 5. Upon the formation of a homeowners' association charged
c by the CC&R's with the responsibility for maintaining and
,~ rep~iir.[llg tile warranty SlODeS,
4 Agreement and security is provided by the homeowners'
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associatiog, directly to the City as set forth in Section 6, the
6 obligations under Repair Agreement(s) covering the same slopes''"
? shall continue, but-the obligation thereunder to make emergency
8 repairs in the event of a slope displacement shall be secondary
9 to the obligation of-the homeowners' association to undertake
10 that repair, and shall operate in the' same manner as a
11 performance bond or similar security for the .obligation of the,..
12 homeowners' association to undertake such repairs. In the
15 event a homeowners' association is unable or unwilling to
14 perform the repair in a timely, manner, city shall provide
15 written notice to the obligor under the applicable Repair
16 Agreement of'its obligation to perform the Agreement The time
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17 specified for performance shall be thirty (30) days, unless
18 City determines, in its discretion, that the slope displacement
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poses a substantial risk of harm to public or private
improvements, in which event a shorter time frame for action
may be specified.
6. Any Repair Agreement with a homeowners' association
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or by any person or entity having a net worth of $1,000,000.00
or less, as determined by City pursuant to Section ?, shall be
secured in one of the following ways, at the election of the
association or landowner. Such agreement and the security
therefor shall 'be subject to the approval of the Director of
~K~ ~ WOOI~RUFF
'ORN£YS AT LAW
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Community Deb opment and the City Attorney.
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delivery of a bond or bonds by one or more duly
authorized corporate securities, in an amount equal
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to fifty-five cents ($0.55) per Square foot of
warranty slope face, but in no event more than
$100,000 (the "Security Amount"). The bond shall
name the City as a beneficiary and shall include
reasonable costs and expenses, including attorneys
fees, incurred by City to"enforce the obligations of
the agreement ....
deposit of an amount of money equal to the Security
Amount with the City or a City-designated escrow
agent or trust c~Dmpany;
deliverY of an irrevocable letter of credit payable
to City in the Securit'~ Amount issued by a financial
institution(s) subject to regulation by the state or
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fed'eral government;
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delivery of a performance guaranty in a form approved
by the City Attorney, executed by a person or entity
having a net worth exceeding $1,000,000.00, as
determined by City pursuant to ·Section ? below, and
who is' (i) a legal or equitable owner of' the land
containing the warranty slopes, (ii) a developer or '"
subdivider of such land, or (iii) a person or entity
who is a joint venturer or venture partner in any
such owner, developer or subdivider. Such person or
entity shall agree to perform the obligations of the
homeowners, association in the event that the
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homeowners' association is unwilling or unable to
perform. The performance guaranty shall provide for
the award of City's reasonable costs and expenses,
including attorneys fees, in the event the guarantor
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fails to perform and the City shall be entitled to
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seek specific performance and/or damages pursuant to
CCP Sections 638, et seq.; or
Written proof to the satisfaction of City of the
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establishment of a separate slope maintenance and
repair reserve by the homeowners, association equal
to the Security Amount.
1~ 7. In determining whether any person or entity has a net
13 worth exceeding $1,000,000-.00 as provided in paragraph 6 above,
14 the Director of Community Development may rely upon a
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15 declaration made under penalty of perjury executed by such
16 person, or an officer of the entity, to the effect that the
17 person or entity is worth more than $1,000,000 in real or
18 personal property, over and above all debts and liabilities.
19 In addition to the penalties for perjury, it shall be a
20 misdemeanor for any person to deliver to the City a declaration
-21 that is untrue, and the City shall be entitled to recover...
treble its damages incurred as a consequence of a delivery to
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~o3 it of a false declaration. The declaration shall include the
24 following acknowledgement, in bold-faced type, of this
~o5 provision of this slope warranty program-
26 "IT IS HEREBY ACKNOWLEDGED AND UNDERSTOOD THAT THE
27 CITY INTENDS AND WILL RELY UPON THE ACCURACY OF
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ALL STATm.,£NTS CONTAINED IN THIS DECLARATION. THE
DECLARATION FURTHER ACKNOWLEDGES, UNDERSTANDS AND
ACCEPTS THAT,. IN ADDITION TO THE PENALTY OF
PERJURY, IT IS A MISDEMEANOR FOR ANY pERSON TO
DELIVER TO THE CITY A DECLARATION THAT IS UNTRUE,
AND THAT THE CITY SHALL BE ENTITLED TO RECOVER
FROM DECLARANT AND THE ENTITY ON WHOSE BEHALF THIS
DECLARATION IS EXECUTED, TREBLE ITS DAMAGES
INCURRED AS A CONSEQUENCE OF A:DELIVERY TO IT OF A
FALSE DECLARATION."
8. A Repair Agreement with any person or entity exempted
12 under Sections 6 and ? from providing security shall provide
that City shall be entitled to specific performance and/or
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damages pursuant to CCP Sections 638 et seq,,
14 and that City
15 shall also be entitled to its '~easonable costs and expenses,
including attorneys fees in the event the landowner fails to
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17 perform and City is forced to seek specific performance or
perform the repair itself.
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9. No individual lot owner will be issued a permit to
grade a warranty slope during the warranty period unless- (a)
the owner provides a substitute Repair Agreement, with adequate
security, as described in Section 6; or (b) delivers to the
City a written guarantee from the slope warrantor and its'"
surety that ~uch grading will not terminate the warranty; or
(c) the grading is otherwise exempted front this program. In
the case of (c), City shall first demand that any slope
displacement be repaired by the lot owner. Any substitute'"
warranty security or....guarantee shall be subject to. approval of
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1 the Director..of Community Development and the City Attorney.
~ 10 Any warranty provided under this Program represents
3 a commitment to make emergency repairs as reasonably required
4 by the City to stabilize the slope and prevent further
5 displacement, and is not a commitment to undertake a comDlete
6 and final restructuring and repair of the slope displacement.,,,.
? Any repair work undertaken under this Program shall not be an
8. admission of ultimate liability fo~ the slope repairs. The
9 person or entity performing repair work as required by this
10 Pro§ram shall be entitled to recover the costs incurred in such
11 perfOrmance from the person or persons ultimately found to be
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12 liable for the slope displacement.
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11. This slope warranty program only deals with the
14 obligations owing to the City. ~ny person §lying a warranty to
15 the City under the slope warranty program may privately
16 contract with another party to be held'harmless from and
17 against the liabilities created, although the City shall not be
18 required to release the warrantying party.
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,ORN~:¥$ AT LAW
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