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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 3nnrsw\106\memo\09\co1eman.msr 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 BAN s,oF- PAc-k SovFeld ID(A Sono NEW OuG-ovTS tN RED CHAN6e ln�eld sioE off' out OQ�i 1416 (4 +o S, S6 �Y l oa L � (Acoq Na-� " 00 z 23 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