Carver to Council/Phase 7 SidewalksSomers Land Company, Inc.
RECEIVED
September 19, 2005 ;
LI, Z L
Via Hand Delivery
The Hon. Pamela B. Kennedy
The Kalispell City Council
312 First Avenue East
Kalispell, MT 59901--1997
Re: Ashley Park, Phase VII Sidewalks
Dear Ms. Kennedy and Kalispell City Council:
The purpose ofthis correspondence is to provide to you alternative motions for Council consideration
relative to the referenced matter. It is the preference of Somers Land Company, Inc. that Alternative No.
1 be adopted. The second Alternative concerns an agreement tentatively reached sometime ago between
counsel for Somers Land Company, Inc. and Charles Harball, City Attorney.
Alternative No. 1:
I move that the City Council direct Staff to accept the sidewalks in Ashley Park, Phase VII contingent
upon obtaining from Somers Land Company a ten-year written warranty guaranteeing the structural integrity
of the sidewalks within Ashley Park, Phase V 11 Subdivision, which warranty shall be consistent with the
standard one-year warranty ordinarily obtained from developers relative to infrastructure improvements in
subdivisions constructed within the City of Kalispell.
Alternative No. 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.
SOMERS LAND COMPANY, INC.
r
r
By.
Dennis Carver, President
AGREEMENT
THIS AGREEMENT is entered into this day of August, 2005 by and between THE CITY of
KALISPELL (hereinafter "City"), and SOMERS 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 VII Subdivision" located in Kalispell,
Montana; and
WHEREAS, City alleges that the sidewalks constructed in connection with said project and th parties'
development agreement do not comply with the standards for design and construction applicable to s ewalks
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
WHEREAS, Somers contends that said standards for design and construction have largely been ignbred 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 VII Subdivision are of
high quality and have considerable value; and
WHEREAS, City heretofore required Somers to remove and replace the sidewalks in Ashley Park, Phase
VII Subdivision based on allegations of deficiencies after a review of core samples of the sidewalks conducted by
CMG Engineering, Inc. of Kalispell, Montana; and
WHEREAS, the parties have entered into a compromise, which essentially requires Somers to provide a five-
year (as opposed to one year) warranty with respect to the sidewalks in Ashley Park, Phase VII 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 set forth, the parties agree as follows:
I . 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 VII 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 I, 31 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 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
3 correspond to CMG Engineering, Inc.'s core sample numbers 2 and 6. Somers shall be given the
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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,
by and through CMG Engineering, Inc., north and south of core sample 2 depicted on Exhibit A, and east
and west of core sample 6 depicted on Exhibit A. Somers shall not be 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 core 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
material thickness. Somers shall not be 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.
4. The results of CMG Engineering, Inc.'s additional core samples taken pursuant to 13 hereof shall be made
available to the City.
5. City agrees to extend the letter of credit pertinent to the Ashley Park, Phase VII Subdivision Development
Agreement until June 30, 2006, which letter of credit shall be in the amount of TWENTY-SIX THOUSAND
THREE HLTNDRED TWENTY-FIVE AND NO1100 DOLLARS ($26,325-00). All remaining improvements
associated with the Development Agreement, including the removal and replacement of sidewalks referenced
in T 3 hereof, shall be completed by June 30, 2006.
IN WITNESS WHEREOF the parties have executed this Agreement the day and year first above written.
THE CITY OF KALISPELL
Authorized Agent
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SOMER.S LAND COMPANY, INC.
MD
Dennis Carver
its President
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