Sidewalks, Ashley Park Phase 7v "f
City of
' Kalispell
Post Ogee Box 1997 - Kalispell. Montana 99 3-1997 - Telephone 758-7 Fax'- ) 758-7758
UPORT TO: Honorable Mayor and City Council
ROM*, James H. afficl l, City Manager
SUBJECT& Defective Sidewalks, Ashley Park Phase
MEETING DATE: September -, 200
BACKGROUND: Somers Land Company entered into a Development Agreement ent datedJune
une
21? 200, with the City of Kalispell relative to a real estate development project known as
"Ashley Park, Phase V11 Subdivision. The City also had subdivision design standards governing
the construction of sidewalks requiring '" of gravel base under the sidewalks. Dun'ng a
construction inspection of infrastructure the City staff noticed sidewalk forms with out any
gravel base. The engineer was contacted and asked what his intentions were and that the base
was not suitable. The contractor.proceeded to pour the sidewalks without any base. Council was
furnished with a picture of this project and a copy is attached. The City then conducted random
borings of the sidewalk to determine the scope of the probe.. In six borings not one had the
required 6" base of � �� minus material. The base /"' pea gravel through 1 / �" lnus) which
was found varied in thickness from 1 " to 4 1/4". The concrete thickness varied from 3 1/" to
' '"'. In this climate the lack of base can cause premature sidewalk failure due to the heaving
caused by freezing and thawing of the ground surface. This lack of base does not comply with
the standards for design and construction applicable to sidewalks constructed within the City or
with the contract agreement entered into by the contractor and the City in Zoo * The contractor
agrees that the sidewalks do not meet the standards for design and eor struction.
The contractor contends that there is vaue in the concrete that has been poured and also points to
MDOT projects that have had less than "' of gravel in the base. His recommendation to Council
would be to .provide are extended warranty on the sidewalks.
RECOMMENDATION .- That the contractor replace the sidewalk in conformance ce to City
standards and his co .tra t developer's agreement with the City.
FISCAL EFFECTS: No immediate effect. However, the sidewalks will fall and crack
prematurely. If no action is taken, the City and property owners will have to replace these
sidewalks s at the expense of the City tax payers and property owners.
ALTERNATIVES: 1 Accept the contractor's offer er of extended warranty.
(2) City withdraw the letter of credit and se existing sidewalk contractor
to replace the sidewalks.
(3) As suggested by the City Council.
Respectfally submitted,
James H. Patrick, City Manager
. ........ .
maim.
homers Land Company, Inc.
1995 Third Avenue F•a
Kalispell, Montana 59901
August 2 , 200
The Honorable Mayor, Darn Kennedy
PO Box 1997
Kalispell, MT 5990
Dear Pam.,
On July 8, 2005, I received a call from valley Bark asking why the City of Kalispell
(Frank Castles, assistant City Engineer), , was threatening to ask the bank for ftm.s issued
y an irrevocable letter of credit to the City of Kalispell. meter receiving a facsimile copy,
from the bank, I directed a call to Frank Castles to discuss the issues, but Castles had
taken the day off. I then called the Public Works director, Jim Hansz. Hansz stated that
he agree. with Castles, and that he was not Willing to discuss the issue. His opinion was
that the sidewalks .i not meet the lty's mir murn standard because the standard asks
that 6115 of crushed gravel or sand be placed or to placing the " concrete sidewalk. I
asked Hansz what the term "block face' meant, but did not got a clear answer in the brief
time Hansz was willing to talk. I ask Ha sz if he realized that the Meridian project that
was bid a few weeks before by the M o , called for 2" of crushed leveling course. His
opinion was that this made no difference.
advised Hansz that it would e difficult for me to obtain satisfaction from the
contractors who placed the sidewalks because they both (Ron Terry and Bob Schweigert
believe that the sidewalks are sound, free o `.cracks or settlement, and consistent with the
standards practiced in Kalispell for many years. I expressed my o lm*on that I also
believed sidewalks were sound, and that they may be off the mark of the Witten standard,
but the standard was arbitrary.
Hansz then stated that they had advised our office before the last sidewalk section was
placed, that the crushed gravel was not adequate and that it was poured anyway, so It was
like we just "gave them the finger". I told HansHansz that this was not the intention,, that
11,00
Castles had e-maileda photo of the, formwork to Andy Hyde m our office between
are : oo P.M, on June 16, but that Andy was not lnvoved in this project. The note on
the c-mailed photo did not advise us to stop construction, but asked if the crushed
aggregate would be placed later or if the forms were deep enough for a leveling course.
it was the next day when Rod Schenck of our office received the photo. He immediately
visited the site, only to find that the concrete had already been placed.
I advised Hansz that the time allotted by Castles letter was not adequate to remove and
replace the sidewalks. He advised me that the letter did not ask that the sidewalks be
removed by July 27, 2005, but that the issue is addressed by that date.
Because I felt strongly that the sidewalks had considerable value as they were. I offered
Ha sz a 1 0-year warranty and some fora of compensation. He said he didn't know if
that would be legal. I offered to call Charles Harball, the City , ttomey, to check the
validity of this offer. Hansz said that be would call Harball as soon as our conversation
was concluded. I told him I would wait 12 hour prior to placing a call to the City
Attorney. o that day and the following days, I placed 5 calls to Charlie Harball, but
none were returned. I can only assume that because he works for the City Manager, he
was advised not to speak to me.
o `address the issue", a letter was drafted, stating that the leveling course may not meet
the Witten standard, but they still .had value and should not be destroyed. The letter is
attached.. A response to this letter was received from the City Manager, demanding that
all of the sidewalks be removed.
The Northwest Kalispell sidewalk project was completed last spring. I believe that here
were about 88 blocks of sidewalk (4-1/2 miles) constructed on this project. It most likely
was the largest sidewalk project ever constructed in the City of Kalispell. Sometime in
early august. a subcontractor on the Northwest Kalispell sidewalk project heard of my
plight and called to advise me that a lesser standard was used by the City on this project.
He stated that the contract was admirilstered and inspected by Hans 's public works staff
and that the leveling course was " to "' placed with the approval of a. s 's staff. I
asked my attorney, Randy Ogle, for er *ss.ion from the City to core these sidewalks s to
determine if this was true.
Two subsequent meetings s followed with my attomey{ Randy ogle, and he relayed to me
that progress was .made. He ad -riled me that Hansz agreed that less than the " might be
acceptable, but any sidewalks with o'~ of leveling course must be removed and replaced.
I asked that he arrange a meeting; to determine what the rules would be and to deterrni e
exactly which sidewalks would have to be removed.
Last week I purchased a new irrevocable letter of credit from valley Bank to extend he
City's security for are additional year. I felt progress was being made,, but that in no case
would there be time to remove and replace the sidewalks in this construction season.. The
contractors that placed the sidewalks s vant no part of removing and replacing them.
Other contractors are very busy. On August 22, 200. I received another call from the
Valley Bark stating that they had again received a letter from Castles threatening to
obtain finds from the Letter of Credit. I was very surpsed that the offer to extend the
security was rejected and there new letter of credit was returned. I was expecting a meeting
for final resolution. A copy of this letter is attached.
There are several issues that concern nee:
Of course, the first is of faimess and a level field. Why do the City employees
believe their standards of construction may be different for projects administered
y them and other govemment agencies than those dictated to the private sector?
What is the standard? Has the standard of construction used on City projects and
other Government projects in the City established a standard different than the
written one.
If BobScveigert Construction and Ron Ferry (contractors who constructed thol
sidewalks) are to be held accountable for their work, I am certain that I can only:
receive satisfaction' through the District Court. This would be very difficult after
the sidewalks have been destroyed and replaced. I Will have to ask the cow to
preserve the sidewalks until the court can offer a remedy between these
contractors and myself They both contend that their sidewalks have beer ;
constructed to the standards used the City for many years. The court can fairly",
y y y.
hear their side and direct proper action. If they are removed before a court
hearing, their plea of adequacy will be moot.
If a court Ends their sidewalks are inadequate, then the cow will also find that the
citizens have been misrepresented on the Northwest project, the Highway 93
project, the Meridian Project, and the many other sidewalks placed under City
contract.
My efforts to this point have been cordial in an effort to mutually resolve the issue before
it reaches a point that is irreversible. It is very important to me, and to many others with
whom I have discussed this issue, that Bob Scwelert, Ron Ferry and I he treated fairly
and that any standards be applied equally. This includes the above -mentioned projects.
ale we have offered that we respect the City's right and obligation to expect
construction standards to he observed and complied with, the City and others have
overlooked this standard for a very long time. Because it is arbitrary, and because it
probably has not been followed carefully by many contractors, isn't it sufficient to accept
a long tern warranty and advise all concerned that compliance with the standard will be
enforced in the future (including the City and M o There surely 's a reasonable
remedy more favorable than the setting outlined above.
Sincerely,
rs Lanai Company
.......... ..
Dennis F. Carver