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Signed Contracts®ubuque ~_ ~ „_ j pll-Ame~~I~a City `,~ 2007 T®: Michael C. Van Milligan, City Manager FR®1~1: Steve Sampson Brown, Project Manage ®ATE: April 28, 2009 ~~~ SUBJECT: Parking Ramp Soil Agreement between WC Stewart Construction Company and the City of Dubuque Regarding Key West, Iowa Site The attached letter relates to the terms of the agreement between WC Stewart Construction Company (Stewart) and the City of Dubuque with regard to the excess soils and fill material that were removed by Stewart from the City's construction site for the-Port of Dubuque Public Parking Facility. This letter has been reviewed and approved by City Attorney Barry Lindahl and Attorney at Law Jane McAllister. ACTT®N T® EE TAkCEN Your review and execution of this letter would be appreciated. Attach. City Manager's Office City Hall 50 West 13th Street Dubuque, Iowa 52001-4864 (563) 589-4110 phone (563) 589-4149 fax (563) 690-6678 TDD ctymgr@cityofdubuque.org Mr. Wayne C. Stewart President W.C. Stewart Construction Company 221 East 8th Street Post Office Box 1174 Dubuque, Iowa 52004-1174 TI-IE CITY OF T~ _ _ r ~~~ti~a~~ April 28, 2009 RE: Parking Ramp Soil Agreement Between W.C. Stewart Construction Company and the City of Dubuque Regarding Key West, Iowa Site Dear Mr. Stewart: This letter is written for the purpose of outlining the terms of the agreement ("Agreement") between your company, W.C. Stewart Construction Company ("Stewart"), and the City of Dubuque ("City") (collectively the "Parties") with regard to the excess soils and fill material (hereinafter the "parking ramp soils") that were removed by Stewart from the City's construction site for the proposed Port of Dubuque Public Parking Facility at East Fifth Street and Bell Street in Dubuque, Iowa (hereinafter the "Site"). During the course of the construction at the Site, parking ramp soils were removed by Stewart and transported to two of its properties; one in Illinois and one in Iowa. The property that is the subject of this Agreement is that owned by Stewart and located in Key West, Iowa (hereinafter "Subject Property"). Stewart has advised the City that it only became aware of the Soil Management Plan ("SMP") that was developed by the City's environmental consultant, Terracon of Bettendorf, Iowa ("Terracon"), after the excavation work had commenced. The SMP was intended to be included in the bid materials and operate as guidance for contractors performing the excavation work at the Site. The SMP set forth an assessment of potential hazards associated with possible chemical impact, identified health and safety precautions necessary to reduce the risk of chemical exposure to onsite construction workers and provided procedures detailing the proper management of excavated soils. Stewart also has asserted that it only became aware of the fact that some parking ramp soils may contain residual amounts of some metals and petroleum- related chemicals at levels that require specialized management under environmental laws when removed from the Site after the excavation work had commenced. Service People Integrity Responsibility Innovation Teamwork Mr. Wayne C. Stewart April 28, 2009 Page 2 The Agreement between Stewart and the City shall be in accordance with the terms and conditions as follows: REM®VAL AN® REPLACEMENT' ®F PARKING RAMP S®ILS 1. The City, through its employees, agents or contractors, hereby agrees to excavate and remove a portion of the parking ramp soils from the Subject Property at its own cost and using its own contractor in accordance with the work plan approved by the Iowa Department of Natural Resources ("IDNR") for the Subject Property. In doing so, the City shall excavate and remove selected areas of impacted parking ramp soils ("hot spots") that have already been placed at the Subject Property as fill. 2. The City agrees to conduct any soil testing that may be required by the IDNR after excavation in the "hot spot" areas has been completed. 3. The City further agrees to backfill the excavated areas with materials excavated from the work face of the existing fill area at the Subject Property. 4. Subject to the conditions set forth herein, the City, through its employees, agents and contractors, agrees to conduct all soil testing, monitoring, or remediation activities that may be required by IDNR in the future for the Subject Property. The aforementioned agreement regarding such future soil testing, monitoring and/or remediation is subject to the following conditions precedent: a. such activities are required due to a condition at the Subject Property solely caused by the parking ramp soils; b. applicable Iowa environmental laws and/or regulations require such soil testing, monitoring and/or remediation; c. Stewart grants the City access to the Subject Property, as otherwise described herein to conduct the required and related activities, including without limitation, obtaining background sample of the existing native soil and groundwater. d. Any alteration or redevelopment of the Subject Property that results in disturbance of the surface and subsurface conditions after completion of the work described herein shall terminate the obligations of the. City under this paragraph 4. Mr. Wayne C. Stewart April 28, 2009 Page 3 ACCESS TO TfiE Sl1SJECT PR®PETY The City, its employees, agents and contractors, require access to the Subject Property at all reasonable times without prior notice to Stewart to conduct activities as may be necessary, in the City's sole discretion, for the work described herein, including, but not limited to, the following: 1) excavation and removal of some parking ramp soils; 2) testing of the soils at the Subject Property; and 3) backfilling using material from the Subject Property. Stewart has requested that the City perform said activities. Stewart and the City therefore agree as follows: 1. The City and its employees, agents and contractors, shall be permitted to enter upon the Subject Property for the purposes aforesaid. 2. The rights and privileges granted by this Agreement to the City, its employees, agents, and contractors, for the use of the Subject Property, shall cease and terminate following completion of said activities as determined by the City. 3. The City, its employees, agents and contractors, agree that they shall: a) not traverse on any other portion of the lands owned by Stewart not subject to this Agreement, unless necessary; b) perform the work in a good and workmanlike manner; and c) leave in place after the completion of the work any gravel or similar material that was placed as necessary to improve the surface of the access road to the excavation area in order to complete the work. 4. The City, its employees, agents and contractors, further agree that the grant of this right of entry onto the Subject Property for the purposes aforesaid shall not unreasonably interfere with Stewart's access to the property, to the extent such access is known by the City. RELEASE 1. Release Sv The City t® Stewart The City, on its own behalf and on behalf of any of its employees, agents and contractors, to the extent allowed by law, hereby fully and forever releases and discharges Stewart and its employees, agents and contractors, from the following: Mr. Wayne C. Stewart April 28, 2009 Page 4 Any and all past, and present claims, rights, causes of action, suits, obligations, duties, adjustments, damages (including, but not limited to, compensatory, punitive, exemplary, extra contractual or statutory), expenses (including, but not limited to, court costs and attorneys fees), judgments, demands, liabilities and/or losses whatsoever, whether known or unknown by the City as of the date of this Agreement, which the City ever had, or now has, which arose, or arise out of, or which involve the above-described action regarding the parking ramp soils at the Subject Property, or which were or are based upon any allegations of bad faith, or other act or failure to act by Stewart in connection with the investigation, handling, litigation or settlement of any claims, or which were made or could have been made prior to the execution of this Agreement. 2. Release i3y Stewart t® 'The City Stewart, on its own behalf and on behalf of any of its employees, agents and contractors, to the extent allowed by law, hereby fully and forever releases and discharges the City and its employees, agents and contractors, from the following: Any and all past, and present claims, rights, causes of action, suits, obligations, duties, adjustments, damages (including, but not limited to, compensatory, punitive, exemplary, extra contractual or statutory), expenses (including, but not limited to, court costs and attorneys fees), judgments, demands, liabilities and/or losses whatsoever, whether known or unknown by Stewart as of the date of this Agreement, which Stewart ever had, or now has, which arose, or arise out of, or which involve the above-described action regarding the parking ramp soils at the Subject Property, or which were or are based upon any allegations of bad faith, or other act or failure to act by the City in connection with the investigation, handling, litigation or settlement of any claims, or which were made or could have been made prior to the execution of this Agreement. GENERAL PR®VISI®NS 1. The undersigned hereby represents and warrants that he is authorized to execute this Agreement on behalf of Stewart and that this Agreement, when executed by the undersigned, shall become a valid and binding obligation, enforceable in accordance with its terms. 2. This Agreement shall be binding upon the Parties hereto, their respective representatives, successors, heirs, and assigns. Mr. Wayne C. Stewart April 28, 2009 Page 5 3. Any change, amendment, or subsequent alteration to the terms of this Agreement must be in writing and signed by the Parties to be effective. 4. Nothing contained in this letter shall be construed as or deemed to be an admission of any fact, responsibility, fault, or liability as a result of the conditions at the Subject Property by either of the Parties, nor shall it be a waiver of any right, except as set forth above, by either of the Parties. 5. This Agreement shall be effective on the date of execution by Stewart and shall terminate as set forth above. 6. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 7. The law of the State of Iowa shall apply to the interpretation, validity, and enforcement of this Agreement and to the resolution of any disputes arising out of the matter set forth in this Agreement. No action arising out of or related to the interpretation or construction of this Agreement shall be brought in any venue other than Dubuque County, Iowa. 8. This Agreement supersedes any previous agreements between the Parties in reference to or related to the Subject Property only, and no prior stipulation or agreements, verbal or written, by the Parties shall be valid or enforceable insofar as they relate to the Subject Property, .unless embodied in the provisions of this Agreement. This Agreement contains the entire understanding of the Parties hereto, and no modification shall be effective unless evidenced by a subsequent duly executed written agreement. Please execute this letter in the place designated below and return a signed copy in the enclosed envelope. If you have any questions, please do not hesitate to contact me. Sincerely, Mike Van Milligen City Manager Mr. Wayne C. Stewart April 28, 2009 Page 6 IN WITNESS WHEREOF, Stewart executes this Agreement on the date set forth below. W.C. STEWART C®NSTRUCI°I®N C®MPANY DATE WITNESS DATE Sent via Certified Mail, Return Receipt