(Copied from handwritten)

APPENDIX E

TO ALIT SELIMI

FROM JAMES F. OSTERBUR

 

A review is made necessary due to the failure of Mr. Selimi to keep his word. It is noted for court purposes mr. selimi clearly and deliberately stated to me on several occasions (BEFORE I signed) the proposal in question: His words were; AI want you to make money here, at this job@! Noted he was quite firm and did his best to convince me he meant what he said. I regard this as an oral/ verbal contract/ and mr selimi verified it was true in front of his partner Isen, & me, while we discussed the problem of a contract amount which failed to meet expenditures. This was during the last week of February / this is the last week of march. At that meeting mr selimi said He WOULD do his very best to see I got paid for all expenses and MORE.

Mr. selimi and I talked again this date of march 30 (the work being over). Mr selimi now states maybe he will pay a little of the expenditure in time if he chooses to do so. BUT, if I don=t accept this new offer He will refuse to pay anything. Reality is mr selimi is in money trouble and clearly I am to be abandoned. For clarity the money in question is strictly out of pocket expense, as I have NOT made one single dime in labor or other, for myself in over 4 months of work. I have said to selimi AI don=t@ care about the work just pay the expenses, and we will be Afriends@. Mr selimi choose instead to BREAK his promise that I would make money here/ to BREAK his promise in front of Isen and me, to do his BEST and pay not only the expenses but also a reasonable wage for the job done. It is my testimony without selimi=s verbal guarantee that I would make money at this job/ the proposal in question would NOT have been entered into. Of interest I bid (a portion of this job) with 2 other contractors each bidding on the same and I was $2000 under one & even with the other. Mr. selimi complained for fifteen minutes about he=s not saving any money and because immediately before reviewing the bids selimi got 6 inches from my face when he told me for a 3rd time, I WANT YOU to make money here.

Believing him to be honest I accepted his GUARANTEE and simply threw in the rest of the work, believing a FAIR agreement could be reached at the end of the job. I can be understood: if the owner wants you to make money, you will! This is the basis of our oral agreement: the owner says you WILL make money/ and I accept this as a contractual guarantee! The question is then WHY did selimi make this statement? The answer can only go, Aone way or the other@; either it was a guarantee or it was an attempt to gain a trust for dishonest purposes.

A review of the work preceding this proposal in question: Several nights & weeks drafting a kitchen & dining layout at selimi request; demolition of areas within the building; removal of concrete for plumbing work; painting the outside of the building; & pouring a concrete footing for a new cooler, which included cutting a hole through the wall for an access door. selim changed his mind and part of the first footing had to be removed and a different footing poured instead. (noted at no time was I involved in this decision/ it simply became my problem). During this time as many as 5 different people were employed by me, with very limited experience HOWEVER each was adequate and worked hard. During this time selimi appeared frequently and demanded my time and often expected me to accompany him off the job site. These men DID need my supervision and the consequence was LESS by far was accomplished, without my presence. The charge for this amount of work was $17000 dollars which alit payed and then requested money back/ I paid $3000, back even though HE was directly responsible. To this selimi would say, IF they had been professionals they would have been able to work without me. A LOT of plain hard work was done and a construction reality IS: the contractor is hired to do a specific work, he is NOT obligated to plan, draft, consult, or otherwise ; that is the architects job/ for which he charges. It is true I allowed weeks throughout the construction and demolition period to be literally consumed by selimi in discussing his plans, his trouble with his architect, his need for a consultant, because a lot of effort was spent for him to get here, & I felt he should be granted some of that time, the rest he simply took.

Reviewing the contract:

Be it known, I have finished my work, before all other contractors. During the contractual period selimi had 2 jobs; to take care of the money & to pay within 3 days of notification of a payment demand in the amount given. Selimi DID NOT do his job in either matter. The first problem occurred during the 2nd week in February. Selimi was clearly & deliberately told a payment of $10000 was due and he failed to pay within a weeks period. The next time a $10,000 payment selimi again paid after the deadline and an amount one-half of the billed amount. He then said, Athe banker won=t let me give you any more than this@. I called the banker Mr. Dillion and inquired, he said, ANOT ME, it was selimi who refused to authorize.@ This is now the 3rd time the contract was broken, and a letter was given to clarify how the money was used. Noted: under terms and conditions of this proposal Afailure to pay or failure to pay within 3 days, results in the contract ending! NO contract exists beyond this time. Selimi HAS read the contract & employs an attorney. Every billing except for the very last $2000 bill for extra=s was handled in exactly the same way. Irregardless of the contract being broken, I continued to work STILL believing selimi would honor his promise.

Regarding the contract and its description of work selimi CLEARLY wants an exact interpretation of my obligations as outlined: AS IT READS:

the installation of the restaurant hoods and flues; THIS WAS DONE. (Noted installation does NOT include or assume the purchase of parts. This includes flues & all piping materials as well as assembly of the materials into usable parts are NOT my responsibility. Installation of gas quick connects is extra. The steel for the support grid is extra and so on.

With regard to ceramic work Aowner supplied tile and grout for kitchen & cooler.

Repair of plumbing excavation does NOT include changes, or failure to read instructions & properly place components.

The installation of rug DOES NOT include glues or trowels or planing or repairing the floor or the equipment rental necessary.

Iron work does NOT include the bus cart located in front of the smoking section as this was never in the plan/ holes were cut in the concrete, steel components made, & then selimi changed his mind.

Carpentry beyond the date the $5000 dollar was deposited, falls behind the contract , because selimi broke the contract. Therefore ANY work, paid for or done by me is subject to a DIRECT CHALLENGE/ and a question exists as to material costs.

The concept that restroom stalls Ais an accessory@ is mute as code demands them therefore whatever code demand cannot be an accessory.

Problems with the plumber created NUMEROUS time & cost overruns for me. Selimi hired the plumber WOULD NOT let me fire him at an early stage, and become directly responsible for his actions and their consequences.

The installation of, as clearly begins the description of the work DOES NOT include purchase of ceiling tile or grid or paint. IF that was meant or agreed to the wording would be the same as : Aall carpentry & payments.....@.

Area=s painted by others were at selimi discretion and are NOT subject to an adjustment.

The repair of damaged kitchen areas DOES NOT include the building of walls or offices or shelves or the materials used to construct them.

Work done to the new cooler including footings & floor set upon the old Aparking lot@ were NOT/ are not guaranteed, therefore ANY problem that occurs is not mine. Selimi insisted the blacktop surface was not to be excavated nor footings dug, therefore it is his own problem, should any occur.

In addition NO allowance was made to fix the roof or seal the flue or add a flue for the new water heater, and are assumed extra

Likewise the inner entrance doors were removed, stored, and walls, flooring, & ceiling replaced/ these are extra=s.

Again the constant changes by selimi ARE NOT part of this contract & consequently owed.

Begin with your banker & lawyer and then: you have ONE opportunity to quote me a fair price! As you have said to me, I will REPEAT TO YOU: Your money problems are yours NOT MINE

James F. Osterbur

Beyond the influence of the contract EXTRA work is / has been determined. Be aware Unloading, setup, nor providing labor or equipment in ANY way is covered/ therefore it is an extra and will be charged!

BE ADVISED, AI am no longer, interested in breaking even@. Failure to be fair, as it applies to 4 and one half months of work ; 6 days a week @ 8-10 hours or more per day including 3 weeks of constant 12-14 hour days @ 7 days a week DO APPLY.

You have until Tuesday April 6 to complete this contract or to court we go/ wherein a fine of $1000 dollars will be added; interest in the amount you bank charges plus associated penalties and to work as a lawyer means to charge as a lawyer!