Signed Contract_Parking Ramp Soil Agremeent, W C Stewart Constructiont~
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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
THE CITY OF
DUB E
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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:
REMOVAL AND REPLACEMENT OF PARKING RAMP SOILS
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 THE SUBJECT PROPERTY
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:
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 By The City to 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 By Stewart to 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 PROVISIONS
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
below.
IN WITNESS WHEREOF, Stewart executes this Agreement on the date set forth
W.C./STEWART CO STRUCTIO OMPANY
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WITNESS
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Sent via Certified Mail, Return Receipt