B-165537, DEC. 2, 1968

B-165537: Dec 2, 1968

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WHICH WAS DRAWN PAYABLE TO YOU AND ERNA M. IF FAVORABLE CONSIDERATION IS NOT GIVEN. DA-25-066-ENG-12819 WAS ENTERED INTO ON JULY 8. 3/4 BATH IN THE BASEMENT WITH THREE (3) BEDROOMS UP AND TWO (2) ROOMS IN BASEMENT WHICH ARE ALSO SLEEPING QUARTERS. THE PERIOD OF THE LEASE FOR THE PREMISES AND THEIR APPURTENANCES WAS FROM AUGUST 21. THE GOVERNMENT SHALL HAVE THE RIGHT AND PRIVILEGE OF MAKING A CASH SETTLEMENT WITH THE LESSOR "IN LIEU OF PERFORMANCE OF ITS OBLIGATION. THE ABOVE LEASE INFORMATION IS ALSO INCLUDED IN ITEMS A THROUGH C OF THE REPORT OF CLAIMS OFFICER DATED DECEMBER 15. LESSOR REQUESTED THAT THE LEASE BE AMENDED TO INCLUDE A PORTABLE BAR AND FIRE PLACE SCREEN WITH ACCESSORIES WHICH WERE LEFT IN THE BASEMENT OF THE DWELLING WHEN IT WAS VACATED BY LESSOR'S FAMILY (EXHIBIT E).

B-165537, DEC. 2, 1968

TO MR. THOMAS P. KRAUSE:

SENATOR GORDON ALLOTT OF COLORADO HAS REFERRED TO THIS OFFICE A COPY OF YOUR LETTER OF OCTOBER 1, 1968, TO HIM TOGETHER WITH COPIES OF ATTACHED CORRESPONDENCE AND A CHECK IN THE AMOUNT OF $574.48, WHICH WAS DRAWN PAYABLE TO YOU AND ERNA M. KRAUSE IN FULL AND FINAL SETTLEMENT IN LIEU OF RESTORATION OF PREMISES UNDER LEASE NO. DA-25-066-ENG 12819.

YOUR LETTER IN EFFECT REQUESTS REVIEW OF THE MATTER AND, IF FAVORABLE CONSIDERATION IS NOT GIVEN, REQUESTS THAT THE CHECK BE WITHDRAWN AND RETAINED, AND THAT YOUR ORIGINAL LETTER COMPLETE WITH ATTACHMENTS AND EXHIBITS BE RETURNED TO YOU.

LEASE NO. DA-25-066-ENG-12819 WAS ENTERED INTO ON JULY 8, 1964, BETWEEN THOMAS P. KRAUSE AND ERNA M. KRAUSE, OWNERS, AND THE UNITED STATES OF AMERICA FOR A "ONE-STORY BRICK DWELLING WITH ONE FULL BATH UP, 3/4 BATH IN THE BASEMENT WITH THREE (3) BEDROOMS UP AND TWO (2) ROOMS IN BASEMENT WHICH ARE ALSO SLEEPING QUARTERS, CONTAINING APPROXIMATELY 1,211 SQUARE FEET OF FLOOR SPACE, EXCLUSIVE OF THE ATTACHED GARAGE AND THE BASEMENT, LOCATED AT 204 SOUTH CIRCLE DRIVE, COLORADO SPRINGS, EL PASO COUNTY, COLORADO" TO BE USED FOR FAMILY HOUSING.

THE PERIOD OF THE LEASE FOR THE PREMISES AND THEIR APPURTENANCES WAS FROM AUGUST 21, 1964, THROUGH JUNE 30, 1965, TO REMAIN IN FORCE FROM YEAR TO YEAR UNTIL JULY 31, 1974, AT A RENTAL OF $130 MONTHLY. SUPPLEMENTAL AGREEMENT NO. 1 DATED APRIL 1, 1965, PROVIDED FOR RENTAL AT $130 PER MONTH THROUGH MARCH 31, 1965, $110 THROUGH APRIL 30, 1965, AND $125 PER MONTH THEREAFTER. THE GOVERNMENT COULD TERMINATE THE LEASE UPON THIRTY DAYS' NOTICE UNDER PARAGRAPH 12 OF THE LEASE AND UNDER PARAGRAPH 18, THE LESSOR ON OR AFTER JULY 31, 1965, COULD TERMINATE THE LEASE BY GIVING NINETY DAYS' NOTICE IN WRITING.

PARAGRAPH 7 OF THE LEASE PROVIDES THAT THE GOVERNMENT SHALL SURRENDER POSSESSION OF THE PREMISES UPON EXPIRATION OR TERMINATION OF THE LEASE, AND, IF REQUIRED BY THE LESSOR, TO RETURN THE PREMISES WITHIN THIRTY DAYS OR SUCH TIME AS MUTUALLY AGREED UPON, IN AS GOOD CONDITION AS THAT EXISTING AT THE TIME OF ENTERING INTO THE LEASE, REASONABLE WEAR AND TEAR AND DAMAGES BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL EXCEPTED. THE PARAGRAPH ALSO PROVIDES THAT IF THE LESSOR REQUIRES THE RETURN OF THE PREMISES IN SUCH CONDITION, HE SHALL GIVE WRITTEN NOTICE TO THE GOVERNMENT AT LEAST 20 DAYS BEFORE THE EXPIRATION OR TERMINATION OF THE LEASE. IT FURTHER PROVIDES THAT IF THE LESSOR GIVES SUCH NOTICE WITHIN THE REQUIRED TIME, THE GOVERNMENT SHALL HAVE THE RIGHT AND PRIVILEGE OF MAKING A CASH SETTLEMENT WITH THE LESSOR "IN LIEU OF PERFORMANCE OF ITS OBLIGATION, IF ANY, TO RESTORE THE REAL ESTATE, PERSONAL PROPERTY (IF ANY BE DEMISED HEREIN), OR BOTH REAL AND PERSONAL PROPERTY.' IT FURTHER PROVIDES THAT "SHOULD A MUTUALLY ACCEPTABLE SETTLEMENT BE MADE HEREUNDER, THE PARTIES SHALL ENTER INTO A SUPPLEMENTAL AGREEMENT HERETO EFFECTUATING SUCH SETTLEMENT.'

PARAGRAPH 11 OF THE LEASE PROVIDES:

"AS OF THE COMMENCEMENT DATE OF THIS LEASE, A JOINT INVENTORY AND CONDITION REPORT OF ALL PERSONAL PROPERTY OF THE LESSOR INCLUDED IN THIS LEASE, AND ALSO A JOINT PHYSICAL SURVEY AND INSPECTION REPORT OF THE DEMISED PREMISES SHALL BE MADE, SAID REPORTS TO REFLECT THE THEN PRESENT CONDITION, AND TO BE SIGNED ON BEHALF OF THE PARTIES HERETO.'

PARAGRAPH 6 OF THE LEASE PROVIDES:

"THE LESSOR SHALL FURNISH TO THE GOVERNMENT, AS PART OF THE RENTAL CONSIDERATION, THE OLLOWING:

"ONE 4-BURNER RANGE WITH OVEN.

"REFRIGERATOR, 11 CU. FT. CAPACITY.

"PERIODIC REDECORATION, AT LEAST ONCE EVERY 3 YEARS.'

PARAGRAPH 9 OF THE LEASE PROVIDES:

"THE LESSOR SHALL MAINTAIN THE SAID PREMISES AND PROPERTY IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THIS LEASE, EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES. FOR THE PURPOSE OF SO MAINTAINING THE PREMISES AND PROPERTY, THE LESSOR MAY, AT REASONABLE TIMES APPROVED BY THE OFFICER IN CHARGE, ENTER AND INSPECT THE PREMISES AND PROPERTY, AND MAKE ANY NECESSARY REPAIRS THERETO. SAID MAINTENANCE TO INCLUDE SPECIFICALLY THE WIRING, HEATING PLANT, PLUMBING, HOT WATER HEATER, STOVE AND REFRIGERATOR, LESSOR RESPONSIBILITIES: LANDSCAPING, FERTILIZING, SEEDING AND SODDING. GOVERNMENT RESPONSIBILITIES: IRRIGATING, MOWING, RAKING, POLICING AND DISPOSING OF DEBRIS (TO BE ACCOMPLISHED BY THE FAMILY HOUSING OCCUPANT) AND FURNISHING OF NECESSARY TOOLS AND EQUIPMENT FOR SUCH GOVERNMENT RESPONSIBILITIES.'

PARAGRAPH 21 OF THE LEASE PROVIDES:

"OTHER ALTERATIONS OR REPAIRS TO BE ACCOMPLISHED PRIOR TO EFFECTIVE DATE: REPAIR FRONT SCREEN DOOR.'

THE ABOVE LEASE INFORMATION IS ALSO INCLUDED IN ITEMS A THROUGH C OF THE REPORT OF CLAIMS OFFICER DATED DECEMBER 15, 1967.

THAT REPORT CONTINUES:

"D. BY AN UNDATED LETTER (OCTOBER 1964), LESSOR REQUESTED THAT THE LEASE BE AMENDED TO INCLUDE A PORTABLE BAR AND FIRE PLACE SCREEN WITH ACCESSORIES WHICH WERE LEFT IN THE BASEMENT OF THE DWELLING WHEN IT WAS VACATED BY LESSOR'S FAMILY (EXHIBIT E). PHYSICAL INSPECTION MADE ON 2 NOVEMBER 1964 VERIFIED THAT A PORTABLE BAR AND FIRE SCREEN SET WERE ON THE PREMISES (EXHIBIT F). LESSOR MADE FURTHER INQUIRY CONCERNING THE MATTER OF 4 JANUARY 1965 (EXHIBIT G) AND REPLY WAS MADE ON 9 FEBRUARY 1965 (EXHIBIT H) THAT THE PORTABLE BAR AND FIREPLACE SCREEN SET WOULD BE SHOWN AS PART OF THE CONDITION SURVEY. HOWEVER, THERE IS NO RECORD THAT CONDITION SURVEYS OR REPORTS WERE MADE AS CONTEMPLATED BY CONDITION NO. 11.

"E. LEASE (CONDITION NO. 19) DESIGNATED LAWRENCE KIEKEN, 3001 EAST HIGHWAY 24, COLORADO SPRINGS, COLORADO, AS LESSOR'S REPRESENTATIVE FOR MAINTENANCE. LETTER TO LESSOR ON 9 NOVEMBER 1965 REQUESTED ANOTHER REPRESENTATIVE BE DESIGNATED AS MR. KIEKEN APPARENTLY HAD MOVED (EXHIBIT I). REPLY ON 22 NOVEMBER 1965 DID NOT DESIGNATE ANOTHER REPRESENTATIVE BUT LESSOR INQUIRED AS TO THE PERIOD OF ADVANCE NOTICE REQUIRED TO TERMINATE THE LEASE (EXHIBIT J). HE WAS INFORMED THAT 90 DAYS NOTICE WAS REQUIRED (EXHIBIT K). IN AN UNDATED LETTER (RECEIVED 27 SEPTEMBER 1965) LESSOR DESIGNATED FRANK F. THOMAS (A/K/A FREDERICK F. THOMAS), 2733 GOMER AVE., COLORADO SPRINGS, COLORADO, AS HIS NEW REPRESENTATIVE FOR MAINTENANCE (EXHIBIT L). AND BY LETTER OF 14 MARCH 1966 LESSOR REQUESTED LEASE BE CANCELLED EFFECTIVE 1200 HOURS ON 1 SEPTEMBER 1966 (EXHIBIT M). GOVERNMENT REPLY ON 25 MARCH 1966 ADVISED THAT THE LEASE WOULD BE CANCELLED EFFECTIVE 31 AUGUST 1966 AND POSSESSION RETURNED ON 1 SEPTEMBER 1966 (EXHIBIT N). THIS UNDERSTANDING WAS CONFIRMED BY SUBSEQUENT EXCHANGE OF LETTERS (EXHIBITS O AND P).

"F. GOVERNMENT OCCUPANT DURING PERIOD 21 AUGUST 1964 THROUGH 8 AUGUST 1966 WAS JOHN C. HUGHES, MAJOR, USAF, AND HIS FAMILY. PROPERTY WAS VACANT DURING BALANCE OF LEASE TERM. THE HUGHES FAMILY CONSISTED OF THE PARENTS AND SIX CHILDREN. REPORT OF SURVEY WAS MADE FOR THE AIR FORCE BY 1ST LT. JOHN A. PRICE, ENT AIR FORCE BASE, AND COPY OF THE REPORT WITHOUT EXHIBITS HAS BEEN OBTAINED (EXHIBIT U). REPORT OF SURVEY APPROVAL RELIEVED MAJOR HUGHES OF ALL PECUNIARY LIABILITY UNDER HIS OCCUPANCY AGREEMENT.

"G. A JOINT TERMINAL SURVEY WAS MADE ON 8 AUGUST 1966 BY THEN T/SGT. DONALD W. WILLIAMS, ENT AIR FORCE BASE; MR. ARCHIE CARPENTER, CORPS OF ENGINEERS; AND MRS. FRED F. THOMAS, WIFE OF LESSOR'S MAINTENANCE REPRESENTATIVE (EXHIBIT V). REPORT THEREOF REFLECTS CERTAIN DISCUSSIONS WITH MAJOR HUGHES CONCERNING ITEMS OR CONDITIONS NOTED. CLAIMANT RETIRED FROM MILITARY SERVICE AND ON HIS RETURN TO COLORADO SPRINGS AN INSPECTION OF THE PREMISES WAS MADE ON 31 AUGUST 1966 BY MR. AND MRS. THOMAS P. KRAUSE; MISS LOIS RANDELL, ENT AIR FORCE BASE; AND MICHAEL B. COTTRELL, CORPS OF ENGINEERS (EXHIBIT W). LESSOR WOULD NOT SIGN A RELEASE ON THE DWELLING NOR WOULD LESSOR AGREE THAT THE LIST THEREIN WAS ALL INCLUSIVE. LESSOR INDICATED MORE TIME WAS REQUIRED TO SURVEY THE DWELLING AND REQUEST THEN WOULD BE MADE FOR RESTORATION. THIS WAS THE FIRST NOTICE, ALTHOUGH VERBALLY, THAT LESSOR REQUIRED RESTORATION UNDER THE LEASE.

"H. CLAIM LETTER OF 20 SEPTEMBER 1966 (SEE EXHIBIT A) WAS FIRST WRITTEN NOTICE TO THE GOVERNMENT UNDER THE LEASE THAT LESSOR REQUIRED RESTORATION. MEMORANDUM REPORT OF THE VARIOUS ITEMS WAS MADE WITH REFERENCE TO THE CLAIM BY MR. CARPENTER BASED UPON PREVIOUS PHYSICAL INSPECTIONS OF THE PREMISES AND DISCUSSIONS AND HE RECOMMENDED PAYMENT OF $454.38 IN LIEU OF RESTORATION (EXHIBIT X). ON 13 MARCH 1967 MR. CARPENTER DISCUSSED CLAIM WITH THE LESSOR (EXHIBIT Y W/ATTACHMENTS). MR. CARPENTER WAS ACCOMPANIED BY ANDREW E. TYSVER, ESTIMATOR INSPECTOR, ENT AIR FORCE BASE, WHO PREPARED COST ESTIMATE OF $465.25, ATTACHED TO MR. CARPENTER'S REPORT (EXHIBIT Y, ATTACHMENT NO. 1). STATEMENT WAS OBTAINED BY MR. CARPENTER FROM FREDERICK F. THOMAS, LESSOR'S DESIGNATED REPRESENTATIVE FOR MAINTENANCE (EXHIBIT Y, ATTACHMENT NO. 2). STATEMENTS FROM NEIGHBORS AND OTHERS WERE OBTAINED (SEE EXHIBITS CC, DD, EE, FF AND GG).

"I. COPY OF STATEMENT BY MAJOR HUGHES OBTAINED IN CONNECTION WITH REPORT OF SURVEY IS ATTACHED (EXHIBIT BB). MAJOR HUGHES BY LETTERS DATED 3 NOVEMBER 1966 (EXHIBIT Z) AND 23 NOVEMBER 1966 (EXHIBIT AA) EXPRESSED OPINION THAT THE HOUSE WAS RETURNED TO LESSOR IN SAME CONDITION, EXCEPTING NORMAL WEAR AND TEAR, AS WHEN FIRST OCCUPIED, AND THAT HE WAS NOT GUILTY OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT UNDER REPORT OF SURVEY SYSTEM.

"J. LESSOR HOLDS A HOME OWNER'S INSURANCE POLICY ON THE PREMISES BUT COPY OF SAME HAS NOT BEEN OBTAINED. INVESTIGATION INDICATES NO CLAIM HAS BEEN MADE BY INSURED AND NO SUBROGATION HAS BEEN EFFECTED IN FAVOR OF INSURER (SEE ITEM 2A OF CLAIM).

"K. LESSOR WAS ADVISED BY LETTER ON 9 NOVEMBER 1966 THAT PAYMENT OF $454.38 TO HIM BY MAJOR HUGHES WAS WHAT MR. CARPENTER BELIEVED WAS APPROPRIATE (EXHIBIT Q). BY LETTER DATED 23 NOVEMBER 1966 GOVERNMENT MADE OFFER OF SETTLEMENT IN THAT SUM (EXHIBIT R). BY LETTER DATED 10 FEBRUARY 1967, INQUIRY WAS MADE OF LESSOR AS TO HIS INTENTIONS ABOUT ACCEPTING SUM OF $454.38 (EXHIBIT S). HIS LETTER OF 12 FEBRUARY 1967 REJECTED SAME AND REQUESTED THAT THE FULL AMOUNT OF DAMAGES BE PAID (EXHIBIT T).

"L. EACH ITEM CLAIMED BY THE LESSOR AND FINDINGS OF FACT CONCERNING THE SAME ARE AS FOLLOWS:

"MISSING PROPERTY

"1. TWO TELEPHONE JACKS AT $11.50 EACH, $23.00. THIS ITEM HAS BEEN RESOLVED BETWEEN LESSOR AND THE TELEPHONE COMPANY (SEE EXHIBIT X).

"2. BATH TUB CURTAIN RINGS, $2.00. MAJOR HUGHES STATES HE DOES NOT REMEMBER RINGS BEING LEFT IN THE BATHROOM (SEE EXHIBIT BB). RINGS REMAIN MISSING AND MR. CARPENTER RECOMMENDED PAYMENT OF 50 CENTS (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES 80 CENTS (SEE EXHIBIT Y, ATTACHMENT NO. 1). THIS IS PERSONAL PROPERTY FOR WHICH GOVERNMENT ASSUMED NO RESPONSIBILITY UNDER THE LEASE.

"3. DOOR STOPS, $1.25. MAJOR HUGHES STATES HE KNEW OF NO REASON WHY DOOR STOPS SHOULD BE MISSING (SEE EXHIBIT BB). CERTAIN DOOR STOPS WERE MISSING BUT MR. CARPENTER RECOMMENDED NO SETTLEMENT THEREFOR AS CLAIMANT DID NOT CONSIDER IT A SIGNIFICANT ITEM (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES $1.20 FOR THREE DOOR STOPS MISSING (SEE EXHIBIT Y, ATTACHMENT NO. 1). THIS IS DAMAGE BEYOND ORDINARY WEAR AND TEAR AND $1.20 IS REASONABLE COST.

"4. FIREPLACE SCREEN AND BROOM, $35.00. MAJOR HUGHES STATES THAT OWNER LEFT TEN OR ELEVEN ITEMS IN THE HOUSE OTHER THAN THE USUAL STOVE AND REFRIGERATOR, INCLUDING AN OLD FIREPLACE SET, BUT NO BROOM. THE OLD BRASS SCREEN CAME APART TWICE AND ATTEMPTS BY MAJOR HUGHES TO REPAIR IT FAILED. IT WAS STORED IN THE GARAGE AND LATER DISCARDED AS JUNK. MR. CARPENTER RECOMMENDED PAYMENT OF $10.00 FOR THE SCREEN BUT NOTHING FOR THE BROOM. ENGINEER ESTIMATE INCLUDES $9.50 FOR SCREEN AND BROOM (SEE EXHIBITS X, Y AND BB). THIS IS PERSONAL PROPERTY FOR WHICH GOVERNMENT ASSUMED NO RESPONSIBILITY.

"DAMAGED PROPERTY

"5. BROKEN WINDOW PANE IN REAR DOOR OF GARAGE, $8.70. RECEIPT WAS FURNISHED WITH CLAIM. MAJOR HUGHES STATES THAT ONE OF HIS CHILDREN BROKE THIS PANE WHILE SWEEPING THE GARAGE ON THE DAY THE HUGHES MOVED, AND THAT THE OWNER'S AGENT SAID IT WOULD BE REPLACED USING THE OWNER'S INSURANCE (SEE EXHIBIT BB). MR. THOMAS VERIFIES THAT HE ELECTED TO LET THE LESSOR ARRANGE FOR REPAIR UNDER HIS INSURANCE (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER'S REPORT (EXHIBIT X) REFLECTS THAT THE WINDOW WAS REPLACED AT COST OF $8.70 BY HARDING-BOY'S GLASS, 17 S. WAKSATCH, COLORADO SPRINGS, AND RECOMMENDED PAYMENT OF $8.70. ENGINEER ESTIMATE ALSO INCLUDES $8.70 (SEE EXHIBIT Y, ATTACHMENT NO. 1). THIS IS DAMAGE BEYOND ORDINARY WEAR AND TEAR AND $8.70 IS ACTUAL COST OF REPAIR.

"6. DAMAGED BED MATTRESS, $10.00. MAJOR HUGHES ACKNOWLEDGES THAT THIS MATTRESS WAS LEFT IN THE DWELLING BY LESSOR AND THAT IT WAS TORN WHILE HE OCCUPIED THE PREMISES. HE STATES THAT THE BED MATTRESS HAD BEEN STORED BY THE LESSOR INSIDE A WOODEN CAR TOP CARRIER HANGING ON THE GARAGE WALL WITHIN REACH OF CHILDREN (SEE EXHIBIT BB). MR. CARPENTER REPORTS EVIDENCE OF DART MARKS ON THE WALL BELOW WHERE THE MATTRESS WAS STORED AND VERIFIES THAT THE SAME HAD BEEN SHREDDED AND TORN BEYOND REUSE. HE RECOMMENDED PAYMENT OF $5.00 (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES $6.00 FOR A NEW COVER BUT NOTES THAT THIS IS PLASTIC COATED AND HAD ROTTED WITH AGE (SEE EXHIBIT Y, ATTACHMENT NO. 1). THIS IS PERSONAL PROPERTY FOR WHICH GOVERNMENT ASSUMED NO RESPONSIBILITY UNDER THE LEASE. "7. DAMAGED GARAGE CURTAINS, $20.00. MAJOR HUGHES INDICATES THAT THESE WERE TORN BY THE MOVERS AND DAMAGE WAS NOT DISCOVERED UNTIL HE RETURNED TO CLEAN THE HOUSE AFTER VACANCY (SEE EXHIBIT BB). MR. THOMAS STATES THAT HE BELIEVED THE CURTAINS HAD BEEN IN THE GARAGE FOR AT LEAST 5 YEARS AND WERE DETERIORATED (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER NOTES THESE CURTAINS COMPRISED 4 PANELS ON THE SOUTH GARAGE DOOR WINDOWS, WERE SUN BLEACHED AND WOULD NOT STAND ANOTHER WASHING. HE RECOMMENDED PAYMENT OF 50 CENTS (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDED $2.50 (SEE EXHIBIT Y, ATTACHMENT NO. 1). THIS IS PERSONAL PROPERTY FOR WHICH GOVERNMENT ASSUMED NO RESPONSIBILITY UNDER THE LEASE.

"8. REPLACE CRACKED HEARTH, $36.10. ESTIMATES FOR MATERIAL AND MASONRY BASED ON REPLACEMENT WERE FURNISHED WITH THE CLAIM. MAJOR HUGHES INDICATES THAT THIS IS A RIDICULOUS CLAIM AND THAT HE NEVER NOTICED ANY CRACK (SEE EXHIBIT BB). MR. CARPENTER REPORTS THAT THE HEARTHSTONE ON THE BASEMENT FIREPLACE HAD A CRACK IN ITS CENTER (CROSSWISE), THE STONE BEING 16 INCHES WIDE BY 6 FEET IN LENGTH, INSTALLED AT CONVENIENT SITTING HEIGHT ABOVE THE FLOOR. HE INDICATES IT WELL COULD HAVE BEEN BROKEN BY SOMEONE SITTING ON IT; IT COULD WELL HAVE BEEN BROKEN BECAUSE OF A HIGH SPOT IN THE CENTER OF THE BASE MATERIAL. MAJOR HUGHES STATED TO MR. CARPENTER THAT HE HAD UNSUCCESSFULLY TRIED TO REMOVE SOME CRAYON MARKS THEREFROM (SEE EXHIBIT V). MR. CARPENTER RECOMMENDED NO PAYMENT (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES $7.50. (SEE EXHIBIT Y, ATTACHMENT NO. 1). DAMAGE WAS BEYOND NORMAL WEAR AND TEAR AND REPLACEMENT OF THE HEARTHSTONE RATHER THAN REPAIR OF THE CRACK WOULD BE FAIR AND REASONABLE RESTORATION.

"9. DAMAGED FORMICA IN KITCHEN ($9.00), VINYL BASEMENT FLOORING ($325.38) AND TILE IN SHOWER ROOM ($49.50), $383.88.

"A. MAJOR HUGHES MADE NO STATEMENT CONCERNING THE FORMICA AND MR. THOMAS HAD NO KNOWLEDGE THEREOF. THE CRACKED FORMICA WAS A PIECE 1 1/2 INCHES X 26 INCHES IN LENGTH ON THE EDGE OF THE BASE UNIT IN THE KITCHEN. IT HAD NO SOLID BACKING AND APPARENTLY WAS CRACKED BY BUMPING. MR. CARPENTER RECOMMENDS $4.00 BASED ON PURCHASING A PIECE OF FORMICA AND GLUING IT TO THE BLOCKING (SEE EXHIBIT X). ENGINEER ESTIMATE IS $2.50 TO REPLACE THE STRIP (SEE EXHIBIT Y, ATTACHMENT NO. 1). OBVIOUSLY, BOTH OF THESE ESTIMATES ARE BASED ON SELF-HELP WITHOUT ALLOWANCE FOR COMMERCIAL LABOR. QUOTATION BY SORENSON'S INC. ATTACHED TO CLAIM IS FOR $9.00. THIS WAS DAMAGE BEYOND NORMAL WEAR AND TEAR AND REASONABLE COST OF REPAIR IS $9.00.

"B. MAJOR HUGHES STATES THAT HIS CHILDREN MAY HAVE ADDED TO THE INDENTATIONS IN VINYL BASEMENT FLOOR BUT NOT BEYOND NORMAL WEAR AND TEAR (SEE EXHIBIT BB). MR. THOMAS STATES BASEMENT AREA WAS USED AS A PLAYROOM BY THE LESSOR SO ANY DAMAGES WERE ACCUMULATIVE (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER NOTED THAT 57 TILES APPEARED GOUGED DUE TO POUNDING, DROPPING TOYS AND THE LIKE AND CHIPS AND GOUGES VARIED FROM 1/8 INCH IN LENGTH TO 3/4 INCH IN LENGTH AND WERE APPROXIMATELY 1/16 INCH DEEP. HE RECOMMENDED PAYMENT OF $25.00 (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES $17.00 TO REPLACE 30 TILES IN VARIOUS PARTS OF BASEMENT (SEE EXHIBIT Y, ATTACHMENT NO. 1). CLAIMANT'S ESTIMATE BY SORENSON-S, INC. INCLUDES REPLACEMENT NEW OF THE ENTIRE FLOOR. CONSIDERING PRIOR EXTENSIVE USE BY THE LESSOR, REPAIR RATHER THAN REPLACEMENT OF ENTIRE FLOOR WOULD BE FAIR AND REASONABLE AND ENGINEER ESTIMATE IS BEST EVIDENCE OF SUCH COST.

"C. MAJOR HUGHES ADVISES THAT HE HAD HAD CONSIDERABLE TROUBLE WITH LOOSE TILE FALLING OFF AND HE HAD REPORTED THIS PROBLEM TO THE BASE REALTY OFFICE, ENT AIR FORCE BASE, WHO HAS NO RECORD THEREOF. HE FURTHER STATES THAT HE WENT AHEAD AND REPAIRED THE SHOWER WALL HIMSELF ALTHOUGH HE IS NOT A PROFESSIONAL (SEE EXHIBIT BB). MR. THOMAS INDICATED THAT HE BELIEVED TILE HAD BEEN SOURCE OF TROUBLE EVER SINCE HOUSE WAS BUILT (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER RECOMMENDED PAYMENT OF $25.00 AS MAJOR HUGHES SHOULD NOT HAVE EFFECTED REPAIR ON HIS OWN (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES $8.00 TO REPLACE 20 TILES ON BASEMENT SHOWER WALL (SEE EXHIBIT Y, ATTACHMENT NO. 1). THIS OBVIOUSLY IS NOT BASED ON REPAIR BEING MADE BY COMMERCIAL FIRM, AND SORENSON'S INC. QUOTATION OF $49.00 IS CONSIDERED FAIR AND REASONABLE COST OF RESTORATION.

"10. REPLACE TREES, SHRUBS, BUSHES AND PLANTS, $115.65. ESTIMATE FURNISHED WITH THE CLAIM SHOWS 3 CLIMBING ROSES, $4.95; 5 HYBRID TEA ROSES, $17.50; 6 COLORADO BLUE SPRUCE, $74.00; 2 WHITE BIRCH, $11.50; ONE FORCYTHIA, $2.20; AND 2 LILACS, $5.50, BY UPTON GARDENS, COLORADO SPRINGS. MAJOR HUGHES STATES THAT THE LESSOR HAD INVESTED MANY HOURS OF LABOR IN HIS YARD, EVIDENCED BY THE NUMBER OF FLOWER BEDS, SHRUBS AND BUSHES WHICH WERE STREWN OVER THE BACK AND FRONT YARDS BUT BASED ON NEIGHBORS' COMMENTS LESSOR HAD LITTLE MONEY INVESTED. HE RECALLS THAT NONE OF THE BUSHES WERE THERE EXCEPT THE BLUE SPRUCE WHICH DIED. AGREES HE DID NOT MAINTAIN THE FLOWER BEDS (SEE EXHIBIT BB). MR. THOMAS SUGGESTS THAT ORIGINAL STOCK OF BLUE SPRUCE TREES WAS INFERIOR (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER REPORTS THAT LESSOR HAD UNCOVERED TWO OF THE FIVE HYBRID TEA ROSES AND THE LILACS. HE CONCLUDES THAT THERE WAS DAMAGE BEYOND NORMAL WEAR AND TEAR AS TO ONE CLIMBING ROSE AT $1.65; 2 HYBRID TEA ROSES AT $7.00; 1 WHITE BIRCH AT $5.75 AND 1 COLORADO BLUE SPRUCE AT $14.00, OR $28.40 (SEE EXHIBIT X). THESE ARE UNIT PRICES CLAIMED AND FAVORABLY COMPARE WITH ENGINEER ESTIMATE. IN VIEW OF THE MANY CLIMATOGICAL VARIABLES, SOIL CONDITIONS, AND GENERAL CARE PRACTICES WHICH ARE INVOLVED IN ANY DETERMINATION OF ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS, RESTORATION ON THE BASIS RECOMMENDED BY MR. CARPENTER WOULD BE FAIR AND REASONABLE.

"11. RESTORE LAWN, $592.90. ESTIMATE FURNISHED WITH THE CLAIM IS BASED UPON COMPLETE REMOVAL OF THE EXISTING SOD AND REPLANTING COMPLETE NEW LAWN. MAJOR HUGHES STATES THAT THE ENTIRE LAWN PROBLEM IS RIDICULOUS. ALLEGES HE REGULARLY WATERED THE LAWN (SEE EXHIBIT BB). MR. THOMAS VERIFIES REGULAR WATERING PRACTICES BY MAJOR HUGHES (SEE EXHIBIT Y, ATTACHMENT NO. 2). HOWEVER, MR. CARPENTER, ON BASIS OF STATEMENTS AND DISCUSSIONS WITH OTHER NEIGHBORS CONCLUDED THAT MAJOR HUGHES WAS NEGLIGENT IN HIS LAWN CARE PRACTICES AND, NOTING THAT THE LAWN WAS DAMAGED BY 1965 FLOOD, RECOMMENDS PAYMENT OF 1/3 OF THE COST OF RESTORATION AS FAIR SHARE OF THE DAMAGE TO BE ASSUMED BY THE GOVERNMENT (SEE EXHIBIT X). ENGINEER ESTIMATE INCLUDES $70.00 FOR RESTORATION OF PARKWAY AND $120.00 FOR RESTORATION OF REAR LAWN, OR $190.00. ESTIMATE NOTES, HOWEVER, THAT MOST OF LAWN DAMAGE TO PARKWAY AND REAR YARD WAS CAUSED BY HEAVY RAINS (SEE EXHIBIT Y, ATTACHMENT NO. 1). UNDER THESE CIRCUMSTANCES, IT IS CONCLUDED THAT THE LAWN DAMAGE OCCURRED AS RESULT OF AN ACT OF GOD FOR WHICH THE GOVERNMENT WAS NOT RESPONSIBLE UNDER THE LEASE.

"12. DAMAGE TO FENCE, SHEETROCK WALL AND CEILING, DOORS AND WINDOW SCREENS, $286.00. MAJOR HUGHES ADMITS THAT THE PICKET FENCE WAS BURNED WHEN TRASH BLEW OUT OF THE INCINERATOR. HE STATES THAT THE OTHER FENCE HAD BEEN REMOVED AND STORED IN THE GARAGE AT THE TIME HE OCCUPIED THE HOUSE. HE STATES THAT HE HAD REPAIRED THE REAR SCREEN DOOR AS BEST HE COULD AND THAT THE PATIO SCREEN HAD BEEN TAPED AND HE MERELY REPLACED THE TAPE. HE INDICATED DAMAGE TO WALL WAS CAUSED BY MOVERS AND HE HAD REPAIRED SUCH DAMAGE, BUT THAT THERE WAS NO CEILING DAMAGE TO HIS KNOWLEDGE (SEE EXHIBIT BB). MR. THOMAS ADVISES THAT THE DOORS DAMAGED IN THE BASEMENT HAD BEEN PURCHASED BY LESSOR AT SALVAGE AT COST OF $1.00 TO $2.00 EACH (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER RECOMMENDS RESTORATION IS PROPER FOR PICKET FENCE, PATIO SCREEN DOOR, WALLS AND CEILINGS, DOORS AND ONE ALUMINUM WINDOW SCREEN (SEE EXHIBIT X). ENGINEERING ESTIMATE FOR THESE ITEMS IS $9.60 FOR PICKET FENCE, $8.00 FOR PATIO SCREEN DOOR, $10.00 FOR WALLS AND CEILINGS, AND $91.00 FOR REPLACEMENT OF DOORS. IT ALSO INCLUDES $13.00 FOR REPAIR OF GARAGE DOOR WHICH CLAIMANT REQUESTS BE REPLACED (SEE EXHIBIT Y, ATTACHMENT NO. 1). ALTHOUGH THE $10.00 FOR REPAIR OF WALLS AND CEILINGS APPEARS TO BE BASED ON A -DO-IT-YOURSELF- CONCEPT, THIS IS BEST ESTIMATE AVAILABLE AS CLAIMANT DID NOT FURNISH COST BREAKDOWN. IT IS NOTED, ALSO, THAT LEASE PROVIDED FOR REDECORATION BY LESSOR AT LEAST EVERY THREE YEARS. PREVIOUSLY REMOVED FENCE IS PERSONAL PROPERTY FOR WHICH GOVERNMENT ASSUMED NO RESPONSIBILITY UNDER LEASE.

"13. GENERAL CLEANUP OF PREMISES, $100.00. THIS SUM IS NOT SUBSTANTIATED BY CLAIMANT. MAJOR HUGHES ALLEGES HE SPENT $70.00 TO CLEAN UP PREMISES (SEE EXHIBIT BB). MR. THOMAS VERIFIES GENERAL GOOD CLEANUP CONDITION OF THE PREMISES (SEE EXHIBIT Y, ATTACHMENT NO. 2). MR. CARPENTER NOTES THAT LESSOR ASSIGNED GOOD SHARE OF CLEANUP TO REAR PATIO AND NOTED THAT THE HUGHES HAD KEPT A DOG OUT THERE BUT THAT THERE WAS NO NEED FOR EXTENSIVE CLEANUP. HE RECOMMENDS PAYMENT OF $25.00 (SEE EXHIBIT X). HOWEVER, GOVERNMENT ASSUMED NO RESPONSIBILITY FOR CLEANUP OF THE PREMISES UNDER LEASE TERMS AND THERE IS NO EVIDENCE OF OTHER THAN ORDINARY WEAR AND TEAR ATTRIBUTABLE TO THIS ITEM.

"14. IN SUMMARY, FOLLOWING RECAPITULATION IS MADE:

CARPENTER ENGINEER

"ITEM CLAIM ESTIMATE ESTIMATE RECOMMENDED

------ ----- --------- -------- ----------- "1A TELEPHONE JACKS

23.00 "1B CURTAIN RINGS 2.00 .50 .80 "1C DOOR STOPS

1.25 1.20 1.20 "1D FIREPLACE SET35.00 10.00

9.50 "2A GARAGE WINDOW 8.70 8.70 8.70 8.70 "2B MATTRESS

10.00 5.00 6.00 "2C GARAGE CURTAINS 20.00 .50 2.50 "2D CRACKED HEARTH 36.10 7.50 36.10 "2E FORMICA, VINYL AND TILE383.88 54.00 27.50 75.00 "2F TREES, SHRUBS, ETC. 115.65 28.40

79.50 28.40 "2G RESTORE LAWN 592.90 197.63 190.00 "2H FENCE, WALLS, ETC. 286.00 124.65 131.60 131.60 "2I ELECTRIC RECEPTACLE PLATES .50

.45 .45 "3 CLEANING OF HOME 100.00 25.00

"1,614.98 454.38 465.25 281.45"

YOUR ORIGINAL CLAIM DATED SEPTEMBER 20, 1966, WAS IN THE AMOUNT OF $1,614.98, ITEMIZED AS SHOWN ABOVE. THE CLAIM WHICH YOU FILED ON STANDARD FORM 95 DATED DECEMBER 27, 1967, WAS IN THE AMOUNT OF $1,686.98. THE DIFFERENCE IN THE TWO AMOUNTS CONSISTS OF AN ITEM OF $23 FOR TELEPHONE JACKS DELETED FROM THE CLAIM OF DECEMBER 27, 1967, AND THE AMOUNT OF $95 FOR PAINTING NOT PREVIOUSLY INCLUDED.

THE CHIEF OF ENGINEERS RECOMMENDED PAYMENT OF YOUR CLAIM IN THE TOTAL AMOUNT OF $574.48. HE DISALLOWED THE AMOUNT CLAIMED FOR TELEPHONE JACKS (1A) AS HAVING BEEN RESOLVED BETWEEN YOU AND THE TELEPHONE COMPANY; THE AMOUNTS CLAIMED FOR CURTAIN RINGS AND DOOR STOPS AS BEING ITEMS NOT CUSTOMARILY CHARGED TO TENANTS (1B AND 1C); AND THE COST OF PAINTING WHICH IS A MAINTENANCE ITEM NORMALLY BORNE BY THE LESSOR. IN COMPUTING THE AMOUNT ALLOWED HE RECOMMENDED $83 FOR ITEM 2E IN YOUR CLAIM OF SEPTEMBER 20, 1966. HE ALSO RECOMMENDED THE LARGEST AMOUNT FOR EACH ITEM AS SHOWN IN COLUMNS 2, 3, AND 4 OF THE TABULATION IN PARAGRAPH 14 OF THE REPORT AS QUOTED ABOVE OR $491.

IT APPEARS FROM OUR EXAMINATION AND REVIEW OF THE FILE THAT THE MATTER HAS BEEN THOROUGHLY INVESTIGATED AND CONSIDERED BY THE ARMY CORPS OF ENGINEERS. WE DO NOT HAVE THE TECHNICAL PERSONNEL TO CONDUCT SIMILAR INVESTIGATIONS AND NECESSARILY MUST RELY UPON THE FINDINGS OF FACT AS DETERMINED BY THE ADMINISTRATIVE AGENCY. ACCORDINGLY, UPON REVIEW, THE ACTION OF THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, IN ALLOWING YOUR CLAIM IN THE AMOUNT OF $574.48, AS RECOMMENDED BY THE CHIEF OF ENGINEERS, MUST BE AND HEREBY IS SUSTAINED.

YOUR ORIGINAL LETTER AND ATTACHMENTS HAVE BECOME A PART OF THE OFFICIAL FILE OF THE GENERAL ACCOUNTING OFFICE AND THEREFORE MAY NOT BE RETURNED TO YOU AS REQUESTED.

IF A CLAIMANT IS NOT SATISFIED WITH THE AMOUNT WHICH THIS OFFICE DETERMINES TO BE DUE TO HIM FROM THE GOVERNMENT OF THE UNITED STATES, HE HAS RECOURSE TO THE PROPER COURTS WHERE DISPUTED QUESTIONS OF FACT CAN BE DETERMINED.

IN THE EVENT THAT YOU DECIDE THAT YOU DO NOT WANT TO PURSUE YOUR REMEDY IN THE COURTS AND DECIDE TO ACCEPT THE CHECK FOR $574.48, IN FULL AND FINAL SETTLEMENT OF THE CLAIM, THE CHECK WHICH IS ENCLOSED HEREWITH MAY BE NEGOTIATED. IF YOU DO NOT WISH TO ACCEPT THE CHECK IN FULL AND FINAL SETTLEMENT OF YOUR CLAIM IT SHOULD BE RETURNED TO THIS OFFICE.