Loading...
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 2 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 4