HomeMy WebLinkAboutA015 - Letter dated February 7, 1990 regarding defective sanitary sewer 017
CITY OF AMES , ' IOWA 50010
ALL-AMERICJA CITY
1982-1983 s
February 7, 1990
c,
The Honorable Larry R. Curtis, Mayor
and Members of the City Council
of the City of Ames, Iowa
Re: Defective Sanitary Sewer - SA
Qneb_ooke Second ,Add t�
Dear Mayor Curtis and Council Members:
On the agenda for your meeting of February 13, 1990, is a resolution to
rescind the acceptance of the sanitary sewer for Stonebrooke Second Addi-
tion and to authorize litigation for declaratory judgment to establish
liability for the cost of further inspection and repair of defects that
have been discovered in the sewer system.
The sewer lines in question are defective in that the "laterals" off the
main, that is, the service lines to the lots, were connected to the main by
means of hand sawing a roughly rectangular opening into the main line. The
City Code, Section 21.7, requires a round, smooth, machine drilled hole and
specifically states that: "no hand methods are allowed". Nevertheless,
the City Inspector allowed holes, sawed by hand.
The Stonebrooke II sewer work was done between November of 1987 and Febru-
ary 2, 1988. It was not the subject of any written agreement. The work
was done and then offered to the City. The City inspected the work and the
City Council accepted the installed sewer system by resolution on February
2, 1988.
The final plat of Stonebrooke II was filed by E.A. Hunziker and Frank W.
Allen, as Stonebrooke Partners, on July 13, 1988.
In September of 1988, defects in the work were discovered by the City
Public Works Department. The problem is that the saddle type connection
fitting is round, to match a round hole, and therefore the corners of the
rough, rectangular holes sometimes are not covered by the connector. As a
result, sewage leaks out. Eventually the leaks may erode away a cavity
around the connection and cause the connections to lose support to such
extent that it will break off.
On June 29th, Paul Wiegand, Jerry Byg and Harris Seidel met with Bill Allen
and demanded that the developers repair the defects. Mr. Allen took the
position that the developers had no responsibility because the City had
inspected the installation and accepted it.
On December 28, 1989, a written demand was made on the plumber who did the
work, Gerald E. Smith, .of '2127 Coneflower. Notice of the problem was also
given to the bond company that wrote the bond for the plumber' s license.
The plumber replied through his attorney that he refused to accept liabili—
ty despite the obvious Code violation because the City Plumbing Inspector
inspected and approved the work. The plumber' s attorney suggested that the
City look to the general contractor on the sewer project which was
Construct, Inc.
The City staff has brought this matter to me to evaluate what legal action
the City can take to establish the liability of some party or parties other
than the City for the necessary inspection and repair of this installation.
The City can be held liable for the damages that result from a negligent or ,
willful failure by an inspector to enforce an existing regulation. The
complicity of the City Inspector would have prevented the City from effec-
tively prosecuting the violation. (A moot point, since the one year
statute of limitations on the municipal infraction expired in December of
1988 or January of 1989. )
However, it may be that the developers, contractors, and plumbers, are
civilly liable to the City to cover the costs of inspection and repair, or
to contribute towards any liability that the City may experience as a
result of damage caused by the defect. The Council .may wi-sh to authorize
litigation by the City against Erb Hunziker, Bill Allen, ConStruct, Inc. ,
and Gerald E: Smith, for the purpose of establishing responsibility and
liability for inspection and repair of this sewer installation. As to the
effect . of the city "acceptance" of this work, there is room for legal
argument. To have waived its rights, the City's acceptance must be under
circumstances such that the defects were known or should have been known to
the .accepting authority. Osceola v. Giellefald Const. Co. , 225 Iowa 215,
279 NW 590 (1938). It has been held that a city will not be denied
recourse for defective work on a public improvement merely because
inspectors were present when defective work was done. Ryan v. Bay City,
160 Mich. 559, 125 NW 398 (1910).
Respectfully submitted,
John R. Klaus
/`City Attorney
5th & Kellogg
Ames, Iowa 50010
(515) 239-5146
JRK:gmw
cc: Bob Kindred
Paul Wiegand
Jerry Byg
Harris Seidel
Erb Hunziker
Bill Allen
Greg Steensland