Facts:
As to the hazardous materials contaminating the site soils (the contamination was not disclosed by the contract documents) Ithinkican and Dimwit defend on the basis that ownership of excess materials on the site “is the contractor’s” and that the contractor is obligated to remove and dispose of the excess material in a legal manner. Accordingly, Dimwit has refused to issue a change order for disposal of the contaminated soils because Wackinsmack is obligated to remove and dispose of it in a legal manner. Thus, Wackinsmack should have made provisions in its bid price to dispose of the hazardous materials at a Class II landfill as part of its bid. It is noted that the contamination was caused by Dimwit’s disposal, on site, of contaminated ash from the incinerator before construction started. It is further noted that the incinerated ash looks like fine grained brown sand and was intermixed with existing “clean” site soils.
Assignment:
Please draft a letter to Dimwit responding to Dimwit’s position that Wackinsmack is obligated to remove and dispose of the excess contaminated soil materials as part of its base contract obligations (ie. Dimwit’s view that the disposal is not an extra), and asserting Wackinsmack’s position that it is entitled to a time and price adjustment to its contract.