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Agenda ltem No. 13e.
Staff Report
Date:
April6, 2017 Council Meeting
To:
Mayor Hoertkorn and Ross Town Council
From
Joe Chinn, Town Manager
Sal Lucido, Contract Building Official
Subject:
110 WindinB Way, Appeal of Construction Penalties Assessment
Staff Recommendation
Town Council approval of Resolution L999 accepting the reduced penalty of 586,500 as
negotiated between Town staff and the appellant for the appeal of construction penaltiesagainst the real property at 11.0 Winding Way.
Project Summary
Owners:
Location:
Project:
Town File Number:
Permit Number(s):
Project Valuation:
Permit lssued Date:
Construction Completion Deadline
Project Final date:
Calculated Penalties:
Negotiated Penalty:
Remaining Construction Deposit:
Ms. Kimberly Nunes
L10 Winding Way (APN 072-10L-02)
SFD Addition and Remodel with New Guest House
Hillside Lot, Variance and Design Review, File No. L9L6
18030, L81.42, t81.47, 1.8375, 18406, t862L
5L,226,t30
8/s/L4
2/5/L6 (L8 months)
r0/6/t6
S161,500 (244 days past deadline)
Sgo,soo
544,48s.26
Background
The duration of construction projects in Ross is governed by the Time Limits for Completion of
Construction Ordinance (Ross Municipal Code, Chapter 15.50). The ordinance establishes
procedures, timelines, and penalties to ensure that projects are completed in a timely fashion
with the least amount of impact on the surrounding neighborhoods. Under the Ordinance, a
project of this building permit valuation has L8 months to complete construction.
t
On May 9,2013, Councilapproved Hillside Lot, Variance and Design Review, File No. L9L6
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L. new lap pool to the rear (northeast) of the residence and associated retaining wall;
2. remodel of the existing residence including new windows and siding on each elevation;
3. addition over the garage;
4. new detached guest house and studio
5. landscape modifications including new retaining walls, re-grading the driveway, and new
6.
vehicle entry gate;
encroachment permit for new fencing and pedestrian gate within the Winding Way rightof-way.
Construction documents were submitted in April of 2Qt4. After several submittals to address
corrections, a Building Permit was issued for construction on August 5,2014. Work proceeded
at a slow pace under the original contractor and several design changes were submitted during
construction. After 16 months, a new contractor was selected to complete the work, and the
project was completed on October 6,20L6.
On November L, 20L6, the Town sent a letter to the owner (Attachment 3) advising that the
project completion of construction was 244 days beyond the l-8-month time limit specified in the
Ordinance and thus is subject to construction penalties in the amount of 516L,500.
On November L6, 20L6, the Town received a properly filed letter of appeal from the appellant
(Attachment 4). Staff contacted the appellant to schedule a council meeting date for public
hearing and set up a meeting between staff and the appellant to discuss the points outlined in
the appeal and to review the supporting documentation referenced.
On Tuesday, January 3L,20t7, Town staff (Chinn & Lucido) met with the appellant (Nunes), the
contractor (Upscale), and project manager (David Brent), to go over the initial appeal letter.
Based on the discussion and information provided by staff, the project team elected to revise
their appeal letter.
On March 8, 20L7, the Town received a revised appeal letter (Attachment 5). Based on
subsequent discussions between the project team and Town Staff, a mutually agreeable penalty
determination was reached.
Discussion
An owner may appeal a construction completion penalty, "on the grounds that the property
owners were unable to comply with the construction time limit for reasons beyond the control
of themselves and their representatives." The grounds for appeal include, but are not limited to,
"labor stoppages; acts of war or terrorism; and natural disasters." Grounds for appeal do not
include, "delays caused by the winter-rainy season; the use of custom and/or imported materials;
the use of highly specialized subcontractors; significant, numerous, or late design changes; access
difficulties associated with the site; failure of materials suppliers to provide such materials in a
timely manner; or by delays associated with project financing." (RMC 515.50.090(a))
2
The constri;ction completion oi'dinance fi¡rthei' provides, "'vVhen appealing penalties ... the
appellant shall subm¡t documentary and other evidence sufficient to establish that design decisions, construction drawings and documents, bids and construction contracts, permit
applications, and compliance with all required permit conditions were undertaken in a diligent
and timely manner. Required documentary and other evidence shall demonstrate to the Town
Council's satisfaction that construction delays resulted from circumstances fully out of his or her
control and despite diligent and clearly documented efforts to achieve construction completion
within those time limits established in this chapter. Penalties made pursuant to this section shall
not be modified or cancelled unless the evidence required in this section is submitted at the time
of appeal."
Town staff reviewed the appellant's letter and supporting documentation and generally concurs
that compliance with the time limit was beyond the control of the appellant. The appellant
requested a reduction of 90 days for the reasons cited in the March 8 letter. Staff and the
appellant believe a 75-day reduction is appropriate and that the resulting 586,500 construction
penalty is a fair amount for this project.
The Town Council must hold a hearing on the appeal and may affirm the negotiated penalty or
otherwise modify or cancel the penalty. lf Council chooses to modify the negotiated penalty, it
will likely be necessary to continue the hearing so that Council can review the full breadth of
documentation provided by the appellant and in addition have the Town and Fire Department
staff provide additional information.
Fiscal, resource and timeline impacts
lf theTown Council upholdsthe penalties, a small portion of the penaltieswill be deposited into
the General Fund to offset the additional staff costs associated with processing the appeal and
the much larger remaining portion will be deposited into the Facilities and Equipment Fund.
Alternative actions
The Town Council may increase or reduce the construction completion penalty though any
modification to the agreed to amount will likely require a new hearing date for the full breadth
of documentation to be presented by the appellant, Town staff, and Fire Department staff.
Environmental Review
Not Applicable.
Attachments:
t. Resolution No. 1999
2. Project Time Line Overview
3. Town letter of Construction Penalty Determination dated 1.L/L/t6 (S. Lucido)
4. Letter of appeal from Kim Nunes dated 1,1./L6/1.6
5. Revised Letter of appeal from Kim Nunes dated 3/8/L7
3
Referenced Documents:
L. RMC 5L5.50 - Time Limits for Completion of Construction Ordinance:
htto ://www.town ofross.o rslsites/d efa u ltlfi es/f i eattach m e nts/a d m i n i st rati
7/15.50 time limits for completion of construction.pdf
I
2.
I
on / p aee/
24
LL0 Winding Way Staff Report from Mav 9, 2013 Council Meetine:
http://www.townofross.orelsites/default/files/fileattachments/town council/meetine/
630/aeenda-item-12-LLO-wind
i
ns-wav-staff-report.pdf
4
ATTACHMENT
1
TOWN OF ROSS
RESOLUTION NO. 1999
A RESOLUTION OF THE TOWN OF ROSS DETERMINING THE FINAL
AMOUNT OF CONSTRUCTION DELAY PENALTIES FOR
110 W|ND|NG WAY, ROSS, CALTFORNTA (APN O7a-LOL-OZI
The Town Council of the Town
of Ross hereby finds, determines, orders and resolves
as
follows:
Section 1. Findinss.
L.
Ross Municipal Code, Chapter l-5.50, Time Limits for Completion of Construction requires
property owners seeking to improve their properties to complete construction in a reasonable
amount of time as provided in the Code in order to ensure that neighborhood quality of life is
maintained and that activities associated with construction, such as increased noise, traffic and
associated impacts, are managed in a reasonable way.
2.
There exists certain real property within the Town of Ross known as LL0 Winding Way,
California94957 (APN 072-L01-02) (the "Property")which is owned by Kimberly Nunes (the
"Owner").
Ross,
3.
ln 2013, the Owner applied for a Hillside Lot, Variance and Design Review. On May 9,
20t3, the Town Council approved the Hillside Lot, Variance and Design Review, File No. 1916 (the
"Project"). The required building permit was issued on August 5,2014. Based on the valuation
of the Project at5!,226,L30, construction was required to be completed within 18 months under
Chapter L5.50 of the Municipal Code. This deadline was February 5,20L6.
4.
Construction documents were submitted in April of 20t4. After several submittals to
address corrections, a Building Permit was issued for construction on August 5, 20L5. Work
proceeded at a slow pace under the original contractor and several design changes were
submitted during construction. After l-6 months, a new contractor was selected to complete the
work, and the project was completed on October 6,20t6..
5. On October 6, 201.6, the Town of
Ross Building Department provided its final
determination and acceptance of the improvements. Staff has accepted this determination as
the date of finalcompletion of the Project which was244 days beyond the 18 month construction
completion deadline.
6.
On November L, 2Qt6, the Town sent a letter to the Owner advising them that the
construction penalties under Chapter L5.50 amounted to the sum of S161,500. On November
L6, 20L6, the Town received a timely filed appeal of this penalty determination. The Owner
revised the appeal with a letter on March 8,20L7.
7.
Staff has concluded that the sum of 586,500 is the appropriate construction delay penalty
amount based on granting a reduction of 75 days out of the 90 days requested. The Owner agrees
that the proposed penalty amount of 586,500 is appropriate and it is willing to pay this amount
without objection.
8.
The appeal hearing before the Town Council was properly set for the April 6, 2017 Town
Council meeting. The Owner agreed that the appeal could be heard on the consent calendar if
the Council determined after reviewing the staff report and related documents that the
appropriate amount of the penalty is 586,500 as recommended by staff and agreed to by the
Owner.
Section 2. Decision.
L The facts and findings set forth in Section 1 of this Resolution are true and correct and
hereby adopted by the Town Council.
2.
The Town Council hereby determines that the construction delay penalties shall be in the
sum of 580,SOO for the Project.
3.
The Town Clerk is directed to certify to the adoption of this Resolution and transmit copies
of this Resolution by certified mail, return receipt requested to the Property Owner, and to cause
a certified copyof this Resolution to be placed permanently in Town records.
The foregoing resolution was duly and regularly adopted by the Ross Town Council at its
regular meeting held on the 6th day of April,2OI7, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Kathleen Hoertkorn, Mayor
ATTEST:
Linda Lopez, Town Clerk
ATTACHMENT 2
Attachment
1-
Ross Valley Fire
Dote
Project Time Line Overview
Department Timeline Summary
A
o3/22/2013 Planning Dept Review
04/23/20L3 Planning Dept Resub
04/L0/20L4 Building Dept Plan Review
06/19/2014 Plan Resub #2
oe/28/20L4 Plan Resub #3 (Pool)
01/06/201s Plan Resub #4 (Revisions to Main House)
oL/20/201s Plan Resub #5
09/L0/201s Sprinkler Plan Submittal
10/07/201s Sprinkler Hydro lnspection on Guest House
12/2e/20Ls Project Meeting with Upscale Construction
03/L4/20L6 Sprinkler Hydro lnspection on Main House
02/22/20L6 Fire Hydrant Flow Test
08/2s/2016 Fire Sprinkler Final
0e/01/20L6 Fire Sprinkler Re-inspection
oe/1-s/20L6 VMP Plans Submitted
L0/04/20L6 Project Final lnspection
Status
lncomplete
Approved 05/03/2073
Plans Approved 4/t8/t4
Approved O7 /L7 /t4
Approved LO/3L/ L4
Plans Approved Ot/22/ 15
Plans Approved 02/ t7 / t5
Plans
Plans
Plans Approved
Passed
Passed
Passed
Failed
Passed
Plans Approved
Passed
Building Department Plan Review Timeline Summary
Date
4/4/14
e/24/14
1o/1/L4
12/22/14
7/2/1s
e/4/1s
10/L2/1s
2/8/1_6
2/8/16
s/1s/16
e/1_s/1_6
tDe
ton
Main House Remodel
Guest House (Reducing Size)
Pool Permit
Revision to the Main House
Revision to original plans
Revision to original pool plans
Revision to original pool plans
Roof Mounted Solar-Equipment Room
Roof Mounted Solar-Main House
As-Built Pool Plans
Deferred Landscape Submittal
5
Plan Review Stotus
Approved 7 /24/t4 (3rd Submittal)
Ap proved t0 / 8/ L4, del ivered t0 / L0 / 2OI4
Approved t2/ tg / t4, Delivered L2/22/ t4
Approved 2/9/tS (2nd Submittal)
Approved tO/t2/15 (2nd Submittal)
Approved 9/4/Ls
Approved t0/ L9/ 15, Delivered t0/2A/ß
Approved 2/9/L6
Approved 2/9/t6
Approved 9/79/16
Approved w/redlines 9 / t9 / L6
Project Timeline Overview
DATE Descri
4/3/L4 lst Submittal for
4/1_8/1_4
4/L6/1_4
6/1en4
7/e/1_4
7/1_6/14
7/1-7/14
7/2e/L6
8/sfi4
s/11/14
e/2e/L4
Lo/6/L4
L0/1o/14
L0/31/14
L0/3L/L4
LL/L3/L4
1Lfi.3/L4
LL/24/L4
L/22/1s
2/s/16
2/e/1s
2/26/1s
e/24/1s
12/3fi5
2/1_1_/1_6
1o/4/L6
1o/6/16
L0/27/L6
SFD Home Remodel,
-
New Pool & Retaining Wall Repairs
Denied
Building - Denied (comments sent)
2nd subm¡ttal at ToR
Planning Denied -tree protection
2nd Submittal Comments sent to architect
Fire - Approved
Planning Approved
Permit lssued to Alderson Construction (18030)
Owner Changes scope in a letter RE: reduced size of guest house
Resubmitted new plans 9/24/ L4
Pool plans submitted
lssued comments on pool plans
Revised Guest House plans
RVFD approved pool plans
RVFD approved revised guest house
Poôl resubmittal
RVFD approves pool
Planning approved pool
RVFD Approves Main House plan revisions
Completion Deadline per RMC 15.50
Permit No. 18142 for Main house revision, upgrade of existing permit
Contractor pulled Pool Permit LgL47
Permit 18375 for pool structural changes, upgrade of existing permits
Change in contractor to Upscale Construction
Permit 18406 by A1 solar for 2 solar permits
RVFD Final
Building Department Final (and date used to compute penalties)
Permit L862L, by Upscale construction for Landscape
Fire
6
ATTACHMENT 3
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Ito.ss
November
I,2Ot6
SENT VIA CERTIFIED MAIL
Ms. Kimberly Nunes and Mr. MichaelSalomon
SENTVIA EMAILTO:
kimsol.n [email protected]
P. O. Box 426
Ross, CA 94957
RE
110 Winding Way (APN 072-LOt-O2l - Permits: 18030, L8L42, tBL47, 18375, L8406, 18621
Time Limits For Completion of Construction Penalty Determination
Dear Ms. Nunes and Mr. Salomon;
Per the Town's "Time Limits
for Completion of Construction Ordinance" (Ross Municipal Code, Chapter
15,50, attached), you were allowed 18 months to complete the project based on a project valuation of
51,226,L3O. The permit was issued on 8l5lt4, which means that the deadline for completion was 215116.
However, your project received final Building Department approval onLO/6/t6, a total of 244 days past
the completion date. A penalty for 5tt7,0t+.74 is due the Town based on the following calculation, less
your deposit of 544,485.26 as follows:
Tier
L
2
3
4
Start Range
End Range
1st 30 Days (grace period)
2/s/2OL6
Day 31 to the 60th Day
3/6/2016
4/s/2016
6/4/2016
3/s/20L6
4/4/20L6
6/3/20L6
to/6/20L6
Days Past Deadline
Day 61 to the 1"20th Day
Day 12L-Completion
Days
Dai ly F rne
30s
305
60s
124
Totals:
s
Penalty
$
2s0
s
s00
s
30,000
s
124,000
s
161,500
s
44,485.26
1,000
244
Less Remaining Deposit:
Total Amount Due:
7,500
s LL7,014,74
This penalty may be appealed to the Town Council within 10 days according to the process specified in
Ross Municipal Code Section 15.50,090. Please note that an administrative fee of $1,598 is required to
appeal this determination and must be paid prior being scheduled for a regular Town Council meeting.
Sincerely,
TOWN O
SS
Salvatore A. Lucido, P.E.
Contract Bu ilding Officia
cc
I
Joe Chin n, Town Manager ([email protected])
Simone Jamotte,
Encl.:
Bu
ilding Department Secreta ry
Time Limits for Completion
-
(sja
[email protected])
Chapter L5.50 Muni. Code, Acknowledgement
P.O. BOX 320, ROSS, CA 94957-0320
415.453.1453 . FAX 415.453.1950
www. tow n of ros s, o rg
ATTACHMENT 4
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P.O. Box 426
Ross CA94957
kimol.n-L¿lss@enaail,çsm
Mr. Salvatore A. Lucido
Contract Building Offrcial
P.O. Box 320
Ross, CA 94957
November 16,2016
RE: Formal request to appeal permit penalties for 110 Winding Way
Dear Mr. Lucido,
Here is a summary of the project at I l0 Winding Way to give you some context for the request
to reduce the penalty fees for exceeding the Town of Ross construction timeline.
I asked David Brent, a construction project manager, to step in and help evaluate my project in
September of 2015. At that time, the project was one year into construction and revealing
circumstances relative to a "construction perfect storm": all those involved having good
intentions - albeit, spread too thin, either personally or professionally, during a busy economy -
resulting in CD document coordination issues, schedule impacts and resulting unexpected budget
increases.
Elements contributing to the delay in the project schedule
The initial project permit for the Guesthouse/Annex (built with the intention of Ross
affordable housing as per the separate address and utilities assigned) was pulled in early
September 2014 and demolition and excavation started. Work was very quickly stopped
due to an inaccurate tree survey and therefore inaccurate building location, requiring
permit resubmittal to correct structure location and pier and retaining wall redesign for
the new location. A revision application was submitted on September 24,2014. Planning
signed off immediately. This resubmittal took until early December to get released by
Coastland and Ross Valley Fire. At the request of project architect, the town manager at
the time approved doing the work prior to permit being released in December so the
project could get restarted on November 20,2014. I believe the resubmittal did not get
reviewed in a timely manner which caused work to be stopped for approximately 2 -l12
months.
¡
As with all distressed projects, the goal was to retain the original general contractor and
try to finish the project with them. When David andlrealized the level of management
support needed for the project from the general contractor, it was apparent the original
contractor would not be able to adequately perform the level of project management
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complete the project in December 2015.
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Repair work related to structural engineer and town inspector site inspections to review
the existing work day-lighted non-conforming work done by the previous contractor that
needed correction.
The project architect had personal issues that took him away from the project at a crucial
time in the construction detailing process, leaving the architect unavailable for extended
periods during mid-201 5.
During the project, I tried vigilantly to keep neighbors informed of progress and delays,
mitigating as much as possible the impact to the neighborhood while pushing the construction
team to try to stay on schedule. To implement the change in general contractors I incurred legal
fees, repair work costs and town penalties. I am humbly asking the town of Ross to make
financial considerations for a project that was not delayed intentionally but rather had a variety
of contributing issues and problems that caused the project to go beyond the l8 month time limit.
I appreciate the time and consideration you have put into this.
Sincerely,
Kimberly Nunes
cc: Simone Jamotte, David Brent
ATTACHMENT 5
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lì ullvù
P.O. Box 426
Ross CA 94957
kimsglryg@,etqAl.cggl
Mr. Salvatore A. Lucido
Contract Building Offi cial
P.O. Box 320
Ross, CA 94957
March 8,2017
RE: Formal request to appeal permit penalties for 110 Winding Way
Revision to the November 16,2016letter
Dear Mr. Lucido,
Here is a summary of the project at I l0 Winding Way to give you some context for the request
to reduce the penalty fees for exceeding the Town of Ross construction timeline. I am asking for
a reduction of 90 days to the 244 penalty days that my project is past deadline.
I
asked David Brent, a construction project manager, to step in and help evaluate my project in
September of 2015. At that time, the project was 12 months into construction, and having started
in August of 2074, was revealing circumstances raising concern about meeting the 18 month
construction deadline.
History and elements contributing to the delay in the project schedule:
.
Assembling the team: Relating to 15.50,090 (c): I hired an architect with whom I had
done a small remodel project that went very well. (Prior to this project, I had never done
anything this large). I hired a general contractor that had just successfully finished a
project larger than 110 Winding Way in Ross with a prominent architect. That my
architect and general contractor had known each other for many years seemed a good
start to my due diligence of assembling a successful team and so thought I had done a
good job researching and choosing competent professionals for my project.
Permitting: Relating to 15.50,090 (c): We received our building permit in August of
2014.I was initially told by both the architect and general contractor that the permitting
review process for our resubmittal had added time delays for the overall project because
it prevented the project inspections and the site work from moving forward. Upon further
review of this by planners this turned out to not be the case and in fact the town inspector
had offered ways to work around the plan updates while they were being processed. This
caused me some pause at the time but not knowing how the town resubmittal process
worked I did not know how to interpret my team's information about the town's review
timing. I understood we did our best to comply with getting timely permits.
Contractor issues revealing concerns: Relating to 15.50.090 (a) (l) labor stoppage: In
September 20I5,I received an unexpected and very large change order request from my
contractor. When David Brent and I reviewed it's content, we began to suspect the level
of management being provided by the general contractor was not of a degree needed for
the project to be successful. We tried to manage the original architect/general contractor
team through October and November 2015 with weekly meetings and meeting notes in
hopes the project could be brought back in line but it became apparent the original
contractor would not be able to adequately perform the level of project management
needed without large oversight costs from David. In December 2015, a new general
contractor with appropriate management capability was brought on board to complete the
project. I spent $21,410 on project management support that should have been supplied
by a competent general contractor and attempting to keep the existing team in place
added at least 30 da)'s to the project.
New contractor: Relating to 15.50.090 (a) (1) labor stoppage: The new general
contractor, Upscale Construction, took 30 davs to mobilize and get the project moving in
a good direction (January 2016.) Once they got critical subs under contract the project
took 9 months to complete (October 2016.) I feel that this is a reasonable amount of time
to complete a 3,000 square foot project where rough framing was about 650á complete,
windows and doors were not installed, nor any siding, trim or mechanical, electrical or
plumbing. This coordination cost was $28,590.00.
Remediation of existing work: Relating to 15.50.090 (a) (1) labor stoppage: The
structural engineer and the town inspector had site inspections during the contractor
transition that day-lighted non-conforming work done by the previous contractor that
needed corrective action. This added 30 4A8 to the project and cost $106,000.
Project coordination: Relating to 15.50.090 (a) (l) labor stoppage: The project architect
had personal issues that took him away from the project at a crucial time in the
construction detailing process, leaving the architect unavailable for extended periods
during mid-2015. There was simply nothing anyone could do about this.
¡
Neighbors: Relating to 15.50.020 (d): I have been in contact with all 3 adjacent
neighbors on Winding Way many times during the project regarding any concerns they
may have had about my project impacting the neighborhood - Maren and Michael
Bannon at II2, Nancy and Michael Alvarez at 100, and Mr. and Mrs. John Larson at I02
They all support my request for penalty reductions and have no desire to speak against
the project.
During the project, I tried diligently to keep neighbors informed of progress and delays,
mitigating as much as possible the impact to the neighborhood while pushing the construction
team to try to stay on schedule. To implement the change in general contractors I incurred legal
fees, project take over costs, remedial work costs from the previous conhactor and town
penalties which is why I am asking for the 90 day reduction. I am humbly asking the Town of
Ross to make financial considerations for a project that was not delayed intentionally but rather
had a variety of contributing issues and problems that caused the project to go beyond the 18
month time limit. I appreciate the time and consideration you have put into this.
Sincerely
Kimberly Nunes
cc: Simone Jamotte, David Brent, Danny Bernardini, Joe Chinn