Chavenelle Road Reconstruction Project - Consent to Assignment of ContractCity of Dubuque
City Council Meeting
Consent Items # 015.
Copyrighted
May 16, 2022
ITEM TITLE: Chavenelle Road Reconstruction Project - Consent to Assignment of
Contract
SUMMARY: City Manager recommending approval providing consent to the
assignment of contract for the Chavenelle Road — NW Arterial to
Radford Road Reconstruction Project from Horsfield Construction to
Dyersville Ready Mix.
RESOLUTION Consenting to the Assignment of the Public
Improvement Contract for the Chavenelle Road Reconstruction Project
— Radford Road to NW Arterial by Horsfield Construction, Inc. to BM-H
Acquisition Entity, LLC, an Iowa Limited Liability Company, a wholly -
owned subsidiary of Dyersville Ready Mix, Inc.
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
FIN ik[91:ILyil21zIII l+]
Description Type
Chavenelle Road Reconstruction Project - Consent to City Manager Memo
Assignment of Contract-MVM Memo
Staff Memo Staff Memo
Resolution Resolutions
THE CITY OF
Dubuque
DUB TEE1.
All -America City
Masterpiece on the Mississippi
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Chavenelle Road Reconstruction Project — Consent to Assignment of
Contract
DATE: May 10, 2022
City Engineer Gus Psihoyos is recommending City Council adopt a resolution providing
consent to the assignment of contract for the Chavenelle Road — NW Arterial to Radford
Road Reconstruction Project from Horsfield Construction to Dyersville Ready Mix.
Horsfield Construction has reconstructed the roadway and installed new 12" watermain
serving the industrial park from Radford Road to the NW Arterial. The roadway was
open to traffic by late November of 2021. On May 5, 2022, the City of Dubuque
received formal request from Horsfield Construction for consent to the assignment of
the construction contract to Dyersville Ready Mix and Subsidiary. There is currently
$101,490.50 of remaining work required to be completed on the project. This work
includes replacing damaged pavement, installation of the sidewalk along the south side
of the road, installation of a streetlight, landscaping, and restoration.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Gus Psihoyos, City Engineer
THE CITY OF
DUB r
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer
DATE: May 5, 2022
Dubuque
AII•Amedca City
2007-2012.2013
2017*2019
SUBJECT: Chavenelle Road Reconstruction Project — Consent to Assignment of
Contract
INTRODUCTION
The attached resolution provides City consent to the assignment of the construction
contract for the Chavenelle Road — NW Arterial to Radford Road Reconstruction Project.
BACKGROUND
The City of Dubuque awarded the construction contract to Horsfield Construction with
resolution 255-21 at the July 19, 2021 city council meeting. The proposed improvements
to Chavenelle Road from the NW Arterial to Radford Road included the removal and
replacement of the PCC pavement, construction of stone sub -base, replacement of
driveways, reconstruction of storm sewer intakes, the installation of sidewalk along the
south side of the road and installation of pavement subdrains. Additionally, watermain
replacement was proposed in the corridor, funded by the Watermain Replacements fund.
Since that time, Horsfield Construction has reconstructed the roadway and installed new
12" watermain serving the industrial park from Radford Road to the NW Arterial. The
roadway was open to traffic by late November of 2021. There is currently $101,490.50 of
remaining work required to be completed on the project. This work includes replacing
damaged pavement, installation of the sidewalk along the south side of the road,
installation of a streetlight, landscaping, and restoration.
DISCUSSION
The City of Dubuque on May 5, 2022, received formal request from Horsfield Construction
for consent to the assignment of the construction contract to Dyersville Ready Mix and
Subsidiary. On March 4, 2022, Horsfield Construction entered into an Assignment and
Assumption Agreement in which Horsfield Construction assigned all of its rights, title, and
interest in the Chavenelle Road Contract to Dyersville Ready Mix & Subsidiary, and
Dyersville Ready Mix and Subsidiary assumed all of Horsfield Construction's rights, title,
interests and obligations in the Chavenelle Road Contract. A copy of the Assignment and
Assumption Agreement is attached.
Dyersville Ready Mix and Subsidiary has contacted engineering staff and supplied new
performance bonds and insurance to complete the work. The remaining work will be
completed immediately this spring to close out the contract. The assignment of contract
does not impact bid unit pricing on the contract or special assessments.
RECOMMENDATION
The City Council is requested to approve the resolution providing consent to the
assignment of contract.
Prepared By: Jon Dienst, P.E.
cc: Bob Schiesl, Assistant City Engineer
Nate Steffen, P.E., Civil Engineer
Barry Lindahl, City Attorney
Crenna Brumwell, City Attorney
Prepared by Gus Psihoyos, City Engineer, 50 W. 131h St., Dubuque IA 52001 (563) 589-4276
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 131h St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 190-22
CONSENTING TO THE ASSIGNMENT OF THE PUBLIC IMPROVEMENT CONTRACT
FOR THE CHAVENELLE ROAD RECONSTRUCTION PROJECT — RADFORD ROAD
TO NW ARTERIAL BY HORSFIELD CONSTRUCTION, INC. TO BM-H ACQUISITION
ENTITY, LLC, AN IOWA LIMITED LIABILITY COMPANY, A WHOLLY -OWNED
SUBSIDIARY OF DYERSVILLE READY MIX, INC.
Whereas, the City Council of the City of Dubuque on January 19, 2021 awarded a
Public Improvement Contract for the Chavenelle Road Reconstruction Project — Radford
Rd to NW Arterial (the Contract) to Horsfield Construction, Inc.; and.
Whereas, BM-H Acquisition Entity, LLC, an Iowa limited liability company, a wholly -
owned subsidiary of Dyersville Ready Mix, Inc. has purchased the assets of Horsfield
Construction, Inc., including the Contract; and
Whereas, Horsfield Construction, Inc. and BM-H Acquisition Entity, LLC, an Iowa
limited liability company, a wholly -owned subsidiary of Dyersville Ready Mix, Inc. have
entered into an Assignment and Assumption Agreement, a copy of which is attached
hereto, which assigns the Contract to BM-H Acquisition Entity, LLC, an Iowa limited
liability company, a wholly -owned subsidiary of Dyersville Ready Mix, Inc.; and
Whereas, the Contract requires the consent of the City of Dubuque to an
assignment of the Contract; and
Whereas, Horsfield Construction, Inc. and BM-H Acquisition Entity, LLC, an Iowa
limited liability company, a wholly -owned subsidiary of Dyersville Ready Mix, Inc., have
requested the City's consent to the Assignment and Assumption Agreement; and
Whereas, the City Council finds that it is in the interests of the City of Dubuque to
consent to the Assignment and Assumption Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE AS FOLLOWS:
Section 1. The City of Dubuque hereby consents to the Assignment and
Assumption Agreement with respect to the assignment of the Public Improvement
Contract for the Chavenelle Road Reconstruction Project — Radford Rd to NW Arterial
by Horsfield Construction, Inc. to BM-H Acquisition Entity, LLC, an Iowa limited liability
company, a wholly -owned subsidiary of Dyersville Ready Mix, Inc.
Section 2. The City Manager is authorized and directed to take such action as
may be necessary to carry out the terms of this resolution.
Passed, approved, and adopted this 16th day of May, 2022.
1"'i (I-!
David T. Resnick, Mayor Pro Tern
Attest:
Trish L. Gleason, Assistant City Clerk
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is made effective as of March
4, 2022 (the "Effective Date'), by and between Horsfield Construction, Inc., an Iowa corporation
("Assignor") and Dyersville Ready Mix, Inc., an Iowa corporation ("Dyersville Ready Mix"),
through its acquisition entity, BM-H Acquisition Entity, LLC, an Iowa limited Iiability company
("Assignee").
RECITALS
A. Assignee is purchasing certain Purchased Assets pursuant to an asset purchase
agreement by and between itself, Assignor, Horsfield Materials, Inc., an Iowa
corporation, Horsfield Company, Inc., an Iowa corporation, Matthew P, Horsfield,
Rodney Horsfield, and Maureen A. Welty dated February 21, 2022 (the "Asset
Purchase Agreement").
B. Assignor desires to assign all of its right, title, and interest in the Contracts, as defined
in the Asset Purchase Agreement and listed in Schedule I attached hereto, to
Assignee, and Assignee desires to assume all of Assignor's rights, title, interests, and
obligations (arising after the date of this Agreement) under the Contracts, upon the
terms and conditions contained herein,
C. Assignee has obtained the necessary consents to the assignment from C.J. Moyna &
Sons, Inc., who is the Contactor on 19-826, Swiss Valley Pipe Job, and from Flynn
Company, Inc., who is the Contractor on 21-861, Swiss Valley Interchange - Paving,
D. All capitalized terms used in this Agreement which are not defined herein shall have
the meanings set forth in the Asset Purchase Agreement,
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
expressed herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. The recitals set forth above are incorporated herein by this reference and are
acknowledged by the parties to be true and correct.
2. Assignor hereby assigns all of its rights, title, and interests in the Contracts to
Assignee.
3. Assignee hereby assumes all rights, title, interests and obligations in and related to the
Contracts, in accordance with the Asset Purchase Agreement,
4. This Agreement may not be modified, amended or terminated, nor any of its
provisions waived, except by an agreement in writing signed by Assignee and
Assignor,
5. The covenants, agreements, terms, provisions and conditions of this Agreement shall
be binding up and inure to the benefit of the parties hereto and their respective
successors and assigns.
6. This Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which will constitute one and the same instrument. Such
counterparts may be executed and delivered by facsimile or other electronic means by
any of the parties, and the receiving party may rely on the receipt of such document so
executed and delivered as if the original had been received.
7. This Agreement shall be construed in accordance with the laws of the State of Iowa.
Any failure of any party to insist upon strict compliance with the obligations contained
in this Agreement will not operate as a waiver of or estoppel with respect to, any
subsequent or other failure. No single or partial exercise of a right or remedy will
preclude any other or further exercise thereof or of any other right or remedy hereunder.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as of the
Effective Date,
ASSIGNOR: ASSIGNEE:
Horsfield Construction, Inc.
B5
BM-H Acquisition Entity, LLC, an Iowa
limited liability company, a wholly owned
—1sidiary of Dyersville Ready Mix, Inc., an
a corporation
Tony A. Thier, Its
4. This Agreement may not be modified, amended or terminated, nor any of its
provisions waived, except by an agreement in writing signed by Assignee and
Assignor.
5. The covenants, agreements, tents, provisions and conditions of this Agreement shall
be binding up and inure to the benefit of the parties hereto and their respective
successors and assigns.
d, This Agtectnent maybe executed in any number of counterpaats, each of which will be
deemed an original, but all of which will constitute one and the same instrument. Such
cotu*rparts may be executed and delivered by facsimile or other electronio means by
any of the parties, and the receiving party may rely on the receipt of such document so
oxacuted and delivered as If the original had been received.
7. This Agreement shall be construed in accordance with the laws of the state of Iowa
Any failure of any party to insist upon strict compliance with the obligations contained
in this Agreement will not operate as a waiver of, or estoppel with respect to, oily
subsequent or other failure. No single or partial exercise of a right or remedy will
preclude any other or further exercise thereof or of any other right or remedy hereunder.
IN WITNESS WIIFREiOF, Assignor and. Assignee have executed this Agreement as of the
Effective Date,
ASSIGNOR; ASSIGNEE,
Horsfield Construction, Inc. BM -I --I Acquisition Entity, LLC, all Iowa
limited liability company, a wholly owned
subsidiary of Dyersville Ready Mix, Inc,, an
Iowa corporation
By;
Matthew F. Horsfleld, Its Presidcat
By
To y Thier, its l
SCHEDULEI
CONTRACTS
Job Name/Description
Job #
Dollar amount
of work to be
completed in
2022
Swiss Vatley Pipe Job
19-826
$64,472.50
Swiss Valley Interchange - Paving
19-827
$54,281.89
County Home Road - Linn County
20-836
$34,870.00
ChavenelleRoad Reconstruction
21-861
$101,490.50
2022 Street Improvements -
E worth
22-866
$677,795.50
Total Outstanding Contracts/Awarded Contracts at 2-4-
2022
$932,910.39
April 28, 2022
City of Dubuque
Engineering Department
Attn: John Dienst
50 W 1311, Street
Dubuque, Iowa 52001
Dear Mr. Dienst,
On July 20, 2021, the City of Dubuque entered into a Public Improvement Contract with
Horsfield Construction, Inc., for the furnishing of all materials, equipment, and labor necessary
for the Chavenelle Road Reconstruction Project — Radford Rd to NW Arterial for the amount of
$1,864,873.50 (the "Chavenelle Road Contract"). A copy of the Chavenelle Road Contract is
enclosed with this letter for your reference.
Dyersville Ready Mix, Inc., an Iowa Corporation ("Dyersville Ready Mix"), through its
acquisition entity and wholly owned subsidiary, BM-H Acquisition Entity, LLC, an Iowa limited
liability company ("BM-H Acquisition Entity") (Dyersville Ready Mix and BM-H Acquisition
Entity are collectively referred to as "Dyersville Ready Mix & Subsidiary"), purchased certain
Purchased Assets pursuant to an asset purchase agreement by and between itself, Horsfield
Construction, Inc., an Iowa corporation ("Horsfield Construction', Horsfield Materials, Inc., an
Iowa corporation, Horsfield Company, Inc., an Iowa corporation, Matthew P. Horsfield, Rodney
Horsfield, and Maureen A. Welty dated February 21, 2022 (the "Asset Purchase Agreement").
Pursuant to the terms of the Asset Purchase Agreement, Horsfield Construction entered into an
Assignment and Assumption Agreement dated March 4, 2022 under which Horsfield
Construction assigned all of its rights, title, and interest in the Chavenelle Road Contract to
Dyersville Ready Mix & Subsidiary, and Dyersville Ready Mix & Subsidiary assumed all of
Horsfield Construction's rights, title, interests and obligations in the Chavenelle Road Contract.
A copy of the Assignment and Assumption Agreement is included for your reference.
Dyersville Ready Mix & Subsidiary has provided the required performance bond and Certificate
of Insurance, and agrees that all terms and conditions, provisions, etc., of the Chavenelle Road
Contract remain in full effect with the new prime and contracting authority, including, but not
limited to, the obligation to indemnify and hold harmless the contracting authority, as well as its
officers and employees, as provided for in the specifications of the original contract. A copy of
Dyersville Ready Mix & Subsidiary's new performance bond and certificate of insurance are
enclosed with this letter for your reference.
In light of the above described business transaction, Horsfield Construction respectfully and
formally requests the City of Dubuque to assign the Chavenelle Road Contract from Horsfield
Construction to Dyersville Ready Mix & Subsidiary. If you should have any questions regarding
any of the contents of this letter, please do not hesitate to contact the undersigned below,
Sincerely,
Matthew P. Horsfield
Enc.
Assignment and Assumption Agreement dated March 4, 2022
Chavenelle Road Contract dated July 20, 2021
New Insurance Performance Bond for the Original Contract Amount
Insurance Certificate
May 2, 2022
Dear Mr. Dienst,
On July 20, 2021, the City of Dubuque entered into a Public Improvement Contract with
Horsfield Construction, Inc., for the famishing of all materials, equipment, and labor necessary
for the Chavenelle Road Reconstruction Project — Radford Rd to NW Arterial for the amount of
$1,864,873.50 (the "Chavenelle Road Contract").
Dyersville Ready Mix, Inc., an Iowa Corporation ("Dyersville Ready Mix"), through its
acquisition entity and wholly owned subsidiary, BM-H Acquisition Entity, LLC, an Iowa limited
liability company (`BM-H Acquisition Entity") (Dyersville Ready Mix and BM-H Acquisition
Entity are collectively referred to as "Dyersville Ready Mix & Subsidiary"), purchased certain
Purchased Assets pursuant to an asset purchase agreement by and between itself, Horsfield
Construction, Inc., an Iowa corporation ("Horsfield Construction"), Horsfield Materials, Inc., an
Iowa corporation, Horsfield Company, Inc., an Iowa corporation, Matthew P. Horsfield, Rodney
Horsfield, and Maureen A. Welty dated February 21, 2022 (the "Asset Purchase Agreement").
Pursuant to the terms of the Asset Purchase Agreement, Horsfield Construction entered into an
Assignment and Assumption Agreement dated March 4, 2022 under which Horsfield
Construction assigned all of its rights, title, and interest in the Chavenelle Road Contract to
Dyersville Ready Mix & Subsidiary, and Dyersville Ready Mix & Subsidiary assumed all of
Horsfield Construction's rights, title, interests and obligations in the Chavenelle Road Contract.
Dyersville Ready Mix & Subsidiary has provided the required performance bond and Certificate
of Insurance, and agrees that all terms and conditions, provisions, etc., of the Chavenelle Road
Contract remain in full effect with the new prime and contracting authority, including, but not
limited to, the obligation to indemnify and hold harmless the contracting authority, as well as its
officers and employees, as provided for in the specifications of the original contract. A copy of
Dyersville Ready Mix & Subsidiary's new performance bond and certificate of insurance are
provided with this letter for your reference.
Dyersville Ready Mix & Subsidiary respectfully requests the City of Dubuque to assign the
Chavenelle Road Contract from Horsfield Construction to Dyersville Ready Mix & Subsidiary.
Best regards,
Tony Thier