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Signed Contracts_Water Pollution Control Plant Update_Change Order #5Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Manager FROM: Steve Sampson Brown, Project Manager SUBJECT: Water Pollution Control Plant Upgrade Project DATE: February 9, 2011 Attachs. Dubuque All-America Cily 1111 f 2007 Attached is Change Order No. 5 in accordance with the letter dated February 1, 2011 between Miron Construction, Inc. and the City for the Water Pollution Control Plant (WPCP) Modifications Project. This is a supplement to: Item 2a including in Change Order No. 2 which added $250,000 to the contract price for mercury- related clean -up costs; and Change Order No. 4 that added another $250,000 to the contract price for mercury- related clean -up costs. Change Order No. 5 of $1,000,000 relates to the following mercury- related activities: - $1,000,000 City authorized Contractor to increase the contract limits with North Shore Environmental Construction to $2,000,000 for services related to mercury clean - and also agreed to reimburse Contractor for 100 percent (100 %) of the cost of that work via change order to the contract. This change order has been reviewed and approved by City Attorney Barry Lindahl. ACTION TO BE TAKEN The execution of Change Order No. 5 of the Miron Construction, Inc. contract is requested. STRAND ASSOCIATES. INC.* E N G I N E E R S 910 West Wingra Drive Madison, WI 53715 Phone: 608-251-4843 Fax: 608-251-8655 Office Locations Madison, WI Joliet, IL Louisville, KY Lexington, KY Mobile, AL Columbus, IN Columbus, OH Indianapolis, IN Milwaukee, WI Cincinnati, OH Phoenix, AZ www.strand.com February 3, 2011 CHANGE ORDER NO. 5 PROJECT: OWNER: CONTRACT: CONTRACTOR: Water Pollution Control Plant Modifications City of Dubuque 1 -2010 Miron Construction Co., Inc. Description of Change 5a This is a supplement to item 2a included in Change ADD Order No. 2 and item 4a in Change Order No. 4. In accordance with the letter from DeWitt Ross & Stevens S.C. to the Dubuque City Attorney dated February 1, 2011 (attached), Owner agrees to pay 100 percent of the mercury- related cleanup costs in excess of $1 million through change order to this Construction Contract 1 -2010. This change order includes $1 million in addition to the amounts previously included by change order, which equates to a total mercury- related cleanup cost of $2 million. If the total cost of the mercury cleanup exceeds $2 million, the parties will execute a future change order to the contract. In addition, if the total cost is less then $2 million, a deductive change order will be executed. The total cost of this work is undefined at this time, and the responsibility for this work is also contested. Both Contractor and Owner have filed claims that relate to this change, and execution of this change order is not an admission by the Owner of any responsibility for the mercury spill or for any of the cleanup costs and related expenses. TOTAL VALUE OF THIS CHANGE ORDER: GWT:skb \S:\MAD \1100 -- 1199 \1154 \023 \Wrd \Change Orders \CO 5.mercury#3.docx F FEB 0 4 2011 MIRON CONSTRUCTiOra COMPANY INC ADD $ $1,000,000 sa STRAND ASSOCIATES. INC.. E N G I N E E R S City of Dubuque —Miron Construction Co., Inc. Contract 1 -2010, Change Order No. 5 Page 2 February 3, 2011 Contract Price Adjustment Original Contract Price Previous Change Order Adjustments Adjustment in Contract Price this Change Order Current Contract Price including this Change Order Contract Completion Date Adjustment Original Contract Completion Date Contract Completion Date Adjustments due to previous Change Orders Contract Completion Date Adjustments due to this Change Order Current Contract Completion Date including all Change Orders This document shall become a supplement to the Contract and all provisions will apply hereto. The total cost of this work may be undefined at this time, and the responsibility for this work is also contested. Both Contractor and Owner have filed claims that relate to this change, and execution of this change order is not an admission by the Owner of any responsibility for the `` ssI ,, mercury spill or for any of the clean up costs and related expenses. ' .(aCOMMENDED = WIRTZ i z j i , (7.4)1( 16137 n,.. Z/ • ' GINEER—Strand Assoo1at Inc. Date APPROVED c , CONTRACT IZ —Miron Construction nstruction Co., Inc. APPROVED OWNER —City of Dubuque GWT:Ir \S:\MAD \1100 -- 1199 \I 154 \023 \Wrd \Change Orders \CO 5.mercury#3.docx z-(4/t( Date ate $49,750,000 $ 1,121,603 $ 1,000,000 $51,871,603 August 31, 2013 None None August 31, 2013 ROSS \\ C ROSS &STE ITE. 4 W F• N N www dewdtross.com February 1, 2011 Barry Lindahl City Attorney City of Dubuque 50 West 13 Street Dubuque, IA 52001 RE: Mercury Remediation Dubuque Water Pollution Control Plant Dubuque, Iowa Dear Barry: Capitol Square Office Two East Mifflin Street Suite 600 Madison, WI 53703 -2865 Tel 608.255 -8891 Fax 608 -252 -9243 Please respond to: Capitd Square Office Dired line: 608-2529353 Email: vem@danittross.com Metro Milwaukee Office 13935 Bishop's Drive Suite 300 Brookfield, WI 53005 -6605 Tel 262- 754 -2840 Fax 262 -754 -2845 We are documenting our position expressed at the January 25, 2011 meeting with the City and further correspondence I sent on January 26, 2011. Miron's October 14, 2010 correspondence to the City was an initial device to continue remediation of the original spill and Project activities with as little delay as possible. The original 50/50 cost sharing split in that correspondence was never deemed a determination of the parties' assessment of their respective liability at that point. The latest facts indicate high levels of undisclosed historical mercury are present in sediment throughout the tanks, possibly in influent and effluent pipes, and in areas outside the tanks which were never affected by the September 23, 2010 spill. The scope of the necessary remediation due to the presence of this historical mercury has been dramatically increased. Miron disclaims any responsibility for any remediation of mercury on the Project. Miron further asserts that dispute resolution processes related to this matter through a mediator appointed by the AAA must immediately go forward. Our position is clear — we need not wait for Strand to make any determination under the original Agreement language. Please let us know the City's position on this contention. Miron confirms that each party maintains its right to assert that responsibility for the September 23, 2010 spill and the historical mercury found at the site lies with the other party or its agents, and that the City's agreement to fund 100% of the ongoing remediation costs is not its assessment of its respective liability at this point. DEWITT ROSS &STEVENS. L A W F 1 k M Barry Lindahl February 1, 2011 Page 2 This letter serves as the addendum to Jonathan Daniels' October 14, 2010 correspondence to Steve Brown, and the October 15, 2010 reply from Mr. Brown. Further, this letter may serve as the basis for Change Order No. 5 in lieu of Mr. Randy Wirtz's proposed reference to your January 26, 2011 email correspondence in his initial draft of same. Please feel free to contact me to further discuss these issues. Thank you. Sincerely, DEWITT ROSS & STEVENS s.c. /S/ William E. McCardell WEM:kjs cc: Dave Voss (via email only) Dean Basten (via email only) Royce Alsbach (via email only) Tim Kippenhan (via email only) Jonathan Daniels (via email only)