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HomeMy WebLinkAboutApprove Removal and Replacement Policy for Park Play Equipme co,r,. L., w Ir/l� - PLAk4,Wadw Council/Agency Meeting Held: ► 1 Deferred/Continued to: , W/APProved ❑ Conditionally Approved ❑ Denied Dtf-;� City erk's Signature Council Meeting Date: 11/17/97 Department ID Number: CS 97-061 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, Acting City Administrator^0 PREPARED BY: RON HAGAN, Director, Community Service w SUBJECT: APPROVE REMOVAL AND REPLACEMENT POLICY FOR PARK PLAY EQUIPMENT Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachments) Statement of Issue: Should the City Council approve the establishment of short and long term policies for replacement of worn play equipment in city parks? Funding Source: Park Acquisition and Development Fund Recommended Action: Motions to: 1. Remove potentially unsafe play equipment in Huntington Central, Hawes, Lake View, LeBard, Marina, Schroeder, Seabridge, Wardlow and Worthy Parks as presented in Attachment#1, and 2. Approve the short and long term policies to address Consumer Products Safety Commission (CPSC) guidelines and Americans with Disabilities Act (ADA) for replacement of play equipment in city parks as presented in Attachment#2. Altemative Action(s): 1. Modify the list of parks proposed for removal of play equipment. 2. Provide different direction regarding short and long term policies for addressing CPSC guidelines and ADA. Analysis: The Community Services Commission has been working diligently for over a year to address the playground needs in city parks. This has required input from the city's Risk Manager, Loss Control Consultant and City Attorney because of the impacts of Consumer Products Safety Commission guidelines for play equipment, as well as Americans with Disabilities Act requirements in providing accessibility to playgrounds. The problem has been made more complicated by the lack of available funds in the Park Acquisition and Development Fund to replace play equipment that was removed, as well as the impacts of new CPSC guidelines and ADA on play equipment. In addition to the problem of previously removed equipment, the commission and staff feel that there is REQUEST FOR COUNCIL ACTIUN MEETING DATE: 11/17/97 DEPARTMENT ID NUMBER: CS 97-061 an immediate need to remove existing equipment that has been identified as potentially unsafe and a liability concern: Mark-IV play units at Huntington Central Park—west, Hawes and Worthy Parks; Space port units at Lake View and LeBard Parks; Fire engine at Marina Park; Space ship at Schroeder and Wardlow Parks; and, Wood slide and ship at Seabridge Park. These pieces of play equipment do not meet the CPSC guidelines because of height, entrapment areas, or other criteria. There are also fifteen parks with some or all play equipment removed and one park in which no play equipment was ever installed. The above mentioned playground issues and associated parks are included on Attachment #1. There have been many requests from the community to replace the play equipment in the fifteen parks where the equipment has already been removed because of safety and liability reasons. Commission has made this a high priority as evidenced by the $250,000 budgeted in FY96/97. This amount was carried over to this fiscal year while the commission waited for legal opinions on CPSC and ADA and the Council approved allocations of$250,000 per year for FY97/98 and FY98/99. Addressing the CPSC guidelines and ADA requirements has been a challenge. Attachment-#5 is a memo from the Risk Manager listing play equipment deemed unsafe. Legal opinions are also provided by the City Attorney regarding the impacts of CSPC guidelines and ADA requirements. The commission and staff are recommending short and long term policies to address the problems that exist within the park system relating to play equipment, CPSC guidelines and ADA requirements. The short term policy is: SHORT TERM POLICY Remove any play equipment that city's Risk Manager and/or Loss Control Consultant have deemed to be an increased liability exposure to city. Equipment will be replaced based on availability of space in each tot lot to the ADA and CPSC guidelines in order of priority as established by the Community Services Commission. Due to financial constraints, only each removed piece of play equipment will be considered for replacement at this time; the entire park will be addressed relative to ADA and CPSC guidelines at a later date. This will address the immediate concerns of removing potentially unsafe equipment within parks. It also addresses the community concerns to replace play equipment that has been previously removed. The plan is to accomplish this task in twenty-four months. This would be accomplished with the funding of $750,000, noted above, that has been approved by Council. Commission will recommend pieces of modular play equipment to fit in four different sized areas. This will enable the commission and staff to work quickly to fill an existing open space in a tot lot with the largest appropriately sized piece of modular play equipment. A public meeting will be held in January to allow interested members of the public to provide input regarding the standardized pieces of play equipment that will be recommended by commission. Signs advertising the public meeting will be posted at all tot lots where play equipment has been removed, and newspapers and Channel 3 will also advertise the public meeting. Commission and staff recommend the standardized approach above. This approach will also mean that none of the neighborhood tot lots will be enlarged or physically altered. Because of the new 0028213.01 -2- 11/05/97 2:23 PM RQUEST FOR COUNCIL ACTION MEETING DATE: 11/17/97 DEPARTMENT ID NUMBER: CS 97-061 CPSC guidelines for safety distance around play equipment, a larger piece of modular play equipment may have been removed, such as the Mark IV and, a smaller piece put in its place because larger safety distances or buffers are required by these guidelines. But this will enable the city to address all of the playgrounds in question by putting in a standardized piece of equipment that will fit in the existing open space available in each tot lot. The long term policy is much more comprehensive than the short term, but it lives within the financial constraint of the limited budget. The long term.policy will allow for the city to meet the full intent of CPSC and ADA guidelines. The long term policy is as follows: LONG TERM POLICY 1. Meet the intent of ADA by renovating playgrounds to ADA at Huntington Central Park and Community Parks (Edison, Murdy, Marina and Worthy) because these are the parks with the greatest number of public users. This also means addressing CPSC at these sites. 2. Address ADA and CPSC on all new parks. 3. Repair rather than replace park play equipment whenever possible to postpone addressing ADA and CPSC until funding is available. (City will not retrofit equipment due to loss of product liability from manufacturer). 4. City will address ADA complaints as they arise on a case by case basis. 5. After 1 -4 above are addressed, prioritize all remaining parks to address ADA and CPSC until entire park system has been renovated and upgraded. Notes: (1) Repairing a piece of play equipment does NOT mean city has to address CPSC or ADA on the site. (2) If a piece of play equipment is unsafe, city should remove piece even if there are no funds to replace it. The risk of an ADA suit based on failure to comply is not as great as a liability suit for bodily injury from unsafe play equipment. (3) When replacing a piece of play equipment, the new equipment will meet the ADA and CPSC guidelines and fit into the existing tot lot space. Commission and staff feel that this is a reasonable overall approach to a multi-million dollar problem. By standardizing the play equipment, taking an aggressive approach to the purchasing and installation process, and not expanding tot-lot sizes, the task of addressing the short term policy can be completed within twenty-four months. This will address the current liability of play equipment deemed potentially unsafe by the Risk Manager and Loss Control Consultant and will accomplish the task with the funds available. It also meets the desires of the residents who have had one or more pieces of play equipment removed from neighborhood park tot lots. The City Attorney's Office has indicated that the short and long term policies are a reasonable approach considering the potential liability and funding constraints to addressing CPSC and ADA. Environmental Status: Not applicable 0028213.01 4- 11/05/97 2:23 PM tQUEST FOR COUNCIL ACTION MEETING DATE: 11/17/97 DEPARTMENT ID NUMBER: CS 97-061 Attachment(s)• DescriptionCity Clerk's Page Number No. 1 Proposed playequipment ent rep lacementlacement priority i tto a 'o regarding reasonable approach of short and 2 A m s Opinion n C O ..........::......'.................._.<.. City Y P 9 9 PP .........................._._..... ................................................. long term policies- September 30, 1997. ................................................... ................................................... ................................................... ................................................... ........................................... ................................................... ................................................... 3. City Attorney's Legal Opinion regarding CPSC and ADA - August 15, 1997. Xon: so e lacementprocess--ACTION 4. Short term playground equipment r P Y9P PLAN »........... 5. Memo from Risk Manager RCA Author: Hagan/Engle 0028213.01 4- 11/05/97 2:23 PM ATTAC HMENT # 1 PLAYGROUND EQUIPMENT AND PARK MAINTENANGr- COMMITTEE PROPOSED PLAY EQUIPMENT REPLACEMENT PRIORITY SHORT TERM POLICY TO ADDRESS CRITICAL SAFETY AND COMMUNITY CONCERNS: Take out unsafe equipment and replace as soon as possible. Replace all playground equipment that has been removed with similar piece of equipment that meets ADA and CPSC guidelines without addressing remainder of park. 1. PLAY EQUIPMENT DEEMED UNSAFE PER RISK MANAGER AND LOSS CONTROL CONSULTANT PARK UNIT Huntington Central Park--west Mark IV Hawes Mark IV Lake View Space Port LeBard Space Port Marina Fire Engine Schroeder Space Ship Seabridge Wood Slide and Ship Wardlow Space Ship Worthy Mark IV 2. PLAYGROUNDS WITH ALL EQUIPMENT REMOVED Central--Edwards No equipment Clegg/Stacey No equipment Tarbox No tot lot 3. PARKS WITH ONE OR MORE PIECES OF PLAY EQUIPMENT REMOVED Arevalos Three areas; two with no equipment Burke Two play areas with one piece of play equipment that needs to be replaced Eader Five areas; one with no equipment Franklin One area with one small piece Glen View Two areas; one with no equipment Harbour View Two areas; one with no equipment Marine View Three areas; one with no equipment Newland Two areas; one with no equipment Pleasant View Two areas; one with no equipment Robinwood Two areas; one with no equipment Seeley Three areas; one with no equipment Talbert Three areas; one with no equipment Terry One area; only arch swing 0028005.01 D�- no ' ATTA....... CHME............... NT #..............-... .. 2 HB CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION TO: RON HAGAN, Director of Community Services FROM: GAIL HUTTON, City Attorney DATE: September 30, 1997 SUBJECT: Follow-up to RLS #96-864 and 97-079; Removal of Unsafe Playground Equipment INDEX: Liability and Litigation/Municipal liability/Public Works/Americans with Disabilities Act Based on further staff discussion and review of the issue presented by the Community Services Department, this memorandum is intended to clarify the opinion dated August 15, 1997. Specifically, there are two potential liability exposures to be considered when modifying an existing city park: Statutory ADA Liability 1. Failure to comply with the American with Disabilities Act upon the alteration of an existing park including remodeling, renovation, rehabilitation, reconstruction, changes, or rearrangement in structural parts or elements triggers statutory ADA liability. Tort Liability: Failure to act upon notice of a dangerous condition of public property 2. Failure to remove dangerous equipment as identified by the Risk Manager. Options A. Take no action Currently, should the city not modify the existing park facility, the current liability exposure remains the same and the ADA liability exposure is negligible. B. Modification of Equipment A modification of an existing park facility may reduce the tort liability exposure, but will increase the ADA exposure. \ G jmp/en/memos/rIs96864/9/30/97 �/ • Page 2 • Ron Hagan RLS 96-864; 97-079 C. Removal of Dangerous Equipment The initial removal of the equipment from the park is less of an exposure under the ADA as the equipment is unavailable for any use (disabled and non-disabled). If however, the removal is considered an "alteration and/or the replacement" of the equipment, then ADA compliance is required. A court might weigh the relative danger versus strict statutory compliance in its ruling. Tort Liability Justification Documentation To establish justification for the City actions and perhaps avoid ADA liability, the city must clearly establish the tort liability exposure by appropriate written documentation to justify the modification to the park such as loss assessment surveys and claims history. Minimal tort liability exposure should not be used to iustifv modifications to a park thereby risking ADA liability exposure. However, should the tort liability exposure be great as determined by the Risk Manager, the removal or replacement of the equipment may justify the ADA liability exposure. Alternatively, the competing liability exposures may justify no action in the park at this time. Al-��z-- GAIL HUTTON City Attorney /en g:\Jenn1fer\memo9\r1s96864.doc ATTACHMENT ` # 3 HB CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION TO: RON HAGAN, Director of Community Services FROM: GAIL HUTTON, City Attorney DATE: August 15, 1997 SUBJECT: RLS 96-864 and 97-079; Removal of Unsafe Playground Equipment INDEX: Liability and Litigation/Municipal liability/General BACKGROUND: The Community Services Commission ("Commission") is working towards establishing a priority list for the removal and replacement of unsafe playground equipment in City' parks. The Community Services Department has suggested wording for signage at the parks inviting the public to participate in the review of the prioritization of the park equipment. In addition, other issues have been raised by the Commission regarding if, and when, playground equipment must be removed or replaced. ISSUE #1: Does the proposed wording of the Community Services Department create potential liability problems for the City? ANSWER: Yes. Although the risk of liability is significantly reduced once the play equipment has been removed, the statements of the City that the equipment is unsafe or does not meet safety guidelines satisfies the actual requirements in establishing a successful tort claim against the City. The balance of the information in the proposed wording requesting the participation of the public does include some liability risk; however, an invitation for participation without the surrounding information would not increase liability exposure. ISSUE #2: How quickly must the City come into compliance with the American with Disabilities Act in the parks? Ron Hagan August 15, 1997 Page 2 ANSWER: As the parks are considered public accommodations, the City is obligated to comply with the Americans with Disabilities Act (ADA) for existing facilities upon any modification or alteration to the primary function of the park. ANALYSIS#2 Under federal law, a park is considered a public accommodation. 42 U.S.C. section 12181(7). The ADA sets forth three (3)types of public accommodation and the standards for compliance. 1. Effective January 26, 1993, all new construction must comply with the ADA. 2. Existing Facilities: Effective January 26, 1992, the City is required to "remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense." Code of Federal Regulations section 36.304. The term, "readily achievable," requires the City to consider a number of factors including, but not limited to, the nature and cost of the action and the overall financial resources of the covered entity and facility or facilities involved. Under Code of Federal Regulations, section 36.402, "any alteration to a place of public accommodation . . . shall be made po as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." Should the City undertake a modification to an existing facility for the sole purpose of barrier removal, this modification does not trigger ADA compliance beyond the scope of the specific alteration. However, an alteration or modification beyond the scope of removal of barriers does trigger ADA compliance for the entire park. 3. Alterations to Existing Facilities: Effective January 26, 1992, any alterations to existing facilities must be accessible. Code of Federal Regulations section 36.402 and ADA Accessibility Guidelines. Normal maintenance is not considered an alteration. An alteration is defined as: "a change to a place of public accommodation or. . . that affects or could affect the usability of the building or facility or any part thereof," including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, changes, or rearrangement in structural parts or elements, and changes or rearrangement in the planned configurations of walls and full height partitions." As the Commission is specifically considering a prioritization for the removal and replacement of unsafe playground equipment, this directly relates to the primary function jmp/klopin ion/playgrou/8/15197 Ron Hagan August 15, 1997 Page 3 of the facility, thereby triggering the requirements of ADA compliance. The City is "responsible to take steps necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services which include, but are not"limited to, the acquisition or modification of equipment or devices. This burden may be alleviated or limited if the City can demonstrate that such steps would fundamentally alter the nature of the services, facilities, privileges, advantages, or accommodations being offered, or would result in undue burden. Unfortunately, because the City is reviewing the existing parks for structural modifications and alterations, it is unlikely that the City will be able to establish an exemption from ADA compliance. Examples of ADA compliance in a newly constructed park can be found in the attached article from the ADA Compliance Guide, dated December 1992. Issue #3: How quickly must the City come into compliance with Consumer Protection Safety Guidelines? Answer#3: Although state law mandates compliance with the Handbook for Public Playground Safety, produced by the United States Consumer Products Safety Commission, existing facilities are only required "to be upgraded by replacement or improvement, as necessarX. to the extent state funds are made available specifically for that purpose through state funds or other means." Analysis #3: The state adopted a minimum standard of care as set forth in the Handbook for Public Playground Safety, produced by the United States Consumer Product Safety Commission. California Health & Safety Code (H.S.C.) section 115725. All new playgrounds must conform immediately. Id. at 115750. The existing facilities shall be upgraded to the extent state funds are made available specifically for that purpose. Id. at 115730. Although, state law does not require the retrofit of the existing facilities prior to the availability of state funds; state law also states that compliance, or lack of compliance, with the Handbook for Public Playground Safety shall not affect the liability or absence of liability of playground operators. Therefore, the Commission should still consider the retrofit in light of the liability exposure of the City of Huntington Beach. CONCLUSION: THE ISSUE OF COMPLIANCE WITH THE ADA SHOULD BE DEALT WITH ON A PARK-BY-PARK BASIS. Regarding the prioritization of the removal and replacement of unsafe playground equipment in city parks, once the City initiates any modification or alteration to an existing facility, the City will be required to review the entire facility for ADA compliance. This clearly indicates that the City may not select certain types of equipment or certain alterations or modifications on a piece-by- jmp/k/opinion/playgrou/8/15197 Ron Hagan August 15, 1997 Page 4 piece basis, but must consider the issue on a park-by-park basis to ensure compliance with the ADA. A thorough analysis of ADA compliance should be completed on a park-by-park basis. Moreover, whether required by state law or not, compliance with the Consumer Protection Safety Guidelines does reduce the liability exposure of the City. Gail Hutton City Attomey GH/pw jmp/Wopinion/playgrou/8/9 5/97 ATT ACHM.....................EN............... T #4 SHORT TERM PLAYGROUND EQUIPMENT REPLACEMENT PROCESS ACTION PLAN The following process was outlined at the Playground Equipment and Park Maintenance Committee of the Community.Services Committee to facilitate addressing the 25 tot lots that exist in the park system that require immediate attention (liability and/or neighborhood demands) in a reasonable amount of time. The goal is to expend the $750,000 budgeted in the next 24 months to meet the short term policy objectives for the 25 highest priority playgrounds of the 84 tot lots that exist in the city. This is a monumental task that will require a special process to expedite in order to facilitate this short term replacement phase of the playground equipment replacement policy within the 24 month time line. OCTOBER • Commission addresses removal of play equipment in nine areas as recommended by the city's Risk Manger and Loss Control Consultant and short and long term policies to address Consumer Products Safety Commission (CPSC) guidelines and Americans with Disabilities Act (ADA). • Staff contacts one or two manufacturers to evaluate the 25 sites and make recommendations for modular play units to fit into four different size tot lot spaces (two alternatives per space). NOVEMBER • Staff works with manufacturer(s) to estimate costs and time line for replacement of the play equipment in the 25 parks. • If manufacturer(s) can complete above work, staff will report to commission on the progress of selecting the modular units for the four different size spaces in the tot lots, and present an overview of anticipated costs and time line (can the project be done in 12 or 24 months?). • Short and long term policies go to City Council along with the proposal to remove playground equipment from nine parks due to the liability. The combined goals for Council approval are the removal of the play equipment and the approval of the overall policy and the short term approach that would satisfy the liability issue and the immediate desires of the residents who have had play equipment removed. • Unsafe playground equipment is removed from nine sites (if approved by Council). 0028041.01 Page two DECEMBER • Staff advertises in newspapers and on Channel 3 as well as sending letters to anyone who has indicated in the past an interest in their playgrounds having new equipment. Letters will be sent to inform the public of the overall proposed course .of action, and that the commission will be making a decision on the specific types of modular units that will be placed in all of the parks at its January meeting. The intent would be to have two types of modular units for each of the sized areas so that commission can make a selection of the number one unit and the secondary unit including any modifications they wish considered after hearing public comments. JANUARY • Conduct public input meeting. FEBRUARY • The recommended modular units would go to bid for as many playgrounds as there is.funding for the first year ($500,000 allocated). NOTE: It is hoped that the short term policy of replacing a piece of play equipment with a new piece rather than addressing the entire ADA or CPSC issues on a park would make it potentially possible to do all 25 playgrounds with this $500,000 allocation. If not, the 24 month program would be implemented and it would require prioritization of all 24 playgrounds by commission. The intent would then be to create two separate groups of playgrounds; first group would receive new equipment this fiscal year, the remaining playgrounds would receive new equipment the second year. MARCH • Complete bid process and order equipment (average 60 days for manufacturer to deliver equipment). MAY • Begin installation of new play equipment. 0028041.01 ATTACHMENT # 5.. ......... M E M O R A N D U M DATE: October 7, 1997 TO: Jim Engle FROM: Karen Foster RE: Playground Equipment Pursuant to the Playground Equipment and Park Maintenance Committee meeting of September 30, 1997, the following is a list of the playground equipment deemed unsafe by the Loss Control Consultant of Insurance Company of the West: 1. Mark IV- The Mark IV manufactured by Miracle does not meet design and installation standards from ASTM/CPSC concerning the height, the use zones, and possible head entrapment. Removal of this apparatus is strongly urged. 2. Space Port- The play apparatus known as the Space Port does not meet current ASTM/CPSC design and installation standards for height of the apparatus and possible head entrapment. Removal of this apparatus is strongly urged. 3. Fire Engine - Fire engine play equipment does not meet current ASTM/CPSC design and installation standards. Of primary concern is the metal walking surface which collects moisture, causing corrosion and eventual failure of the surface, and the spacing of the vertical pieces, representing the grill which could entrap the head of a child. Removal of this apparatus is strongly urged. 4. Space Ship - The rocket ship play apparatus does not meet current ASTM/CPSC standards for height, entrapment of the head, protection of the openings, and also constitutes a hazard to users principally because of the ease .of climbing that is provided on the outside of this apparatus which is not intended. It is strongly urged that this piece of apparatus be removed. 5. Wood Slide and Ship - Wood structures in Seabridge park are old, deteriorating, poorly designed, and contain built-in severe hazards to users. These structures do not meet current ASTM/CPSC design and installation standards. Removal of these structures, including the bridge, is strongly urged. RCA ROUTING SHEET INITIATING DEPARTMENT: COMMUNITY SERVICES SUBJECT: APPROVE REMOVAL AND REPLACEMENT POLICY FOR PARK PLAY EQUIPMENT COUNCIL MEETING DATE: November 17, 1997 .. .............................. .... _....._...... . _. - .......... . A,- CHMEN Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement Unbudget, over $5,000) Not Applicable Bonds If applicable) Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report If applicable) Not Applicable Findings/Conditions for Approval and/or Denial I Not Applicable ..... ........ ........ . ... .. _ ........ .......... _..._ .............................................................................._................................. _...................__...................................................... .............. :.: : .. : . .. .. ............. .. . ._..... ..._.... .......................... ...._.... . .. ......... ........ .......... . REVIEWED RETURNED FORWARDED; ............_.... ......................................... .................._...................................................... _._.............................. .. ........................... ................ . Administrative Staff Assistant City Administrator Initial City Administrator Initial City Clerk ........ . ....... ........ ........ ........ ...... _ _.......... -.............. EXPLANATION FOR RETURN OF ITEM`. Space . Only) RCA Author: