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Grey Stone- Proposed Contract Agreement VERGILIS, STENGER, ROBERTS, PERGAMENT & VIGLOTTI,LLP ATTORNEYS AND COUNSELORS AT LAW 1136 ROUTE 9 WAPPINGERS FALLS,NEW YORK 12590 (845)298-2000 GERALD A.VERGILIS* FAX(845)298-2842 OF COUNSEL: KENNETH M.STENGER IRA A.PERGAMENT ALBERT P.ROBERTS e-mail:VSRP*BestWeb.net LEGAL ASSISTANTS: LOUIS J.VIGLOTTI AMY E.DECARLO JOAN F_GARRETT** LISA MARTELL THOMAS R.DAVIS POUGHKEEPSIE OMCE PHILIP GIAMPORTONE 276 MAIN MALS. KAREN P.MACNISH POUGHKEEPSIE,NY 12601 VINCENT FILARDO,JR- (845)452-1046 ` PRACTICE IN NY i'®&FLA. ADDRESS REPLY TO:( )POUGHKF.EPSIS IN NY _ ( ]WAPPLNGERS —ADM i==DTO?FACIICE . IN NY&CONN. - VIA EMAIL AND REGULAR MAIL June 4, 2002 - Hon. Joseph Ruggiero, Supervisor Town of Wappinger 20 Middlebush Road Wappingers Falls,New York 12590 Re: Greystone Project "Contract Agreement' File No. 12951.0574 Dear Joe: Attached please find the proposed"Contract Agreement" submitted with the proposal for professional senvices by J: KiDniieth Fraser and Associates, 1 hate the foiiowing comments: • Paragraph B (2): Reimbursement for "-meals, lodging and travel" I would suggest that this only be done upon prior approval of the Town Board. a Paragraph B (2): Other expenses "including outside consultants, material testing bond premiums, title company charges, application fees .... invoiced at cost plus a 10%service fee" I recommend that this sentence be deleted in its entirety. I bL,lieve the Town's other professionals merely charge the costs as incurred. This could become extremely expensive and is unnecessary. 0:1WAPPiNGE',,TwA,n Board`Grevstone10c-002-7R.doc • Paragraph B_ 20: "1.5%" late fee per month I recommend against this charge. • Paragraph B (3): Requires Town to notify within "10 days of receipt of invoice"if it disagrees with the invoice I recommend that it be increased to within 20 days. • Paragraph B (4): Requires indemnification by the Town I strongly recommend against this. • Paragraph B (4): There is also a provision for premature project demobilization and remobilization charges I strongly recommend that this be stricken in its entirety. • Paragraph B (5): Requires mediation or arbitration in the event of a dispute I have no preference either way, however, my experience has been that mediators and arbitrators are more inclined to split the difference than would a Court. Mediation-and/or arbitration generally produce quicker results. • P_ aragraph D (2): "Standard Terms"attached to Contract Agreement named "Ownership of Documents"—the Town cannot use the materials on other projects without JKF's consent nor can the Town release the data without JKF s authorization. I strongly recommend that this issue by clarified, particularly since the end product is going to be a plan that will be used by subsequent Town Boards, and perhaps the Planning Board and Committees formed by the Town Board • Paragraph D (6): "Standard Terms"attached to Contract Agreement "Termination" This clause shouid be scrutinized very carefully. I recommend that termination can be accomplished by either party on 30 day written notice and by payment in full for the work in progress through date of such notice. • PaM&, aph D (8): "Standard Terms"attached to Contract Agreement Litigation"— the cost of litigation to be borne by the Town. I strongly recommend against this clause. Substitute with "the prevailing party shall be entitled to reimbursement fbr all the costs of litigation including attorney's fees, witness fees, costs and disbursements." * Paragraph D I9): `-`Standard Terris" attached to Contract Agreement -.Replacement of Survey Stakes" This clause is not needed. O.\WAPYINGE',Totir.Baard\Greystone1053002-JR.doc 4 • Paragraph D (10): "Standard Terms"attached to Contract Agreement "Observation and Testing of Construction, Safety" This clause is not needed. • Paragraph D (12): "Standard Terms" attached to Contract Agreement "Limits of Professional Liability"-If the Town wishes to increase limits to $1,000,000 there is an increase of S% of the total compensation (almost S1 S,000). I strongly question the propriety of this clause. • Paragraph D (17): "Standard Terms',attached to Contract Agreement "Hazardous Materials" if hazardous materials are found on site,it will require the Town and JKF to adjust the terms and conditions of the Contract. • Paragraph D (20): "Standard Terms"attached to Contract Agreement "Renovation/Rehabilitation of Existing Buildings" Since a substantial portion of this work would be to review the condition and projected costs of renovations and potential future uses of the several buildings on site, including the mansion, I strongly recommend that this paragraph be scrutinized and that we receive input from Jay Paggi as to additional terms that may be needed. I would like to discuss this Contract Agreement at your earliest convenience. Very truly yours, ASSTENGER, ROBERTS, PERGAMENT &VIGLOTTI, LLP ROBERTS APR/bg Enclosure—Copy of Contract Agreement Cc w'enclosure: Hon. Gloria Morse, Town Clerk Town Board File Joseph E. Paggi, Jr., P.E. 0:1WA.PPINGE\Town Board'!Grevstone10530024R.doc CONTRACT AGREEMENT oris is an Agreerneni made as of May 16. 2002, between the Town of Wappinger, NY which is a Muncipaiity(hereinafter Called the CLIENT},and J Fraser and Associates, PE, LS, LA. P.0, which is a Professional Corporation registered in New York State,and which is authorized to da business Pe Commonwealth or Massachusetts. State W Vermont and the State of Florida(hereinafter called JKF). CLIENT and JKF.for the mutual consideration hereinafter set forth,agree as follows-provide the Scope of Services relative to the Greystone Estate contained in the May 10,2002 proposal. That Scope of Services is amended to and made part of this agreement. CLIENT agrees to pay JKF as compensation for services the fee identified in the Compensation section of the May 10,2002 proposal_ 1 CLIENT,shall reimburse JKF for the actual cost of all travel-related expenses(including but not limited to meals, lodging,transportation)for project related work performed away from JKF's office. CLIENT shall reimburse JKF for other project related expenses, including but not limited to,prints and reproduction costs,shipping,survey monuments,computer charges,at charged rates. Telephone toll charges shalf be invoiced at fixed rates_ Other expenses,including but not limited to,outside consultants,materials testing, bond premiu charges,application fees,permits,shall be invoiced at cost plus a 10°o service fee for handling and administration. ms,title company 2. Fees and other charges will be invoiced monthly_ The amount of each invoice shall be due at the time of billing. When bills are not pai- within 30 days,a late pavment.service charge will be charged on any unpaid.bralartce at the rate of 1,50, cam 1 rate allowable under applicable State law, pounded monthly or the highest 3. In the event any invoice or portion thereof is disputed by CLIENT,CLIENT shat notify JKF in writing within 10 days of receipt of the invoice in question. Such written notice shall clearly indicate the portion of the invoice the CLIENT disputes and shall include a reasonably detailed JKF shall tiara r the reasonether to for the dispute. Undisputed portions of the invoice shall be payable as provided in this Paragraph B- CU ENT and JKF shat work together to resolve CL1ENTs dispute within 60 days of its being called to JKF's attention. If the resolution indicath is entitled to be paid all or any portion of such disputed amount,then such amount shall be due and ptes at JKF payable within ten days after resolution of the dispute,together with a service chbLrge thereon at the rate provided on this Contract Agreement,computed from the date such amount would have been due JKF had CLIENT not disputed such amount. If resolution of the dispute is not attained within such 60 days, either party may terminate this Contract Agreement in accordance with conditions indicated in Paragraph 6 of Standard Terms and Conditions of Agreement. 4. If CLIENT,for any reason,fails to pay the undisputed portion of JKF's invoices within 30 days of presentation and fails to pay disputed portions of JKF's invoices within 60 days of CLIENT's documentation of such dispute pursuant to Paragraph 8.4,then JKF shall cease work on the Project and CLIENT shall waive any claim against JKF and shall defend and indemnify JKF from and against any claims for injury or loss stemming from JKF's cessation of service. CLIENT shall also pay JKF the cost associated with such premature project demobilization, In the event the Project is re-mobilized, CLIENT shall also pay the cost of re-mobilization and shall re-negotiate appropriate contract terms and conditions,such as those associated with budget,schedule or scope of services. 5. Dispute Resolution Procedures:The following procedures shall be used to resolve any controversy or claim("dispute'). If any of these provisions are determined to be invalid or unenforceable,the remaining provisions shall remain in effect and binding on the parties to the fullest extent permitted by law. Mediation: A dispute shall be submitted to mediation by written notice to the other party or parties: The mediator shall be selected by Agreement of the parties. if the parties cannot agree on a mediator,a mediator shall be designated by the CPR Institute for Dispute Resolution at the request of a party. Any mediator so designated must be acceptable to all parties. The mediation shall be conducted as specified by the mediator and agreed upgp by the parties_ The parties agree to discuss their differences in good faith and to attempt,with facilitation by the mediator,tc;each art arn:dabiu,esoiution of the dispute. The mediation shall be treated as a settlement discussion and therefore shall be confidential. The mediator may not testify for either party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings_ Each party shail bear its own costs in the - mediation. The fees and expenses of the mediator shall be shared equally by the parties. Arbitration: If a dispute has not been resolved within 90 days after the written notice beginning the mediation process(or a longer period,if the parties agree to extend the mediation),the mediation shall terminate and the dispute shall be settled by arbitratior r. The arbitration will be conducted in accordance with the procedures in this document and the Rules for Non-Administered Arbitration of the CPR Institute for Dispute Resolution("Rules")as in effect on the date of the engagement letter,or such other rules and procedures as the parties may designate by mutual agreement. In the event of a conflict,the provisions of this document will control. The arbitration will be conducted before a panel of three arbitrators,two of whom are to be designated by the-parties from the CPR Panels of Distinguished Neutrals using the screened selection process provided in the Rules. Any issue Concerning the extent to which any dispute is subject to arbitration,or concerning the applicability,interpretation,or enforceability of these procedures,including any contention that all or part of these procedures are;rvalid or unenforceable,shall be governed by the Federal Arbitration Ac;and rasolved Dy the arbitrators. No potential arbitrator shall be appointed unless he or she has agreed in writing to abide and be bound by these procedures. The arbitration panel shall have no power to award non-monetary or equitable relief of any sort_ It shall also have no power to award (a) damages inconsistent with any applicable agreement between the parties or(b)punitive damages or any other damages not measured by the t to prevailing party's actual damages;and the parties expressly waive their right obtain such danzges in arbitration or in any other forum. In no even[,even if any other portion of these provisions is held to be invalid or unenforceable,shall the arbitration panel have power to make an award or impose a remeciv that could not be made or imposed by a court deciding the matter in the same jurisdictic Discovery shaii be permitted in Connection with the arbitration oniy to the extent, if any, e/pressry au.horized by the arbitration panel upon a showing of substantial need by the party seeking discovery_ All aspects of the arbitration shall be treated as confidential. The parties and the arbitration panel may disclose the existence,content or results,of the arbitration only as provided in the Rules. Before making any such disclosure. a party shall give written notice to all other pa,me.: and shall afford such partes a reasonable opportunity to protect their interests. The result of the arbitration will be binding on the parties,and judgment on the arbitration award may be entered in any court having jurisdiction. C. CLIENT shall furnish the following_reports,maps and other data applicable to the project site. D. This Agreement includes the Standard Terms and Conditions,consisting of two pages dated Dec. 1991,shown on the back of this document(or attached hereto)and incorporated herein by this reference. E. The person signing this Agreement warrants he/she has authority to sign as,or on behalf of,the CLIENT, If such person does not have such .authority,it is agreed that he/she will be personally liable for all breaches of this Agreement,and that in any action against them for breach of such warranty,a reasonable attomeys fee shall be included in any judgment rendered. EED TO: AGREED TO: of Wa in er (Clients Name) J.Kenneth Fraser and Associates PE LS LA P.C. rized Signature/Date) orized ignature/Date} Titl Vice President for Landscape Architecture and Plannin i DCC. 1()q I J. KENNETH FRASER AND ASSOCIATES, P.C. (JKF) CONSULTING ENGINEERS AND LAND SURVEYORS STANDARD TERMS AND CONDITIONS OF AGREEMENT I_EXTRAWORK: Extra work-;hall include-but not be limited to,additional office or field work caused by policy or procedural changes or governmental agencies,changes In the project-and work necessitated by any of the causes described in Paragraph 5 hereof. All extra work to be authorized by CLIENT in writing prior to commencement by JKF- 2.OWNERSHIP F.2.OWNERSHIP OF DOCUMENTS: All tracings.specifications,computations.survey notes and other original documentss as instruments ofserviceare and shall remain the property of J KF unless otherwise provided bylaw. CLIENT shall not use such items on other projects without JKFS prior written consent. JKF shall not release data without authorization, 3.LIMITATIONS OF COST ESTLMATES: Any estimate of the co guarantee of the total cost_ st of the project or any part[hereof is not to be construed,nor is it intended,as a 4.APPROVAL OF WORK.The work performed by JKF shaft be deemed approved and accepted by CLIENT'as and when invoiced unless CLIENTobjcr within 30 days of the invoice Batt by written notice specifically stating the details in which CLIENT believes such work in incomplete or defective. 5-DELAY: Any delay,default,or termination in or of the Performance ofany obligation ofJKF under this Agreement caused directly or indirectly bvstnke-,, accidents,acts of God,shortage or unavailability of labor,materials,power or transportation through normal commercial channels, failure of CLIENT or CLIENT's agents to fumish information or to approve or disapprove JKFS work promptly,late.slow or faulty performance by CLIENT,other contractors or governmental agencies,the performance of whose work is precedent to or concurrent with the performance of JKFS wort:.or any other acts of the CLIENT or any other Federal.State.or local government agency,or any other cause beyond J KFs reasonable control,shall not be deemed a breach of this Agreement- The occurrence of any such event shall suspend the obligations of JKF as long as performance is delayed or prevented thereby,and the fees due hereunder shall be equitably adjusted. E.TERMINATION: The obligation to provide further services under this Agreement may be terminated by either party upon seven(7)days written notice in the even[of substantial failure by[rte other party to perform in accordance with the terms hereof through no fault of the terminating party- In the event of any termination.JKF shall be paid for all services rendered to the date of termination.as well as for all reimbursable expenses and termination expenses. For Purposes of this section,the failure of the CLIENT to pay JKF within thirty(30)days of receipt of an invoice shall be considered such a substantial failure. in the event of a substantia[failure on the part of the CLIENT.J KF in addition to the right to terminate set forth in this paragraph,may also elect ro suspend work until the default in question has been cured. No delay or omission on the pan of JKF in exercising any right or remedy hereunder shad constitute a waiverof any such right or remedy on any future occasion. 7.INDEMNIFICATION: CLIENT shall indemnify,defend and hold JKF harmless for any and all loss,cost,expense,claim.damage,or liability ofany nature arising from: (a)soil conditions:(b)changes in plans or specifications made by CLIENT or others:(c)use by CLIENT or others of plans,surveys,or drawings unsigned by JKF or for any purpose other than the specific purpose for which they were designed:(d)job site conditions and performance of work on the project by others,(e)inaccuracy of data or information supplied by CLIENT:and(f)work performed on material or data supplied by others,unless said loss was solely caused by JKFs own negligence_ 8.LITIGATION: Should litigation be necessary to collect any portion of the amounts payable hereunder,then all costs and expenses of litigation and collection.including without limitation,fees.court costs,and attorney's fees(including such costs and fees on appeal),shall be the obligation of[he CLIENT. 9.REPLACEMENT OF SURVEY STAKES. JKF.if included in Paragraph A of the Agreement.will p ovice necessary ton;rr uction:take:: I n insrarxes where it is detennined that negligence on the part of the CLIENT or others results in the need for restaking.the cost of such restaking will be billed as an e=a to the CLIENT an a time basis- it will be the CLIENTS's responsibility to provide adequate protection of the stake..against his own negligence or the negligence of those working for or with him and against vandalism by others. If staking is ordered by the CLIENT or others prematurely and construction does not rake Place.it will also be the CLIENTS responsibility to protect said stakes until such time ax construction takes place- 10.OBSERVATION AND TESTING OF CONSTRUCTION,SAFETY: The observation and testing of constructien is not inciuded herein unless specifically agreed upon in the Scope of Services as set forth in Paragraph A of this Agreement. It should be understood that rhe presence of JKFS fieid representative will be for the purpose of providing observation and field testing. Under no circumstances is it JKFS intent C)directly control or supervise the phySical activities of the contractor's workmen to accomplish the work on this project. Therp.resence of JKFS field representative at the site is to prcvidc the CLIENT with a continuing source of information based upon the field representative's observations of the contractor's work.but does not include any superintending,supervision.or direction of the actual wort:of the contractor or the contractor's workmen_ Ttie contractor should be informed that neither the presence of JKFS field represenrative nor observation and testing personnel shall excuse the contractor in any way for defects discovered in his work. It is understood that JKF will not be responsible for job or site safety on the project. I I.RESTRJCTIONS ON USE OF REPORTS: It should be understood[hat any reports rendered under[his Agreement will be prepared in accordance with the agreed Scope of Services and pertain only to the subject project and are prepared for the exclusive use of the CLIENT. Use of the retorts and data contained therein for other purposes is at the CLIENTS sole risk and responsibility. I of a,� ICC- 1991 LINIITS OF PROFE:SS[0N:V.i.i,AlM,IT)':JKFi,al.,s pnutCtcd by Professional Liahility lnnirance. TheCLIENTagrecs to IuniI JKF< profcssu,nai iia uiiin anti reyurrc a like ELnit:uinn frnrro;;nv conuaCtor or uhce,n[ractor whu perfnrnts suck tiu whieh.fKFhas pra,sidctf rc[xm._pkans and,Feeilica Iun to anarrrnuntntS�70.O(It1„rtheR,tai,;ml,cr,,;liar,, ihiChtltri,_reatrr. Il the CLIENT prcicnnot,tniimuJKF=,lager„irm:ilfi.hilitvtothi>,um"JKF willwaivc this liul)T tMun uise,n the CLIENT, rvilu .i;m,i.,i!I a_rre m 111MrCIIC the iunit:uio❑of prulessiunai liabilit t,nhjcct u,.t:rntiard e.eClucinn„tor haiarduu, matercil,Cunt:,inekf in prutc..x,nal liahiln.inu,cmc0•I,ohcien is,uccl by I)CSiCn Profe.,ional.In,urWCc Cuinp.rm to a 11, k siren limit nt51.(if1U-(tor provided that the CLIENTa,recs eta par for this ttiai%Gran addirie,nal consideration of live(5)percent increase in the total coiupernsation. The redue.t for this option mutt be made at or bt fore the erne the contract between CLIENT and JKF is finalized. 13. CONTROLLING LAWS; This Agreement is to be governed by the laws of the State of New York. 14.INSURANCE: JKFshall procure and maintain throuehnut the period of this Agreement.at JKFs own cost,insurance for protection from claims under workers compensation,temporary_ disability and other similar insurance required by applicable State and Federal laws. Certificates for all such policies of insurance shad be provided to the CLIENT upon wrizten request. JKFshall not be responsible for any loss"damage or liability beyond the amounts.limits and conditions of Such insurance. ` 15.SUCCESSORS AND ASSIGNS: Neither CLIENT nor JKF shall assign,sublet.or transfer any rights under or interest in (including.but without limitation,moneys that may become dueormoneys thatare duel this Agreement without the written consentof theother.except to the extent that any assignment. subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. 16”CONSTRUCTION REVIEW SERVICES: The CLIENT recognizes that construction review is a vital element of JKFs complete service,provided to minimize problems during construction by permitfing detection of and/or rapid response to unanticipated or changed conditions.or ettors or omissions committed by desig;t professionals,contactors,materials providers or others. The CLIENT also.recognizes that no party is as intimately familiar with JK" eparesforandassignstoreviewingtasks. According]v.the client agrees toretain JKFtoreview construction.and JKFagrees inter[sasJKFandthosetha[JKFpr to assign to the reviewing function persons qualified to observe and report on construction of JKF recommendations,plans and specifications.and the quality of work performed by contractors•et al. The CLIENT recognizes that construction review is a technique employed to minimize the risk ofproblems arising during construction.that construction review by JKF is not insurance.and does not constitute a warranty or guarantee of any type" In all cases.contractors,et al.(that is,the general contractor,subcontractors,subsubcontractors,material-persons and others)shall retain responsibility for the quality of their work and for adhering to plans and specifications, Should the CLIENT for any reason not retain JKF to review construction or should the CLIENT unduly restrict JKF assignment of personnel to review construction.or should JKF at the direction of the CLIENT for any reason not perform construction review during the full period of construction.J KF shall not have the ability to perform a complete service. In such a case,the CLIENT waives any claim against J KF,and agrees to indemnify,defend and hold J KF harmless from any claim or liability for injury or loss arising from problems during construction that allegedly result from findings,conclusions,recommendations.plans or specifications developed by JKF. The CLIENT also agrees to compensate J KF for any time spent and expenses incurred by JKF in defense of any such slat m. with,such compensation to be based upon JKF prevailing fee schedule and expense reimbursement policy. IT HAZARDOUS MATERIALS: In the event that unanticipated potentially hazardous materials(e.g„asbestos,gasoline,fuel oiI.etc.;are encountered during the course of JKFs work.the CLIENT agrees to negotiate a revision to the scope of services,(including the retention of outside hazardous materials specialists and indemnification ofJ KF from any claim associated with services related to hazardous materials which are excluded from JKFs professional liability insurance policy)and adjust the terms and conditions of the contract. The CLIENT recognizes and accepts that the property owner 6-c..typically the CLIENT) is legally resportsible for the proper handling and disposal of hazardous materials. If a mutually satisfactory agreement cannot be reached between both parties, the con rmcr shall be terminated,and the CLIENT agrees to pay JKF for all services rendered up to the date of termination,including any costs associated with termination. 18.RIGHT OF ENTRY: The CLIENT will provide right of entry for KF staff,subcontractors and all necessary equipment in order to complete the work" JKF will take all reasonable precautions to minimize damage to the property. It is understood by the CLIENT that in the normal course of work some damage may occur,the correction of which is not part of this Agreement. 19.STANDARD OF CARE: Service performed by JKF under this Agreement will he conduced in a manner with the level of care and skill ordinarily exercised by members of the professions currently practicing under similar conditions. No other warranty,express or implied,is made. 20"RENOVATION/REHARILITATIONOFEMSTING BUILDINGS:Where the work involves remodeling and/orrehabilitation ofan existing building. CLIENT agrees that certain assumptions must be made regarding existing conditions,and because some of these assumptions may not be verifiable without expending additional sums of money.or destroying otherwise adequate or serviceable portions of the structure.CLIENT agrees Thar.except for negligence on the part of JKF•CLIENT will hold harmless.indemnify and defend JKF from and against any and all claims arising.out of the professional services provided under this Agreement. 21.SEVERABILITY: If any portion of these"Standard Terms and Conditions of Agreement"or of the Proposal for Services for this project shall for any reason be deemed invalid or unenforceable.such a determination shall not affect the other provisions of this Agreement and the Agreement shall be construed in all respec4 as Ihough such invalid or unenforceable provision or provisions were omitted" 2?NOTICES: All notices:aped for by this Contract shall be in writing and shall be deemed to have been sufficiently given or served when prevented personalty and when depasited in the mail,postage prepaid,certified and return receipt requested.addressed as follows: 1.KENNETH FRASER AND ASSOCIATES.PE-Ly,.LA.P-C. Town of Wappinger 22 High Street 20 Middiebush Road Rensselaer.New York 12 iii Wappingers Falls.NY t2590 e 2of2