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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: AUGUST 19, 2003
SUBJECT: OCEAN TRAILS - PEER REVIEW BOARD SERVICES
Staff Coordinator: Gregory Pfost, AICP, Deputy Planning Director
That the City Council either: (1) authorize the Mayor and City Clerk to enter into an agreement between the City and Ocean Trails pertaining to the Peer Review Board, and to execute the proposed Agreements for Professional Services between the City and the Peer Review Board Members, or (2) continue this matter until the next Council meeting.
In June 1992, the City Council approved the Ocean Trails project, which, at that time, included an 18-hole golf course, clubhouse, public open space and 83 single-family residential lots. The project as currently entitled includes an 18-hole golf course, 75 single-family residential lots, 4 on-site affordable housing units, a Clubhouse, Maintenance Building, open space lots, and a variety of public amenities.
Currently, Phase I Grading, which is composed of the golf course and all of Tract No. 50667, including the residential lots located on the east side of the Ocean Trails project, is nearing completion. Additionally, since the final map for Tract 50667 has been approved by the City Council and recorded, and the grading for the residential lots within Tract No. 50667 has been completed, the developer can begin selling and building units from that tract. Phase II grading, which encompasses the housing portion of VTTM 50666 is currently under construction. As the Council knows, Ocean Trails recently has suggested that they plan to revise VTTM 50666 to install a driving range in place of some of the proposed residential lots within VTTM 50666. However, the City has yet to receive an application to amend VTTM 50666 for these purposes.
Construction on the landslide repair is moving forward. In fact, the rough grading has been completed and the developer is in the process of conducting the finish contouring for this portion of the golf course. Ocean Trails projects that the full 18-hole golf course, with all recent modifications completed (waterfalls, tee and green changes), will be open in March 2004.
In addition to Landslide C, an existing ancient landslide (Landslide A) also is located within the boundaries of VTTM 50666. A portion of the golf course (Holes #10 and #11) is located on Landslide A. Staff has informed the developer that because there are uncertainties as to the exact location of the boundaries of Landslide A and the respective foundation setback line, which determines where residential homes may be constructed in proximity to Landslide A, this issue will need to be addressed prior to City Council approval of the Final Map for Tract 50666. There is also a much smaller ancient landslide on the property located on the seaward side of Hole #11, between Landslides A and C, which is known as Landslide B. There are no improvements currently located or anticipated over Landslide B, except for a steep public dirt trail that switchbacks from the end of the future Ocean Trails Park to the beach below.
From time to time, the City has retained one or more geologic and/or geotechnical experts to review determinations made by other experts in those fields. Frequently, several experts from different disciplines have been retained by the City and have comprised a "panel of experts." Sometimes experts have been used to corroborate determinations or recommendations that have been made to the City, and on other occasions, one or more experts have been used to settle a dispute between a project expert and an expert that has been retained by the City to review the project expert’s work. In both instances, having other experts available to the City has been helpful in successfully resolving the issue.
Because these additional experts are not retained by a developer or by the City as its own expert, they usually do not collect data or prepare studies. Instead, they review studies or data that have been collected and analyzed by others. As such, they do not issue permits; they do not function as the City’s primary reviewer of technical information, and they have a limited role. Because the role of these experts is limited, they may not be employees of large companies and might not have the same professional liability insurance and financial resources available to them in case of litigation relating to their decisions.
Cotton Shires Associates (CSA) is the City's geotechnical consultant responsible for reviewing geotechnical issues pertaining to the Ocean Trails project. Shortly after the failure of Landslide C, which occurred on June 2, 1999, the City engaged the assistance of a "panel of experts" to provide additional third-party geotechnical review over the complexities surrounding the landslide repair efforts. The "panel of experts" included Bing Yen, Glenn Brown and Monte Ray.
In addition to reviewing the landslide repair, the "panel" was involved in the review of other geotechnical issues pertaining to Ocean Trails, such as the Landslide A investigation as it relates to the location of the foundation setback line in the proximity to the residential lots within Vesting Tentative Tract Map No. 50666 (VTTM 50666). The purpose of the Peer Review Panel's involvement in this issue was to settle a difference of opinion between the City's Geologist (CSA) and the Developer's Geologist (Converse Consultants). Basically, CSA feels that Landslide A daylights into VTTM 50666 further inland and into some of the residential lots, than what Converse Consultants believes. Although both parties believed that there was enough evidence to prove either side, the Peer Review Panel was unable to make a determination as to which party was correct. Instead, they requested that additional review of existing data be performed and additional data be obtained in the field. Since Ocean Trails felt that there was enough information available to make a decision on this issue, Ocean Trails requested that a new Peer Review Panel be formed and that both the City and Ocean Trails must agree to be bound by the recommendations and determinations of the new Panel. The Council Subcommittee, consisting of Mayor Stern and Councilmember Clark, believed that this was a reasonable solution to resolving the outstanding geological issues.
Subsequently, Ocean Trails and the City developed a process by which the new panel would be formed. Cotton Shires and Converse each would select a list of geologists. Both parties had veto power over geologists on the other party’s list. Staff contacted each of the eligible geologists to determine if they were interested in serving on the Panel. Then, each party would select a geologist from the other party’s final list, and those two geologists would select the third member of the Panel from the remaining list of approved geologists. Each side has picked a geologist to serve on the Panel, and both geologists have indicated that they are willing to serve.
However, on or about August 11, 2003, Ocean Trails stated that they prefer to have the third member of the Panel be a geotechnical engineer. Pursuant to that suggestion, Staff obtained a list of potential geotechnical engineers from Cotton Shires and Converse. Staff is in the process of providing each party’s list to the other party to determine if they wish to veto anyone on the other party’s list. Once the final list is determined, Staff will contact the eligible group of geotechnical engineers and determine who is willing to serve on the Panel and then provide that list to the two Panel members who already have been selected so that they can choose the third member.
Meanwhile, the City Attorney had prepared: (1) an agreement between the City and Ocean Trails to document the process and the agreement for both parties to be bound by the recommendations and determinations of the Panel and (2) a proposed form of agreement between the City and the members of the Panel. These agreements were provided to Ocean Trails and its attorneys, who made suggested changes, which have been incorporated into the agreements. Then, the agreements were provided to the two members of the Panel who have been selected. The Panel members each have expressed some concerns about certain provisions and have made suggested changes to the agreement between the City and the Panel members. Some of those changes are diametrically opposed to provisions that Ocean Trails either wants to include or exclude.
One particular area of concern is that the members of the Panel receive an agreement from the City and Ocean Trails to indemnify, defend and hold them harmless from any decision that they may make regarding the project. Ocean Trails previously had deleted that provision from the agreement that the City Attorney had prepared. (The Council may recall that the members of the prior panel also raised this issue.) The City Attorney has communicated these concerns to the attorney for Ocean Trails, but as of the date of the preparation of this report, the issue has not been resolved. Accordingly, the draft agreements have not been included in the packet, since they have not been finalized.
Hopefully, this entire process will have been completed before this Council meeting. However, it is possible that the process may not be finished in time for the Council to approve the agreements at this meeting. If the process has been completed, Staff is requesting that the City Council authorize the Mayor and City Clerk to execute an agreement with the each of the members of the Panel and with Ocean Trails. If the process has not been completed in time for the documents to be completed, reviewed and approved by the City Council, then Staff recommends that this item be continued to the next Council meeting.
For the reasons noted in this report, Staff recommends that the City Council either continue the item or authorize the Mayor and City Clerk to execute the proposed agreements.
In addition to the staff recommendation, the City Council may also wish to consider the following alternatives:
1. Decline to execute an agreement with the panel members or with Ocean Trails.
2. Identify any issues of concern with the process or the agreements, provide Staff with any direction, and continue the item to the next Council meeting.
Each of the agreements contains a fee for service to be paid to the Consultant by the City. However, there are no Fiscal Impacts to the City as a result of this decision, as all fees paid to the Consultants by the City are through a Trust Deposit Account replenished by the developer.