2005-127RESOLUTION NO. 2005-127
RESOLUTION AUTHORIZING CONTRACT FOR USE
OF GROUNDWATER MODEL
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on the 12th
day of September, 2005, at 7:30 P.M.
The meeting was called to order by Joseph Ruggiero, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor - Joseph Ruggiero
Council Members - Robert L. Valdati
Vincent F. Bettina
Joseph P. Paoloni
Maureen McCarthy
ABSENT:
The following Resolution was introduced by Mr. Bettina and seconded by
Ms. McCarthy
WHEREAS, ExxonMobil has developed, through its consultant, Woodard and Curran
("W&C"), a Groundwater Model; and
WHEREAS, the Town would like to use the model for the purpose of analyzing well
head protection zones for its well head protection program; and
WHEREAS, ExxonMobil has agreed to allow the Town to use the Groundwater Model
in accordance with the terms and conditions set forth in the Letter Agreement dated August 25,
2005, a copy of which is attached hereto marked and designated Exhibit "I".
NOW, THEREFORE, BE IT RESOLVED,
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board Members have familiarized themselves with the contents of the
Letter Agreement dated August 25, 2005, understand the terms and conditions stated therein and
agree to the terms and conditions stated therein by and on behalf of the Town.
3. The Town Board hereby authorizes Supervisor Joseph Ruggiero to execute the
Agreement by and on behalf of the Town of Wappinger, which Agreement will authorize the
Town of Wappinger to use the ExxonMobil developed Groundwater Model in accordance with
the terms and conditions set forth in the Letter Agreement dated August 25, 2005.
The foregoing was put to a vote which resulted as follows:
JOSEPH RUGGIERO, Supervisor
ROBERT L. VALDATI, Councilman
VINCENT F. BETTINA, Councilman
JOSEPH P. PAOLONI, Councilman
MAUREEN MCCARTHY, Councilwoman
Dated: Wappingers Falls, New York
September 12, 2005
Voting Aye
Voting Aye
Voting Aye
Voting Aye
Voting Aye
The Resolution is hereby duly declared adopted.
HN C. M STERSON, TOWN CLERK
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C:\Documents and Settings\Gina.WAPPINGER\Local Settings\Temporary Internet Files\OLK1A\CONTRACT FOR USE OF
GROUNDWATER MODEL.doc
ExxonMobil
. Refining & Supply Company
Global Remediation
Inwood Terminal
464 Doughty Boulevard
Inwood, New York 11096
° 'lVE
AUb 2�
SUPERVISORS OFFICE
TOWN OF WAPP1f\lOER
Mr. Joseph Ruggerio
Town Supervisor
Town of Wappinger Falls
20 Middlebush Street
Wappinger Falls, NY 12590
EWonMobil
R-P.6ning & Supply
August 25, 2005
Re: Use of ExxonMobil Groundwater Model for Well Head Protection Analysis for the Town of
Wappinger Falls, NY.
Dear Mr. Ruggerio
As you know, the Town of Wappinger Falls, New York (the "Town") has asked ExxonMobil for access
to and the right to use an ExxonMobil developed Groundwater Model. This model was developed at
significant cost to ExxonMobil and is an intellectual property right that is owned exclusively by
ExxonMobil and its consultant Woodard & Curran ("W&C"). We understand that the Town would like
to use the model for the purpose of analyzing well head protection zones for its Wellhead Protection
Program.
This letter agreement (the "Agreement") responds to the Town's request and sets forth the rights and
limitations that ExxonMobil is allowing and granting the Town with respect to using the model, and the
specific circumstances under which these rights are being granted. We are also sending this letter to the
Town's current consultants (Leggette, Brashears, and Graham ("LB&G") of Trumbull, Connecticut),
because we understand that the model may be used by LB&G to assist the Town. All of the rights and
limitations that apply to the Town will also apply to LB&G. Assuming the terms set forth in this letter
are acceptable, the Town and LB&G must sign this letter and return it to my attention. We will then
provide the model for the limited use granted.
Terms and Conditions
ExxonMobil authorizes the Town to use the groundwater model constructed by ExxonMobil's
consultants (Woodard & Curran) for the purposes of:
1. Analyzing current well head protection zones within the Town's current borders (as of July 25,
2005);
lIi
2. Performing simulations to establish well head protection zones under the current pumping rates,
and
3. Performing simulations to establish well head protection zones based on permitted withdrawals
for existing wells in the Atlas Well Field.
Limitations
1. ExxonMobil is granting this limited use for these purposes only on a one time basis until the
Town completes its well head protection program. At the end of the use, the Town and its
consultants must return all copies of the model (CD) supplied.
2. Neither the Town, nor LB&G may retain any version of the model;
3. The Town nor its consultants will acquire any ownership rights in this model and may not reuse
it for any other purpose.
4. Neither the Town nor its consultants may use this model or modify this model as a basis for a
similar model that can be reused for similar purposes.
5. Neither the Town nor its consultant may reuse, market, sell or provide this model to any other
entity or Town.
Assuming these terms are acceptable, the groundwater model that will be provided will be a full version
that will allow changing the various parameters used to calibrate the model.
Notice of Infringement
The Town agrees to give notice immediately to both ExxonMobil and W&C of any knowledge it has
concerning any infringement of ExxonMobil's or W&C's proprietary rights, whether by the Town's or
LB&G's employees or third parties.
Enforceability
Any term that is void, illegal, or unenforceable, is ineffective or severable from this Agreement without
invalidating the remaining terms of the Agreement.
No Waiver
Failure or delay in exercising any right does not prevent a party from later demanding full and exact
compliance with the Agreement. A term of this Agreement can only be waived by a specific release in
writing.
Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York
and the United States of America.
Written Modification
This Agreement may be modified only by written agreement duly signed by persons authorized to sign
such agreements on behalf of the parties.
Entire Agreement
The terms and conditions herein constitute the entire agreement between the parties and supersede all
previous communications, proposals, representations and agreements, whether oral or written, relating to
the subject matter of this Agreement.
Liability Limitation for ExxonMobil and Woodard & Curran
Because the Town and LB&G will have the ability to modify the model and neither ExxonMobil nor
Woodard & Curran can ensure that the model will be used in a manner consistent with its calibration,
ExxonMobil and its consultant will retain no liability for the use of the model once it is provided to the
Town and LB&G.
In addition, ExxonMobil and its consultant retain all rights to the model and any derived work product.
By using the model, the Town and its consultants, agree not to publish any portion of the model or any
derived work product without the express written consent of ExxonMobil and its consultant.
Indemnification, Hold Harmless, and Duty to Defend
The Town and LB&G agree to indemnify and hold ExxonMobil and Woodard & Curran harmless for any
all liability related in anyway to the use of the model. The indemnification includes, but is not limited to
the duty to defend and pay all damages including attorneys' fees.
Because there is no adequate way to measure damages to ExxonMobil and Woodard Curran in the event
of breach of the limited use, The Town and LB&G will immediately be enjoined from all current and
future uses, this agreement will be null and void, and the Town and LB&G will be jointly and severally
liable to ExxonMobil and Woodard & Curran for the lump sum amount of $40,000.
We trust the Town and its consultant appreciate ExxonMobil's allowance of the right to use its
intellectual property and the need to set forth the terms under which those rights are being granted at no
cost. If this letter is acceptable, please sign and return executed copies to my attention. On behalf of
ExxonMobil and Woodard & Curran, we are pleased to be able to provide this service to Wappinger
Falls, New York.
Sincerely,
Steve P.,
Agreed:
Agreed:
Agreed:
Town of Wappingers
By:
Its:
Dated:
LB&G
By:
Its:
Dated:
Woodard & Curran
By:
Its:
Dated:
cc: Ken Taylor — LB&G
Jason House - Woodard & Curran
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