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Horizon Development Expenses CITY OF DUBUQUE, IOWA MEMORANDUM February 2, 2000 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Horizon Development Group Claim--Site Remediation Expenses Community and Economic Development Director Jim Burke is recommending settlement of a claim by Horizon Development for additional site development expenses for the Cartegraph Systems building in the Dubuque Technology Park in the amount of $20,000. I concur with the recommendation and respectfully request Mayor and City Council approval. /s/ Michael C. Van Milligen Michael C. Van Milligen MCVM/dd Attachment cc: Barry Lindahl, Corporation Counsel Tim Moerman, Assistant City Manager Jim Burke, Community and Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM February 1,2000 TO: Michael Van Milligen, City Manager FROM: James Burke, Community and Economic Development Director SUBJ: Horizon Development Group Claim Site Remediation Expenses INTRODUCTION This memorandum recommends City Council approval of a settlement of a claim by Horizon Development for additional site development expenses for the CarteGraph Systems building in the Dubuque Technology Park. The City Council is requested to approve a Release Agreement related to this claim. DISCUSSION On April 30, 1999, the City closed the sale ofa lot in Dubuque Technology Park to Horizon/Ducarte, LLC., the developer for the CarteGraph Systems building. Horizon began construction of the building immediately after the closing and completed it for tenant occupancy by January 3. In the course of construction, Horizon encountered conditions on the site which required substantially more excavation and removal of poor soil and replacement with rock than they had planned. The attached letter from Tim Puis of Horizon states that while they would ordinarily expect to spend $2,000 to $3,000 for this item, they actually expended some $40,753.63. Mike Felderman from City Engineering and I visited the site in August at Horizon's request to observe the soil problem. Following this visit, Engineering reviewed the inspection reports for grading of this area and did some sampling of soil compaction. The results were inconclusive as to the cause ofthe problem. Poor grading work by Sproule Construction or later traffic through the site by Portzen Construction are the likely sources. In December, Rick Dickinson and I met with Tim Puis and John Thode of Horizon. We discussed the fact that the Development Agreement made no representations about the condition of the property and that it provided Horizon the opportunity to conduct their own engineering survey before purchase. They acknowledged this and admitted that they did not do their own soil testing, but that they were relying on a survey which was done for the City. During the course of this meeting, we said that the City could not accept complete responsibility for this problem as normal practice would have been for Horizon to have discovered the problem before construction and to adjust their plans accordingly. Developers rarely start a building project without their own soil borings based on a specific plan for construction. We offered that we would present the proposal of the City paying up to $20,000 in reimbursement for the extra site work. Following the meeting, Tim Puis called to say that Horizon would accept this. Corporation Counsel Barry Lindahl prepared the attached Release Agreement to formalize the proposed settlement. RECOMMENDATION I recommend that the City Council approve a settlement of Horizon Development's claim as described. This is based on the belief that it could be demonstrated that both parties have responsibility. Horizon should have done their own soil testing. At the same time, the problem was caused or aggravated by the City's contractor (Sproule) or a contractor the City permitted to move across the property (Portzen). Horizon has accepted this concept and is prepared to sign the City's release. ACTION STEP The Action Step is for the City Council to approve the attached Release Agreement and to direct the City Manager to execute it on behalf of the City of Dubuque. HORIZON 27 September 1999 Mr. Jim Burke City of Dubuque City Hall 50 West 13th Street Dubuque, IA 52001 Re: CarteGraph Systems, Inc. Lot 11, Block 2 - Dubuque Technology Park Site Remediation Expenses Dear Jim: Pursuant to your request, please find detailed below the expenses associated with the over- excavation required to core and fill areas of the CarteGraph Systems development site to permit installation of the building foundation and parking lot. Date Tonnage Amount 8/16/99 974.26 $12,178.25 8/17/99 16.19 202.38 8/19/99 29.77 372.13 8/26/99 834.59 10,432.38 8/27/99 1,052.15 13,151.88 8/28/99 251.16 3,139.50 8/30/99 -1Q2J.l 1 277.13 Total 3,260.29 40,753.63 . Supporting load tickets available upon request. ** All tonnage is for coring, crushed rock and fill at a cost of $12.50 per ton. As you can see, we have cored and replaced 3,260 tons of improperly placed soil at a total material expense of $40,753.00. In additional to the material costs, engineering and staff expenses have cost our company an additional $1,500.00. On a development of this size, we would anticipate core and fill costs between $2,000 and $3,000 for a virgin site. For an engineered-filled site, we would expect coring and filling to be minimal and less than a virgin site. 49 Kessel Court. Suite 211 . Madison, WI 53711 . (608) 274-1188 . FAX (608) 274-2363 1660 Embassy West Drive, Suite 250 . Dubuque, lA 52002 . (319) 556-1188 . FAX (319) 556-4890 Page Two As you are aware from your site visit on 23 August 1999, a large portion of the cored area was the portion exposed to truck traffic hauling excess material from the Advance Data Comm site to a stockpile located on the eastern side of this property at your directive. Additionally, it is apparent that the site fill was not placed in an engineered fashion resulting in soil compaction below contractual specifications, I look forward to meeting with you at your earliest possible convenience to discuss resolution of this issue, Should you have any questions in the interim, do not hesitate to contact me at 556-1188. Sincerely, HORIZON DEVELOPMENT GROUP /s/ Timothy J. Puls Vice President of Development c: Mr. Rick Dickinson, Greater Dubuque Development Corporation File tp RELEASE AGREEMENT This Release is made and entered into this 16th day of January, 2000, by and between the CITY OF DUBUQUE ("City") and HORIZON/DUCARTE, LLC ("Horizon"). WHEREAS, on April 30, 1999, Horizon purchased from Ciry real property legally described as Lot 11, Block 2 in Dubuque Technology Park (the "Properry") for the purpose of constructing a building thereon; AND WHEREAS, during construction Horizon encountered unanticipated conditions on the Property which required additional excavation and removal of soil at Horizon's cost; AND WHEREAS, Horizon has now made a claim with Ciry for the cost of the additional excavation and soil removal, which claim Ciry derries; AND WHEREAS, Ciry and Horizon now desire to settle the claim. NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS 1. Ciry agrees to reimburse Horizon for part of the cost of the additional excavation and soil removal in the amount of $20,000.00, receipt of which is hereby acknowledged by Horizon. 2. Horizon hereby releases Ciry of and from any and all claims of any kind arising out of the condition, known or unknown, of soil upon the Property; provided, however, that said release shall not include or extend to any liability of the Ciry for any environmental contamination of the Property which predates the conveyance of title thereto from the Ciry to Horizon. For purposes of this Agreement "environmental contamination" shall mean and include the presence, use, storage, deposit, spill, release, discharge, seepage or migration of any substance or material which requires clean-up, removal or some other form of remedial action under any federal, state or local laws, ordinances, codes, rules or regulations. 3. This is a settlement of a disputed claim and the parties agree that it shall not constitute an admission of any kind of either parry as to the cause of the condition of the Property nor either parry's liability or responsibility therefor. 4. This Release Agreement shall be binding on Horizon, its successors and assigns. ORIGINAL CITY OF DUBUQUE By: Michael C. Van Milligen, City Manager HORIZON/DUCARTE, LLC By: Charles V. Heath, Authorized Member