Cook County is embroiled in a complicated civil court proceeding regarding the ice hockey rink at the Cook County Community Center. The county board agreed to proceed with legal action against K. Johnson Construction of Sauk Rapids, Minnesota in June 2016 to seek repair of the ice rink, which is “scaling and flaking.” The county alleges the flaws in the outdoor ice rink slab are because of defective construction by K. Johnson Construction.
Wrangling over the condition of the ice rink began on October 7, 2014, when County Attorney Molly Hicken sent a letter to K. Johnson Construction, along with an evaluation of the defective ice rink slab by JLG Architects, requesting that the company replace the concrete slab no later than June 15, 2015.
Hicken cited a report from American Engineering Testing, Inc. (AET) dated October 3, 2013 that indicated that the overall quality of the concrete poured by K. Johnson Construction was “fair to poor, due primarily to the lack of an effective entrained air void system.”
Hicken wrote, “This is unacceptable to the county because it will lead to premature deterioration of the slab among other problems.”
Hicken told the company that if it did not respond by October 17, 2014, the county would proceed with litigation.
K. Johnson replied to the county and to its construction management company
ORB Management’s Wade Cole by that deadline, with a refusal to replace the ice rink slab under warranty. At that time K. Johnson Construction Vice President Anthony Vorderbruggen appeared to place the blame for the faulty ice rink construction on Braun Intertec for not sampling the concrete at the point of placement. Vorderbruggen said if Braun had conducted that testing, adjustments could have been made to the mix during placement.
As this discussion was under way, the county continued to seek resolution. County Attorney Molly Hicken sent a letter requesting mediation with K. Johnson on November 2014.
K. Johnson Construction alleges that it requested, but was not allowed, to “test” a proposed repair option “numerous times,” beginning in September 2015. In court documents, K. Johnson Construction’s attorney Julie Benfield, of Reyelts Law Firm of Duluth, claims the county refused to allow K. Johnson to conduct testing. Benfield claims that the county’s refusal to let K. Johnson conduct test repairs “effectively obstructs K. Johnson Construction from fully investigating the claims against them.”
However, in a June 7, 2016 memorandum in reply to K. Johnson Construction’s claim that the county refused to let it conduct testing, the county’s attorney Stephanie Ball of Fryberger, Buchanan, Smith & Frederick, said the county did not refuse the testing, it refused a settlement proposal.
Ball wrote that the county made arrangements for an inspection of the rink by all parties on August 10, 2015. Following that inspection, the county hoped to enter mediation on September 22, 2015 to find a resolution. That mediation did not occur, because, according to Ball’s memorandum, K. Johnson Construction claimed that the problem with the ice rink was superficial. K. Johnson Construction’s representative suggested conducting a chain dragging test, which consisted of dragging a chain over the top surface of the rink. Ball’s memorandum notes that this type of test would only provide guidance as to the surface of the rink, not the actual integrity of the slab.
According to the county’s memorandum, K. Johnson Construction proposed a settlement with the county that would allow the company to “top” the flawed ice rink with test panels. K. Johnson’s attorney Benfield wrote that to test to see if the flawed ice rink could be repaired, K. Johnson would test four saw-cut panels by mechanically removing the top 1/8th inch mortar layer of the slab; flattening the scarified areas by diamond-grinding the surface; installing siloxane sealer over the prepared areas; and removing joint fill and installing new joint fill pursuant to original specifications. Benfield said this testing would take five days and would be done at no cost to the county
Braun Intertec encouraged the county to conduct additional testing before it made its decision regarding K. Johnson Construction’s claim that the problem with the ice rink slab was superficial.
The county agreed and Braun Intertec performed additional testing, taking 10 core samples from the ice rink and conducting petrographic evaluation, hardened air content analysis and other tests. Braun Intertec summarized its conclusions in a January 15, 2016 report stating that the “nature and degree of the problems with the ice rink is significant and troubling.”
Based on that report and previous studies of the slab, the county rejected K. Johnson’s settlement proposal to “top” the ice rink slab with test panels.
Ball added that when the county declined permission for K. Johnson Construction to access the ice rink, it was because the company proposed the process as part of a settlement; as “repairs.” Ball wrote that when K. Johnson subsequently requested access for the purpose of testing, the county agreed under certain conditions.
Because the proposed testing involves destruction of the top layer of the ice rink slab, the county asked that K. Johnson Construction have a testing plan; that all parties examine and photograph the area to be tested; that all parties be allowed to be present during testing; that the testing be videotaped; that test results be made available to all parties; and other parties have the right to take additional samples for similar testing, if materials are available.
Therefore, Ball said K. Johnson Construction’s motion to compel the county to grant access for the testing should be denied because the county had already granted that access under the conditions listed.
Third parties also in court
Further complicating the case is the number of “third parties” also named in the lawsuit—ORB Management, Edwin E. Thoreson, Inc., Arrowhead Concrete Works, Inc., E-Con Placer Concrete Pumping, Braun Intertec and JLG Architects. A defendant in a civil action—in this case, K. Johnson Construction—names a third party in a lawsuit because that party could ultimately be liable for all, or part of, the damages that may be awarded to the plaintiff.
On August 4, 2015, Judge Michael Cuzzo signed an order in which K. Johnson Construction dismissed ORB Management as a “third party” to the lawsuit “without prejudice and without costs of fees to any party.” On January 14, 2016, JLG Architects was also dismissed as a third party.
In the meantime, at least one of the other companies named as a third party to the lawsuit has initiated its own legal action. In a July 7, 2016 brief explaining why his client, Arrowhead Concrete, should not be a third party to the lawsuit, Michael Orman said Mesabi Masonry— which is not a third party in the law suit—not K. Johnson Construction, provided the mix specifications to Arrowhead Concrete. Orman said Arrowhead Concrete was not working for K. Johnson Construction, so K. Johnson Construction has no basis for a claim against Arrowhead Concrete. Orman said if Mesabi Masonry provided incorrect ready-mix specifications to Arrowhead, this would be a “breach of its duty to Arrowhead.” Orman said that makes Mesabi Masonry responsible, not Arrowhead Concrete.
On to court
On June 21, 2016, the Cook County Board of Commissioners closed its meeting to discuss potential litigation with K. Johnson Construction over the faulty concrete at the community center hockey rink. When the meeting was reopened, a unanimous motion passed to decline a proposed settlement from K. Johnson Construction.
Cook County vs. K. Johnson Construction is scheduled for jury trial on January 30 to February 3, 2017. Court documents show that the county is asking the court to order K. Johnson to remedy its defective work by demolition and replacement of the ice rink slab and for reimbursement of damages to the county in excess of $50,000. Cook County is also seeking reimbursement of its legal fees.
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