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Carver to Mayor 8/23/05,homers Land Company, Inc. 1995 Third Avenue Fast Kalispell, Montana 59901 August 23, 2005 The Honorable Mayor, Pam Kennedy PO Box 1997 Kalispell, MT 59903 Dear Pam, On July 8, 2005, I received a call from Valley Bank asking why the City of Kalispell (Frank Castles, assistant City Engineer), was threatening to ask the bank for funds issue by an irrevocable letter of credit to the City of Kalispell. After receiving a facsimile copy, from the bank, I directed a Gall 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 agreed with Castles, and that he was not willing to discuss the issue. His opinion was that the sidewalks did not meet the City's minimum standard because the standard asks that 6" of crushed gravel or sand be placed prior to placing the 4" concrete sidewalk. I asked Hansz what the term "block face" meant, but did not get a clear answer in the brief time Hansz was willing to talk. I ask Hansz if he realized that the Meridian project that was bid a few weeks before by the MDOT, called for 2" of crushed leveling course. His opinion was that this made no difference. I advised Hansz that it would be 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 of _cracks or settlement, and consistent with the standards practiced in Kalispell for many years. I expressed my opinion that I also believed sidewalks were sound, and that they may be off the mark of the written 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 Hansz that this was not the intention, that Castles had e-mailed a photo of the formwork to Andy Hyde in our office between 3:00 and 4:00 P.M. on June 15, but that Andy was not involved in this project. The note on the e-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 Hansz a 10-year warranty and some form of compensation. He said he didn't know if that would be legal. I offered to call Charles Harball, the City Attorney, to check the validity of this offer. Hansz said that he 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. On 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. To "address the issue", a letter was drafted, stating that the leveling course may not meet the written 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 there 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 administered and inspected by Hansz's public works staff and that the leveling course was 0" to 2" placed with the approval of Hansz's staff. I asked my attorney, Randy Ogle, for permission from the City to core these sidewalks to determine if this was true. Two subsequent meetings followed with my attorney, Randy Ogle, and he relayed to me that progress was made. He advised me that Hansz agreed that less than the 6" might be acceptable, but any sidewalks with 0" of leveling course must be removed and replaced. I asked that he arrange a meeting to determine what the rules would be and to determine exactly which sidewalks would have to be removed. Last week I purchased a new irrevocable letter of credit from Valley Bank to extend the City's security for an 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 want no part of removing and replacing them. Other contractors are very busy. On August 22, 2005, I received another call from the Valley Bank stating that they had again received a letter from Castles threatening to obtain funds from the Letter of Credit. I was very surprised that the offer to extend the security was rejected and the 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 me: Of course, the first is of fairness and a level field. why do the City employees believe their standards of construction may be different for projects administered by them and other government 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 Bob Schweigert Construction and Ron Terry (contractors who constructed th� 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 court to preserve the sidewalks until the court can offer a remedy between these contractors and myself. They both contend that their sidewalks have been constructed to the standards used by the City for many years. The court can fairly 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 court 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 Schweigert, Ron Terry and I be treated fairly and that any standards be applied equally. This includes the above -mentioned projects. While we have offered that we respect the City's right and obligation to expect construction standards to be 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 term warranty and advise all concerned that compliance with the standard will be enforced in the future (including the City and MDOT)? There surely is a reasonable remedy more favorable than the setting outlined above. Sincerely, rs Land Company ._... Dennis F . Carver •- .__ ..