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5. Sidewalks - Ashley Park SubdivisionCity of Kalispell Charles A. Harball office of City Attorney City Aoy 312 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 MEMORANDUM TO: Mayor Pamela B. Kennedy and Kalispell City Council FROM: Charles Harball, City .Attorney James H. Patrick, City Manager Tel 406.758.7708 Fax 0 .7 .7771 charball@katispell.com SUBJECT"": Substandard Sidewalks in Ashley Park, Phase MEETING DATE: Monday, September 19, 2005 Regular Meeting BACKGROUND: City Council was advised at a workshop on September 6, 2005 that the sidewalks put in place in Ashley Parr, Phase 7, fall to meet the City Design and Construction Standards in that the 6-inch base of gravel under these sidewalks does not exist, nor is the thickness of the concrete slab consistent. Mr. Carver, the developer, addressed Council., adm tted that he is breach in this portion of h1s developer's agreement with the City, and indicated that he was willing to provide the City with an extended warranty on the sidewalks. Although members of Council expressed concern about this breach and generally agreed that the deficit needed to be remedied, some council members also expressed concern about the disruption replacement of the sidewalks s would cause to the portion of the subdivision that is already built out. Staff was directed to provide the council with alternative Motions to be brougbt to Council for its consideration at its next regularly scheduled meeting. RECOMMENDATION: That Council consider the two alternative motions provided staff and to sae and de�ierate o such xotio. as it deems appropriate. FISCAL EFFECTS: This is dependent upon Council action. The City is generally benefited fiscally when it enforces its contracts. Respectfully submitted, Charles 14ar alCity Attorney � mes H. Patrick, City Manager ALTERNATIVE MOTIONS To Address Substandard Sidewalks At Ashley Park, Phase 7 . 1 move that the City Council find, based upon the evidence presented, that a. the sidewalks constructed at Ashley Park, Phase 7, fail to meet the design and construction standards ofthe City of Kalispell and that, b. unless the developer removes and replaces all sidewalks within Ashley 'ark, Phase 7, that fall to meet the design and construction standards of the City, the construction bond, pursuant to the terms of the developer's agreement, shall be called upon by the City to pay for the necessary corrections. 11. I move that the City Council find, based upon the evidence presented, that a. the sidewalks constructed. at Ashley Park, Phase 7,, fail to meet the design and construction standards of the City of Kalispell, and that, b. unless the developer removes and replaces all sidewalks that abut lots without currently completed and occupied residences within Ashley Park, Phase 7 that fail to r. eet the design and construction standards of the City, the construction bond, pursuant to the terns of the developer's agreement, shall be called upon by the City to pay for the necessary corrections, and that C. in order to minimize the impacts on property owners within the subdivision, the City shall allow the developer to grant to the City a 10 year warranty on all sidewalks within Ashley Park, Phase 7, that do abut currently completed and occupied residences, secured by a pre -paid 10 year warranty bond., issued by a company licensed to do business in the State of Montana and valued at 125% of the valve of the sidewalks, with such bond being reduced. by 10% of each year of the warranty, less the value of any replacements required under the warranty, and that d.. said warranty agreement shall include the terms that l . the Public works Department shall have sole discretion as to the removal and replacement of failed panel(s) of sidewalk, and 2. evidence of failure of a sidewalk panel shall be any crack creating two or more separate sections in the sidewalk panel, and . photographic evidence of the cracked sidewalk section shall be taken by the Public Works Department prior to the replacement of the sidewalk panel, and . adjacent sidewalk panels cracked during the replacement shall also be replaced under th.s agreement, and . replacement will be at the unit bid prices received for the Annual City Sidewalk program., NiMO TO THE MAYOR AND CITY COUNCIL: About 2 months ago, the Public Works department engaged an engineering firm to care sidewalks recently placed in new developments throughout the City. As you know, of the 178 cones is Cen, 71 indicated a depth of base gravel less than the written City standard. This is fully 40% of all sidewalks constructed, or almost S miles of sidewalk. The value of the sidewalks not having a fall depth base is about $500,000. Of these 71 cores not meeting the depth, 6 of them are in Ashley Park Phase 7. Obviously, there is a pastern throughout the City, and this is not an isolated case. What is the standard? The published standard at the time of construction required 4" of concrete and 6"' of crushed gravel or 6" of sand. The largest Kalispell sidewalk project constructed in recent history was funded by a grant from the State of Montana and was administered by the Kalispell Public Works Department. These are sidewalks constructed north of Highway 2 and bounded by Highway 93 and Meridian Road. It consisted of over 3 miles of sidewalk. The contract required 60 mm (about 2") of crushed gravel. • The subcontractor for sub grade preparation on this project recently volunteered to me that in many places there is no base gravel, and this was done with the review and approval of the Public Works Department. He reported that approximately 10- 12 tons (one dump truck load) of base gravel was delivered for each block. A simple calculation reveals that the base graved thickness would average I 1/4 17 • It has been staffed that the MDOT required that only 2" of gushed gravel could be placed or the MDOT sands could not be used to construct the project. After consulting with MDOT officials, I found this to be thezr minimum standard, but that the MDOT would readily after the base section t0 6" to meet the City"s standard if requested to do so. Again the standard has been in place for mangy years, but not enforced. At the work session, one of the council members asked What depth of base gravel is specified by the MDOT. The MDOT has only one standard drawing indicating a depth for base gravel. This drawing is numbered 608- 05 and depicts the depth to be 60 mm, or approximately 2". My purpose in. talking about the standards used for the Northwest project and the MDOT standard is not to diminish our responsibility to meet the City's standard, but to establish that these sidewalks in Ashley Park 7, and all of the others recently constructed and not meeting the 6" base gravel standard, still have value. At the last council meeting, the City accepted the construction of a street on the east side of Kalispell in a newly constructed subdivision. The sidewalks in this development were among those cored to determine the thickness of base gravel. 26 of 27 tests conducted in this subdivision failed to meet the standard. This represents about 8000 feet of sidewalk valued at about $1409000. � end the idea of destroying the sidewalks objectionable. The Ashley Park sidewalks represent only about 10% of the sidewalks found to have base gravel of a lesser thickness than that shown on the 1982 standard. These sidewalks are constructed to the same standards as those built for the residents of the northwest Kalispell area. Late in August, an agreement was reached between the City attorney and my counsel. This agreement cabled for removal of part of the sidewalks, and fora 5-dear warranty for the remaining sidewalks. I believed this to be a reasonably and fair compromise. After the weekend, my counsel advised me that although the City attorney was in agreement, the public works department was not. Nay only option was to ask the council for agreement to an alternative to total removal. We honor City's right to enforce construction standards. however, the City and others have overlooked this standard for a very long time. isn't is sufficient to accept an extended warranty and advise all concerned that compliance with the standard will be rigidly enforced in the futare? The idea of a 0-year warranty bond was not discussed at the work session, but apparently was originated by the staff subsequent to the session. In discussions with a bonding agent I find that a 5-year warranty bond may be very difficult to obtain, and that a I 0-year warranty bond is out of the question. Surely there is a more reasonable remedy than to haul the sidewalks to the landfill. Any alternative requiring construction activity will take time to arrange contractor's schedules and to conduct the work. We recently purchased and presented a new izrevocable letter of credit to the public works department extending the time of security, but they returned it, stating that all work had to be completed by October 1, 2005. 1 hope the council will allow us adequate time should you require construction activity. Somers Land Company, Inc. Via Hand D The Hon. Pamela B. Kennedy The Kalispell City Council 312 First Avenue East Kalispell, MT59901-1997 e: Ashler Park, Phase VIII Sidewalks Dear Ms. Kennedy and Kalispell ell City Council: The purpose of this correspondence is to provide to you alternative notions for Council consideration relative to the referenced natter. It is the preference of Somers Land Company, Inc. that Alternative No. I he adopted. The second Al emat ve concerns an agreement tentatively reached sometime ago between counsel for Somers .hand Company, Inc, and Charles Harhall, City Attorney. Alternative No. 1: move that the City Council direct Staff to accept the sidewalks In Ashley ley 'ark, Phase VII contingent upon obtaining from Somers Land Company a ten-year written warranty guaranteeing the structural integnty of the sidewalks wit in Ashley Park, Phase VH Subdivision, which warranty shall he consistent with the standard one -yeas warranty ordinarily b a.ined from developers relative to infrastructure im- vements i subdivisions constructed within the City of Kalispell. Alternative N. 2: I move that the City Council direct Staff to enter into that Agreement attached hereto as Exhibit A and by this reference incorporated herein directing Somers Land Company, Inc. to replace certain portions of the sidewalk within Ashley Park, Phase VII Subdivision as illustrated on the exhibit to said Agreement. Thank you very much for your consideration of the foregoing. S ME S LAND COMPANY, WC. Dennis Carver, President AGREEMENT THIS AGREEMENT is entered into this day of August, 2005 by and between THE CITY of KALISP LL (hereinafter "City"), and SoM RS LAND COMPANY, INC., a Montana business corporation hereinafter "Somers"), , WHEREAS, Somers entered into a Development Agreement dated June 24, 2004 with City relative to that certain real estate development project known as "Ashley Park, Phase V11 Subdivision" located in Kalispell, Montana; and WHEREAS, City alleges that the sidewalks constructed in connection with said project and the parties' development agreement do not comply with the standards for design and construction applicable to sidewalks constructed within the City of Kalispell; and WHEREAS, Somers agrees that the sidewalks do not comport with said standards for design and construction insofar as the crushed gravel base upon which such sidewalks are constructed is not uniformly six inches in depth; and W AS, Somers contends that said standards for design and construction have largely been ignored by contractors and the City in relation to the design and construction of sidewalks for many years; and WHEREAS, Somers contends that the sidewalks constructed in Ashley Park, Phase VH Subdivision are of high quality and .have considerable value; and WSAS, City heretofore required Somers to remove and replace the sidewalks in Ashley Park, Phase Vff Subdivision based on allegations of deficiencies after a review of care samples of the sidewalks conducted by CMG Engineering, Inc. of Kalispell, Montana.; and WHEREAS, the parties have entered into a compromise, se, hich essentially requires Somers to provide afive- year (as opposed to one year) warranty with respect to the sidewalks in Ashley Park, Phase V11 Subdivision and to remove and replace certain portions of the sidewalk system contained in said Subdivision, all as hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing recitals, and in further consideration of the mutual covenants, terms and conditions hereinafter er set forth, the parties agree as follows: Somers hereby extends to City, a five-year warranty (as opposed to a one-year warranty as contained in the parties' development agreement) relative to the sidewalks contained in Ashley Park, Phase V11 Subdivision. 2. Somers shall not be required to remove and replace any portion of the sidewalk in Ashley Park, Phase VII Subdivision depicted by yellow highlighting on Exhibit A attached hereto and by this reference incorporated herein. Said portions of the sidewalk contained in said Subdivision not required to be removed and replaced are located in the block faces associated with CMG Engineering, Inc.'s core sample numbers 1, 3, 4 and 5. A copy of the results of CMG Engineering, Inc,'s core samples are attached hereto as Exhibit B and by this reference incorporated herein, 3. Somers shall be obligated to remove and replace portions of the sidewalk depicted on Exhibit A. attached hereto and indicated in pink highlighting to the extent the portions of said sidewalks s as cored do not reveal a base material thickness of at least two inches. In this regard, the portions of the sidewalk referenced in this correspond to CMG Engineering, Inc."s core sample numbers 2 and 6. Somers shall be given the Page t of 2 opportunity to obtain additional core samples relative to the sidewalk block faces depicted by pink highlighting on Exhibit A. which relate to core sample numbers 2 and 6 in order to ascertain portions of said block faces which do not require the removal and replacement of portions of the sidewalks located therein with base material thicknesses of at least two inches (2" . In this regard, Somers shall obtain core samples, y and through CMG Engineering, Inc., north and south of core sample 2 depicted on Exhibit A., and cast and west of core sample 6 depicted on Exhibit A. Somers shall not he required to replace any portion of the sidewalk north of a new core sample taken north of core sample 2 that reveals at least two inches 2" of base material thickness. Somers shall not be required to replace any portion of the sidewalk adjacent to Lots 25 and 26 depicted on Exhibit A south of a new care sample taken south of core sample 2 that reveals at least two inches 2" of base material thickness. Somers shall not be required to replace any portion of the sidewalk west of a new core sample taken west of core sample 6 that reveals at least two inches (2") of base matenal thickness. Somers shall not he required to replace any portion of the sidewalk east of a new core sample taken east of core sample 6 that reveals at least two inches (2") of base material thickness. . The results of CMG Engineering, Inc.'s additional core samples taken pursuant to T 3 hereof shall he made available to the City. . City agrees to extend the letter of credit pertinent to the Ashley Park, phase VII Subdivision Development Agreement until June 30, 20 6, which letter of credit shall he in the amount ofTWENTY-SIX THOUSAND RE HNI RETWENTY-FIVE AND N l o ,f LLARS($26,325.00). All remaining improvr ent.s associated with the Development Agreement, including the removal and replacement ofsidewalks referenced in T 3 hereof, shall be completed by June 30, 2006. N WITNESS WHEREOF the parties have executed this A geernent the day and year first above written. THE CITY OF KAISPELL M Authorized Agent Page 2 of 2 SMES LAND COMPANY, INC. 0 Dennis Carver its President V , / 16 LOT 13 LOT 14 LOT 15LOT LOT 17 ' LOT 12 LOT 11 LOT 18 SCALE: = s o° s E § LOT 27 LOT 23 E LOT 10 I LOT 19 ........... LOT 9 LOT 28 LOT 24 LOT 20 l _- - -_ f' 1 �c� 0 EEC \ LOT 8 I LOT 29 LOT 25� F LOT 21 { \' LOT 7 LOT 30 LOT 26 d LOT 22 6A . MERGANSER DRIVE ' 6B \ `• 5A I \' ,\ s 5 B 4A 4B 3 A 3B 2A 2B 1 A 1 B