HomeMy WebLinkAboutAgenda Packet - PR - 1995.02.16BURLINGAME PARK AND RECREATION COMMISSION
7:30 p.m., Thursday, February 16,1995
Conference Room A, City Hall
501 Primrose Road, Burlingame
1.
Rol
Call
Henderson, Kelly, Nilmeyer, Nyhan, Pera, Roberts, Yawn
2.
Approval
of Minutes
Approve the minutes of the January 19,1995 meeting
3.
Old
B sin _s
A.
Washington Park Tennis Court 'Bumps" (Informational Report)
B.
Arbor Day Celebration/Field Dedication @ Franklin School
10:00 a.m., Tuesday, March 7, 1995
C.
Teens:
1) Adopt recommendation re procedures to add two Youth Advisory
Members to the Commission.
2) Update on issues re programs for teens
4.
New
Business
A.
Together We Can Make a Difference Program
5.
Reports
A.
Park Director
B.
Recreation Program Staff Report - Tricia Pinney, Recreation Supervisor
C.
Recreation Director
D.
Commissioners
6, Public Comment,
This is the opportunity for members of the public to address the Commission regarding
items not otherwise on the agenda.
7. Adjournment
Next Meeting: Thursday, March 16, 1995
' 1 :
11 11 : 11, ; 1
850 Burlingame Avenue
Burlingame, Californis 94010
Phone 344.6386
February 15, 1995
TO:
FROM:
SUBJECT:
Park and
MEMORANDUM
CONFIDENTIAL AND PRIVILEGED
John Williams
Communication
Washington Park Tennis Court 'Bumps"
As per our discussions at the January Commission meeting, City Attorney Jerry Coleman has
requested assistance from a Bay Area firm that specializes in municipal law in the matter of the
"bumps." Burlingame has used this firm before on several occasions. Attached for your review is
a memo from Attorneys Riback and Roberts spelling -out several of the issues and suggesting
some possible courses of action. This letter speaks to the importance of gathering more
information about the problem so as to select the proper course of action.
The City Attorney is planning to get more specific advice about the problem, with the intention
that he will get back to you by your March meeting with some specific recommendations. I will
continue to keep this item on your monthly agenda until such time as it is resolved or closed.
All of the information in the attached letter and in my cover memo fall into the category of
attorney -client communication. Please keep these written documents and the information within
them confidential.
cc: Jerry Coleman
MEYERS, NAVE, RIBACK, SILVER & WILSON
A Professional Law Corporation
Michael R. Nave
Steven R. Meyers Gateway Plaza
Elizabeth H. Silver 777 Davis Street, Suite 300
Michael S. Riback San Leandro, CA 94577
Kenneth A. Wilson Telephone: (510) 3514300
Facsimile: (510) 3514481
Clifford F. Campbell
Michael F. Rodriquez
Kathleen Faubion
Wendy A. Roberts
David W. Skinner
Steven T. Mattas
Rick W. Jarvis
Veronica A. Nebb
CONFIDENTIAL --PRIVILEGED
Of counsel:
Andrea J. Saltzman
MEMORANDUM
Santa Rosa Office
555 Fifth Street, Suite 230
Santa Rosa, CA 95401
(707) 545-8009
(707) 545-6617 (Fax)
Reply to:
San Leandro
TO: Jerry Coleman DATE: February 13,
City Attorney
FROM: Michael S. Riback
Wendy A. Roberts
RE: Legal Remedies Concerning Tennis Court Failure
ISSUE PRESENTED
1995
What are the legal remedies available to the City of
Burlingame with regard to the failure of the Washington Park
tennis courts as evidenced by "bumps" which continue to reappear
on the surface of the courts?
BACKGROUND
The City contracted with Interstate Grading and Paving (IGP)
to perform the resurfacing of the tennis courts. The courts were
completely resurfaced by IGP's subcontractor, Malott & Peterson -
Grundy in 1990. The designer of the tennis court project was
Steven Kikuchi. In the fall of 1991, bumps appeared on the
surface of the courts. The City notified IGP, who repaired the
courts in April, 1992. In December, 1992 the bumps reappeared
(three reappearances and two new bumps). The City notified IGP
of the bumps, but did not request that they be fixed, rather
stating that they would keep an eye on the courts during the
winter and make a thorough inspection in March. No record exists
as to whether the courts were again inspected and repaired in
1993. In March of 1994, the courts were again inspected and 12
bumps were found. The City informed IGP of the bumps in April,
1994. In June, the City repaired the bumps themselves, at a
TO: Jerry Coleman, City Attorney
FROM: Michael S. Riback
Wendy Roberts
RE: Legal Remedies Concerning Tennis Court Failure
DATE: February 13, 1995
PAGE: 2
total cost of $391.25. The City again contacted IGP in June,
1994 to inform them that the City had repaired the bumps
themselves, but enclosed a bill for the work performed. A third
letter was sent to IGP in September 1994. IGP sent a letter to
the City Attorney in October, 1994 stating that they had, in
fact, called the City in May and in June, but offered no solution
to, nor accepted responsibility for, the failure of the tennis
court. The subcontractor, Malott & Peterson -Grundy has filed for
bankruptcy protection.
BRIEF ANSWER
The City may have a legal remedy against the contractor,
designer or supplier under an action for breach of contract,
breach of warranty or negligence. Different statutes of
limitation apply to these causes of action. Critical to the
determination of which theory should be pursued is the
determination of the cause of the bumps which have arisen in the
tennis courts.
DISCUSSION
a. Theories of liability
California law provides a number of legal theories which may
be pursued when construction is defective. An owner (the City in
this case) can seek retribution under one of three primary bases
of liability: tort law, contract law, and warranty law.
Liability under a tort cause of action would require a showing of
negligence in the construction or design of the improvement.
While a contractor does not guarantee the adequacy of the plans
and specifications, the contractor does warrant that the
improvements will be built according to the plans and
specifications and will be suitable for the use and purpose for
which they are constructed. Mannix v. Tryon (1907) 152 Cal 31,
40, 91 P 983, 987. (Unless, of course, the contractor also
prepared the plans and specifications, in which case the
contractor is responsible for the accuracy of the plans and
specifications.) If the defect lies in the plans and
specifications themselves, the party who prepared the plans and
specifications will be liable.
TO: Jerry Coleman, City Attorney
FROM: Michael S. Riback
Wendy Roberts
RE: Legal Remedies Concerning Tennis Court Failure
DATE: February 13, 1995
PAGE: 3
The general contractor is also responsible for the
negligence of the subcontractor. If the subcontractor performs
his/her work negligently the general contractor will be liable to
the owner for the damage caused by the subcontractor's defective
work. Sabella v. Wisler (1963) 59 Cal.2d 21, 28, 27 Cal.Rptr.
689, 377 P2d 889. The general contractor is then entitled to
indemnity from the subcontractor. Thus, the fact that the
subcontractor, Malott & Peterson -Grundy is in bankruptcy will not
prevent the City from recovering its damages.
A landowner may bring an action under a contract cause of
action as well, or for a breach of the implied warranty. All
construction contracts carry an implied warranty, that the
product will be fit for its intended use. These causes of action
are not exclusive of one another and a landowner may have a cause
of action under all three theories of liability when a defective
condition exists.
b. Proving a Defect Exists
Whether or not the improvements are defective, and whether
or not the improvements have been constructed in a good and
workmanlike manner and according to specifications is a question
of fact. The fact that the bumps are appearing in the tennis
courts does not in and of itself prove a defect in the
construction. An expert must be retained to determine the cause
of the bumps. The contractor may attempt to show that the plans
and specifications prepared either by the City or by the designer
were defective or inappropriate for the conditions or soils
associated with the tennis court area. The contractor also may
try to show that the some of the materials with which they
constructed or paved the tennis courts were defective. This is a
determination that must be made by an expert, and will require a
showing of proof if challenged by the contractor.
C. Measure of Damages
If it can be determined that the work is defective, the
measure of the owner's damages is the cost to replace or repair
the defective work. Glendale Federal Savings & Loan Association
v Marina view Heights Development, Inc. (1977) 66 Cal.App.3d
101, 123, 134 Cal. Rptr. 802; Jones v. Kvistad (1971) 19 Cal.
App.3d 836, 843, 844, 97 Cal.Rptr. 100. Although it is unlikely
in this case, any damage to the landowner's (or an adjacent
TO: Jerry Coleman, City Attorney
FROM: Michael S. Riback
Wendy Roberts
RE: Legal Remedies Concerning Tennis Court Failure
DATE: February 13, 1995
PAGE: 4
landowners) property or to any person injured as a result of the
defect is also compensable.
d. Statute of Limitations
The time limit for filing a lawsuit involving defective
construction work varies greatly depending on the theory of
liability. When an action is based on breach of contract, the
applicable statute of limitations period is two years for oral
contracts and four years for written contracts. Code of Civil
Procedure Section 337(1). For actions based upon negligence, the
action must be commenced within three years from the date the
cause of action accrues. CCP section 338(b). If the action is
based upon breach of the implied warranty, the limitations period
depends on the nature of damages. If the action seeks repair or
replacement of the defective materials the limitations period is
four years under a written contract. CCP section 337(1). This
period is extended by any time that the contractor attempts to
correct or repair the defective condition. CCP section 338(b),
Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 585, 12
Cal.Rptr 257.
The date the cause of action accrues depends on whether the
defect can be plainly seen or whether it remains hidden until it
later manifests itself. If the defect is patent, or plainly
visible, the limitations period begins to run when the work is
completed. If the defect is latent, a defect which is
undetectable until a later time when the damage becomes apparent,
the limitations period does not commence until the defect is
discovered. Moseley v. Abrahms (1985) 170 Cal.App.3d 355, 359,
216 Cal.Rptr. 40.
For all of these limitations periods, there is a maximum
limitations period designed to protect contractors from endless
exposure for defects which may not become evident for 15, 20, or
30 years. The length of this maximum limitations period depends
upon whether the defect is latent or patent. If the defect is
patent the maximum period in which the plaintiff can file an
action is four years after the defective improvement was
substantially completed regardless of the application of other
limitations periods. CCP section 337.1.
On the other hand, if the defect is latent, and does not
�- become apparent until some later point in time, the maximum
TO: Jerry Coleman, City Attorney
FROM: Michael S. Riback
Wendy Roberts
RE: Legal Remedies Concerning Tennis Court Failure
DATE: February 13, 1995
PAGE: 5
statute of limitations is ten years following substantial
completion of the improvement, regardless of when the defect is
discovered. CCP section 337.15. These maximum limitations apply
to all actions whether based on a tort or contract theory of
recovery. Moseley, supra, 170 Cal.App.3d at 360-362.
A determination of whether a defect is latent or patent
depends on whether it is "apparent by a reasonable inspection."
CCP section 337.15(b). Latency can also apply to the cause of
the defect as well. The damage may be apparent, but if the cause
is not then the defect is considered to be latent as well. Baker
v. Walker & Walker, Inc. (1982) 133 Cal.App.3d; Geertz v. Ausonio
(1992) 4 Cal.App.4th 1363, 6 Cal.Rptr.2d 318. In the Baker case
an office building experienced extreme temperature fluctuations
for ten years following completion of construction, which could
not be corrected despite the contractor's and manufacturer's
attempts to do so. In the tenth year an employee died of
- pneumonia due to this temperature fluctuation. The court held
that even though the air conditioner problem was known for ten
years, the cause of the problem was unknown and therefore the
defect was latent.
In the situation with regard to the tennis courts, it is
arguable whether this is a patent or a latent defect. The bumps,
while not patent at the time of completion of construction,
appeared within a year and a half of construction. The City
clearly had notice of the problem in the fall of 1991. Thus, the
earliest that the statute of limitations would begin running
would be the fall of 1991. However, since the statute is tolled
while the contractor attempts to repair the problem, the statute
would be tolled until December 1992, when the bumps reappeared.
However, applying the Baker rationale, it can be argued that
while the bumps were apparent, the cause of the bumps still has
not been determined. Thus, pursuant to the holding in Baker, the
bumps might be considered to be a latent defect, because the
cause has yet to be determined.
RECOMMENDED ACTION
In determining which course of action the City should
pursue, it is crucial to first determine the cause of the bumps.
An expert should be retained to determine what is the proximate
cause of the bumps. Once the cause is determined, the City can
TO: Jerry Coleman, City Attorney
FROM: Michael S. Riback
Wendy Roberts
RE: Legal Remedies Concerning Tennis Court Failure
DATE: February 13, 1995
PAGE: 6
determine the nature of the defect and against whom the City
might seek reparation for the damage, and under which of the
above theories of liability.
If the City does decide to retain an expert to determine the
cause of the bumps, it should do so as soon as possible in order
not to run afoul of the various limitations periods.
Wendy Roberts and I both are available to discuss this
matter further with you at your convenience, and to assist in any
action the City desires to initiate in this matter.
Meyers, Nave, Riback, Silver & Wilson
Mike Riback
MSR:dsp
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1
11 11 1 11 1 1 �,11
o' 850 Burlingame Aranue
li9l� Burflnoa . CaMlmnla 84010
Phone 344.6386
MEMORANDUM
February 10, 1995
TO: Park and keereation Commission
FROM: Director of Recreation
SUBJECT: Proposed Procedure for Yo Advisory Commission Members
Recommendation. I recommend that the Park and Recreation Commission approve the
procedures and time schedules attached and then request City Council approval and direction to
proceed with the addition of two Youth Advisory Commissioners to the Park :Lad Recreation
Contnlission.
Background. After discussion ofprogram ideas for young people at two Commission meetings
and three public Teen Commnittee meetings, the Park and Recreation Commission recommended
that the City Council approve the addition of two youth advisory members to the Park and
Recreation Commission. At its December 5, 1994 meeting, the Burlingame City Council
approved the youth member concept and directed the Commission to return to the Council with
proposed procedures for implementing the youth member proposal.
At the Commission's January meeting, Commissioners reviewed staff proposals and directed staff
to return to the February meeting of the Commission with specific proposals for implementation
of the new youth program.
Discussion, After reviewing this idea with Commissioners, school personnel and other City staff,
the consensus opinion is that high school seniors tend to be distracted with the many activities
surrounding their final year and we should limit applications to young people entering their
sophomore or junior years. Although it is desirable to have one boy and one girl representative, it
may not be desirable to state that, but rather to see what the applicant pool brings.
The youth advisory member position should be open to all otherwisequalified young people who
reside in Burlingame, irregardless of where they attend school. In order to permit the maximum
number of young people to participate in the program, youth member terns should probably be
limited to one year terms. If terms are designed to fit the City s fiscal year, new members could be
selected in the spring each year and then ease their way into their new assignment over the
summer months. Youth members could be "up -to -speed" and ready to participate fully for the
balance of their one-year term when school resumes in September.
Recruitment fliers and applications will be circulated to each of the local high schools and
throughout the community. Burlingame High School Principal Larry Teshara has volunteered to
circulate fliers and applications, as well as assisting in any other way possible. Applications can be
collected by the Recreation Department staff. It may also be appropriate to require that
applicants attend one Commission meeting prior to the final screening process so that they have
some idea how the Commission does its business.
There are several different ways that the selection process could be structured. I believe that the
most efficient process would be for the Commission to conduct the selection process and then ask
the City Council to ratily the two finalists for appointment as Youth Advisory Commissioners.
Attached is a schedule with a proposed timeline. It will need to be flexible for at least the first
year, since we have no hint as to the number of applications that might be received.
attach: 1. Proposed Schedule for Selection of Youth Advisory Commissioners
2. Proposed Procedures for Selection of Youth Advisory Commissioners
Attachment 1
CITY OF BURLINGAME
Park and Recreation Commission
ANNUAL SCHEDULE FOR YOUTH ADVISORY COMMISSION MEMBERS
March - Announcement fliers and application forms distributed
April - Applications accepted
May - Screening of applicants, preliminary interviews
3rd Thur in June - Final interviews & selection by Park and Recreation Commission
1st Mon in July - City Council review and appoint Youth Advisory Commission Members
3rd Thur in July - Youth Members attend 1st Commission meeting
June 30 (Next year) - Youth Members terms end
Attachment 2
2/9/95
CITY OF BURLINGAME
Park and Recreation Commission
SELECTION PROCEDURE FOR YOUTH ADVISORY COMMISSION MEMBERS
Youth Members will be selected annually in the Spring for a one year term beginning with
the first Park and Recreation Commission meeting in July and ending June 30 of the
following year.
2. Youth Members will be selected by the Park and Recreation Commission in a competitive
process and two finalist candidates will be recommended by the Commission to the City
Council for ratification and appointment.
Youth Members must be residents of the City of Burlingame and, at the time of
application, must be students currently enrolled in grades 9 or 10.
4. All candidates must fill -out the prescribed City of Burlingame application form Resumes
and/or written statements may be attached to the application to provide further
information about the candidate.
5. All candidates are required to have attended one regular meeting of the Park and
Recreation Commission prior to the Commission's final selection on the 3rd Thursday
evening of June.
6. Specific slection and appointment procedures will be announced annually at the beginning
of the recruitment process for the following year.
I-
850 Burlingame Avenue
Burlingame, California 94010
Phone 344.6386
February 2, 1995
TO: Don Roberts, Chairman
Park & Recreation Commission
FROM: John Williams
Director of Recreation
SUBJECT: New Community Action Plan for Youth
MEMORANDUM
The Recreation Department is working in concert with the Burlingame School District on a
project to develop more total community involvement in programs for kids in the community.
Although Burlingame is a special place, I am sure that we all agree that kids here face most of the
same difficult issues that young people face all over the country. We are trying to leave no stone
unturned in our efforts to communicate with Burlingame kids and to encourage their participation
throughout the entire community.
The School District is taking the lead in a new project called "Together We Can" which is based
on the idea that, especially in times of reduced resources, we all need to collaborate if the kids of
the community are to be successful. I am really excited that the School District has taken the
point on this project that extends even beyond regular school programs.
Several of us met with a school superintendent from Southern California to discuss the
community involvement program that he has developed. We think that the program he described
could work well in Burlingame and we would like to share some of the ideas with members of the
community here. I would like one or two of our Park and Recreation Commissionersto
participate
in
the
process. Many other segments of the community have also been as a to
participate
in
this
process.
I would ask that you appoint one or two Commissioners to represent the Commission at a one -
hour informational meeting about the proposed program. Two alternative meetings are scheduled
in March (flier attached). I will be available at your February Commission meeting to explain the
program further and answer any questions.
Together
We Can !hake
A Difference
Come hear about how you and your organization
can work together with others in the
Burlingame community
to
make a difference for youth
L
1� TWC.95.4
Attend one of the information meetings
at the
Burlingame Recreation Center
850 Burlingame Ave.
Lounge I
on
March I at 4:00 p.m.
or
March 8 at 8:00 a.m.
RSVP to Eloise Feeley,
Administrative Assistant to the Superintendent
Burlingame School District
259-3805
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BURLINGAME RECREATION DEPARTMENT
Collection Report
February
'94-95
'93-94
'92-93
COLL. YTD
COLL. YTD
COLL. YTD
February '95
(8 MONTHS)
(8 MONTHS)
(8 MONTHS)
1
Pre-school ..............
$355.00
$41,877.90
$41,538.68
$37,376.01
2
Packages ...............
150.00
18,412.73
18,561.35
12,298.31
3
Trips ...................
0.00
6,674.20
3,678.00
3,406.06
4
Advertising .............
56.00
2,052.00
556.00
1,725.00
5
Domestic Arts ...........
128.50
3,341.62
5,176.00
2,713.00
6
Special Interest Classes.....
4,657.37
55,461.15
53,238.58
48,995.07
7
Singles .................
0.00
765.00
1,016.60
2,032.00
8
Art -in -Park ..............
435.20
436.79
450.36
455.64
9
Childrens Art .............
409.00
9,264.50
13,519.05
13,510.51
10
Adult Arts/Crafts..........
2,632.00
33,247.44
38,765.45
35,548.00
11
Office Supplies............
51.50
82.15
390.85
411.32
12
Tennis Court Rentals .......
540.00
1,685.00
2,787.00
3,793.00
13
Music ..................
272.00
7,977.50
7,275.81
5,960.00
14
Theatrics ...............
0.00
82.00
260.00
201.00
15
Dance (Ballet,Ballroom)....
1,305.00
12,617.04
13,324.55
11,971.20
16
Tennis Lights ............
306.18
1,777.18
2,270.35
2,170.20
17
Elementary School Sports ..
0.00
13,072.50
10,321.00
9,296.75
18
Junior Sports .............
482.50
18,871.50
16,245.50
14,864.00
'-,19
Physical Fitness..........
4,942.00
39,035.17
39,340.69
38,363.77
20
Tickets/Gymnastics.......
0.00
845.45
1,867.05
2,784.00
21
Golf ....................
Z10.00
3,456.94
3,392.24
6,765.75
22
Sports, Misc.............
1,714.00
25,451.09
18,307.50
14,081.80
Z3
Martial Arts ..............
0.00
5,306.62
6,125.00
4,261.00
24
Building Rental...........
1,729.50
11,899.00
10,834.50
13,249.30
25
Tennis ..................
1,146.63
16,636.26
17,059.00
17,731.25
26
Vending ................
300.00
2,867.46
3,020.39
3,193.13
27
Materials Sold............
846.90
11,951.36
12,721.36
13,064.58
28
Field Lights ..............
40.00
1,032.00
624.50
151.25
29
Field Permits .............
0.00
2,190.00
2,356.00
2,282.50
30
Softball .................
200.00
42,375.00
38,976.85
36,954.50
31
Basketball. ..............
4,146.00
7,751.00
1Z,053.00
12,979.00
32
Volleyball/Sailing .........
899.00
9,822.00
7,993.00
6,825.80
33
Park Permits .............
75.00
750.00
405.00
781.00
34
Art Sales ................
0.00
793.78
968.55
887.40
35
Swimming ...............
0.00
8,670.49
8,605.10
9,500.88
36
Senior Nutrition Program ...
1,112.49
9,003.75
8,589.78
7,864.11
37
School District ...........
0.00
2,325.00
0.00
825.00
Totals
$29,141.77
$429,860.57
$422,614.64
$399,273.09
Less Refunds
1,523.25
12,784.50
12,531.35
12,210.64
Net
$27,618.52
$417,076.07
$410,083.29
$387,062.45