Change Order #1
Authorizing additional work in connection with the preliminary design, final design,
permitting and construction phase services of the wastewater reclamation facility
upgrade
ENGINEER:
PROJECT:
OWNER:
Metcalf
&
Eddy
WRF
Upgrade Borough
of
Mendham
3 Werner Way, Suite 310
a municipal corporation of
Lebanon, NJ 08833
the State of New Jersey
2 West Main Street
Mendham, NJ 07945
The Agreement between the Owner and Engineer for preliminary design, final design, permitting
and construction phase services of the wastewater reclamation facility upgrade, dated July ,
2005 (hereinafter, "Agreement"), is hereby amended to reflect the following changes:
1.
The total compensation to be paid by the Owner to the Engineer shall be
increased from an amount not to exceed $104,900 to an amount not to
exceed $134,700.
2.
The Scope of Work is hereby amended and expanded to include shop
drawings, resident inspection and expenses, in accordance with the
attached letter from Engineer dated August 23, 2005.
All other terms and conditions set forth in the Agreement shall remain in full force
and effect.
Approved by the Owner:
BOROUGH OF MENDHAM
By:
Maureen Massey, Clerk
Richard G. Kraft, Mayor
Approved by the Engineer:
METCALF & EDDY
By:
,Secretary
Timothy D. Bradley, Vice President
DATED:
DATED:
T\MB\ChangeOrderMetcalfEddy
AGREEMENT TO MAKE A GIFT OF LAND
FOR THE CONSTRUCTION OF A LIBRARY
THIS AGREEMENT made this ___ day of ____________, 2005
BETWEEN
MOUNT HERMON HILLS, L.L.C., a New Jersey limited liability company, having
an address c/o John and Suzanne de Neufville, P.O. Box 5357, North Branch, New Jersey
08876 ("de Neufvilles"),
AND
The BOROUGH OF MENDHAM, a municipal corporation of the State of New
Jersey, with offices at the Municipal Building, Two West Main Street, Mendham, New Jersey
07945 ("Borough") and the TOWNSHIP OF MENDHAM, a municipal corporation of the State
of New Jersey, with offices at the Township Hall, Cherry Lane, Brookside, New Jersey 07926
("Township")(collectively, the "Municipalities").
WITNESSETH
WHEREAS, the de Neufvilles intend to convey and donate as a gift a certain parcel of
land hereinafter described to the Municipalities so that the Municipalities can then ground lease
that land to the Library of the Mendhams, a New Jersey nonprofit corporation ("LOTM"), for the
construction and maintenance of a library facility thereon for use by the citizens of both
Municipalities; and
WHEREAS, to enable and support LOTM's efforts to raise funds and proceed with its
plans to construct the library, the de Neufvilles are willing to enter into this Agreement to
demonstrate their commitment to convey and donate the Property after the conditions set forth
in this Agreement have been satisfied;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and in accordance with resolutions adopted by the Borough and the Township on
________ and __________, respectively, the parties hereto for themselves, their heirs, legal
representatives, successors and assigns, hereby agree as follows:
1.
Gift
of
Land. The de Neufvilles agree to convey and donate to the
Municipalities, as a gift without consideration, by bargain and sale deed with covenants against
grantors' acts, that certain parcel of land being a portion of Block 1801, Lot 16, as shown on the
Tax Map of the Borough of Mendham, and more particularly described and depicted on
Schedules A-1 and A-2 attached hereto (the "Property"), together with an appurtenant
perpetual and non-exclusive drainage easement as described and depicted on Schedules B-1
and B-2 attached hereto for the purpose of allowing a stormwater drainage pipe and outfall and
the overland flow of stormwater runoff from the Property to the nearby stream or pond on the de
Neufvilles' retained portion of said Lot 16, provided, however, that such conveyance and
donation shall not take place until the conditions precedent set forth in this Agreement have
been satisfied. That portion of the Property depicted on Schedule A-2 as a right-of-
way/roadway connecting into the adjacent public roadway on Block 1801, Lot 16.02 shall be
improved (in accordance with Borough standards for a public roadway) and dedicated as a
public road providing access to the new library and to the portion of Block 1801, Lot 16 ("Lot
16") retained by the de Neufvilles.
2.
Acceptance
of
Gift. Each of the Municipalities agrees to adopt an
ordinance accepting the de Neufvilles' deed of gift of the Property as tenants-in-common, each
having a fifty percent (50%) undivided interest in the Property, and then enter a ground lease
with LOTM so that a library may be built on the Property. The Property is being donated, and
accepted by the Municipalities, in AS-IS condition without representation or warranty of any
nature by the de Neufvilles' as to the condition or quality of the Property or the suitability of the
Property for use as a library or for any other purpose. The Municipalities have retained
professional consultants to inspect the Property on their behalf, perform environmental due
diligence and investigations as to the condition and suitability of the land for the Municipalities'
intended purpose.
3.
Conditions Precedent to the de Neufvilles' Conveyance. Before the de
Neufvilles shall be obligated hereunder to execute and deliver a deed conveying and donating
the Property to the Municipalities, the following conditions shall have been satisfied:
a.
Subdivision. Minor subdivision approval creating the Property as
a separately conveyable lot shall have been obtained by the Borough, and the
time for appeal of the subdivision approval shall have expired without any appeal
having been taken. Said minor subdivision shall be perfected by the execution
and recording of the deed to the Property in accordance with N.J.S.A. 40:55D-47.
b.
Library
Construction
Funding. The Municipalities shall be
satisfied, and represent to the de Neufvilles, that LOTM shall have received cash
or pledges sufficient to pay seventy-five percent (75%) of the architect's
estimated construction costs for the shell of a finished, but unfurnished, library
building for which a certificate of occupancy could be issued. The Municipalities
shall advise the de Neufvilles in writing when this level of funding has been
achieved.
c.
Credit Towards Future Cluster Development. The Borough shall
have adopted a ordinance (and the appeal period for same shall have expired
without an appeal having been taken) amending §215-14.G.(1) of the Mendham
Borough Zoning Ordinance to create a subsection (d) thereof allowing a density
bonus of one additional unit for each five acres of land dedicated to the
Municipalities for public use purposes in connection with an application for
subdivision and/or site plan approval of the future development of the retained
portion of Lot 16 and allowing such bonus even if such dedication precedes said
development application ; provided that such application is filed within a ten-year
period after the dedication of the Property to the Municipalities in accordance
herewith.
d.
N.J.D.E.P.
Permits. The final, non-appealable permits needed
from the New Jersey Department of Environmental Protection to build the library
and the access road to the library (including, but not limited to, wetlands general
permits, transition area waivers, stream encroachment permits and special
resource protection area waivers) shall have been received, and no permit shall
contain a condition precluding the further extension or utilization of the access
road to serve the remainder of Lot 16 and adjacent parcels for development of
that land consistent with the currently existing Borough zoning ordinance.
e.
Access
Road. The parties shall have agreed upon the location,
alignment and standards for the public access road to the library and shall be
satisfied that such public access road will provide access to the remainder of Lot
16 for development of that land consistent with the existing Borough zoning
ordinance.
f.
Ground
Lease. The Municipalities and LOTM shall have agreed
upon the terms and conditions of the ground lease of the Property for the library
facility and shall have adopted appropriate ordinances approving the execution of
the same contingent upon the occurrence of the land donation contemplated
herein.
If the forgoing conditions precedent have not been satisfied by July 1, 2007, or such later date
as is specified in writing by the parties hereto, then this Agreement shall terminate and the de
Neufvilles shall have no further obligation hereunder.
4.
Good
Title;
Closing. Title to the Property to be conveyed by the de
Neufvilles shall be a good and marketable fee simple title, insurable at regular rates by a title
insurance company selected by the Municipalities and shall be conveyed free and clear of all
liens, encumbrances, tenancies and rights of any nature except for the deed restriction
referenced in paragraph 5 below and such other encumbrances as are acceptable to by the
Municipalities. The closing of title to the Property in accordance herewith shall occur at the
offices of Pitney Hardin, LLP, 200 Campus Drive, Florham Park, New Jersey, or such other
location as the parties may designate, on or before the first business day which is thirty (30)
days after satisfaction of all of the conditions precedent to the conveyance of the Property set
forth in paragraph 3 above. If the de Neufvilles' are unable to convey title to the Property in
accordance with the foregoing, the Municipalities' sole right and remedy shall be to decline the
donation and terminate this Agreement.
5.
Deed Restriction If Property Is Not Used as a Library. The deed for the
Property shall contain, and the Municipalities' title shall be subject to, a deed restriction running
with the land which will require that the Property be used exclusively for a public library but, in
the event that LOTM, as the ground lessee, and the Municipalities, as ground lessors,
reasonably determine that the operation of a joint public library in the Borough is no longer
feasible, the Property shall be used for a similar public purpose which advances the cultural,
historic preservation or environmental preservation interests of the public. Under no
circumstances shall the Property be used for a Department of Public Works facility, police
station or emergency service facility, or storage facility of any kind; and no parking of
maintenance or construction vehicles or police, fire or emergency service vehicles shall be
permitted thereon, except temporarily in the event of an emergency. The right to enforce the
deed restriction may be assigned by the de Neufvilles to the New Jersey Conservation
Foundation or a similar non-profit cultural, historical or environmental preservation organization.
6.
Pond
Modification. The parties hereto acknowledge and agree that the
pond located near the Property and into which stormwater runoff from the Property will flow
pursuant to the drainage easement described and depicted in Schedules B-1 and B-2 may be
modified or eliminated by the de Neufvilles or their successors-in-title to Lot 16 in the process of
complying with dam safety and other environmental regulations and nothing contained herein or
in the drainage easement referenced hereinabove shall obligate the de Neufvilles to retain the
pond or limit their rights to modify or eliminate the same in compliance with applicable laws and
regulations. If such pond modification work is undertaken by said owner of Lot 16, such work
shall be performed so as to avoid any material adverse impact to the drainage facilities and
other improvements installed by LOTM to serve the library facility constructed on the Property.
The Municipalities agree to interpose no objection to any such pond modification work which
causes no material adverse impact to the library improvements and to execute such consents to
such pond modification work as may be requested by said owner of Lot 16 in connection with
the permitting of such work. The Municipalities shall likewise require LOTM to consent to such
pond modification work through an appropriate covenant in the ground lease.
7.
Assignment. This Agreement may not be assigned by the Municipalities
without the prior written consent of the de Neufvilles, which consent may withheld for any
reason and in their sole discretion.
8.
Amendments: This Agreement may not be modified or amended except
by a written agreement executed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
MOUNT
HERMON
HILLS,
L.L.C.
By:
_____________________________
John de Neufvil e, Member
By:
_____________________________
Suzanne de Neufvil e, Member
ATTEST:
BOROUGH
OF
MENDHAM,
IN THE COUNTY OF MORRIS
______ By:
_____________________________
Maureen Massey, Borough Clerk
Richard G. Kraft, Mayor
(SEAL)
ATTEST:
TOWNSHIP OF MENDHAM,
IN THE COUNTY OF MORRIS
______ By:
____________________________
Penny Newell, Township Clerk
Richard Krieg, Mayor
(SEAL)
AGREEMENT
THIS
AGREEMENT, made this day of , 2005, by and between:
BOROUGH OF MENDHAM,
a municipal corporation of
the State of New Jersey, with offices at the Municipal
Building, Two West Main Street, Mendham, New Jersey
07945,
(Hereinafter,
"Borough")
and:
FRANK R. HOLTAWAY & SON, INC., with offices at 1691
Route 206, Bedminster, New Jersey 07921,
(Hereinafter,
"Engineer")
W I T N E S S E T H :
WHEREAS, the Borough of Mendham wishes to retain the services of an
engineering firm to provide professional engineering services for the construction phase
of the Fire Department, First Aid Department and Police Station Standby Power
Systems; and
WHEREAS, N.J.S.A. 40A:11-1, et seq. requires that all contracts be in
writing; and
WHEREAS, the Borough has agreed to retain Frank R. Holtaway & Son,
Inc. to provide the above-referenced services.
NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants and
agreements herein contained, the parties hereto, for themselves, their successors and
assigns, hereby agree as follows:
1.
The Borough agrees to retain the Engineer to provide professional
engineering services for the construction phase of the Fire Department, First Aid
Department and Police Station Standby Power Systems as outlined in the Engineer's
proposal dated August 30, 2005, attached hereto as Exhibit "A".
2.
The Engineer shall be compensated in accordance with the fees
established in the attached proposal. Payment shall be made to the Engineer upon
submission of vouchers to be provided by the Borough. The Engineer shall not be
entitled to interest on payments that are past due or any collection costs incurred as a
result of this Agreement. In no event shall the total compensation to be paid by the
Borough exceed $3,500.00 unless the Borough Council, by Resolution, specifically
authorizes such additional compensation.
3.
The Engineer shall also be entitled to reimbursement for all
disbursements made on behalf of the Borough.
4.
The Engineer shall furnish the Borough with a Certificate of
Insurance which shall clearly show that policies with the following limits of liability will be
in effect for the duration of this agreement:
Professional
Liability:
$1,000,000 each claim
General Liability:
$1,000,000 per occurrence, for bodily injury
and property damage.
Automobile:
$1,000,000 per occurrence, combined single
limit for bodily injury and property damage.
Worker's Compensation: Statutory
coverage
Umbrella: $2,000,000
The Certificate of Insurance must clearly indicate that the Borough has
been included as an additional insured on the Engineer's commercial general liability
and automobile liability policies and shall contain a 30-day prior notice of cancellation to
the Borough.
5.
The Engineer agrees to indemnify and save harmless the Borough,
its officers, employees and agents, and each and every one of them, from and against
any and all claims, suits, costs, expenses, fees (including legal fees), and from all
damages of every kind and description by reason of the injury or death of any person or
persons or by reason of property damage to any property caused by the negligent acts,
errors or omissions of the Engineer or its subcontractors or the officers, agents or
employees of either while engaged in the performance of this Agreement.
The Engineer specifically agrees that this obligation to indemnify and hold
the Borough harmless shall include the responsibility to reimburse the Borough for any
and all reasonable costs, expenses, fees (including legal fees in defense of any claim),
and all damages of every kind and description which arise out of the Engineer's
negligent acts, errors or omissions relative to the performance of this Agreement.
6.
During the term of this agreement, the parties hereto agree to
comply with the Affirmative Action requirements set forth in N.J.A.C. 17:27, and hereby
incorporate by reference the mandatory Affirmative Action language set forth in
Schedule "D", attached hereto and made a part hereof.
7.
Upon breach of this Agreement, the other party shall have the right
to terminate the Agreement by written notice sent by certified mail to the address set out
in this Agreement. In the event of such termination, the Borough shall be entitled to all
finished and unfinished data, maps, reports, and plans covered by or related to this
Agreement upon payment by the Borough to the Engineer for services performed up to
the termination date. Failure of either party to terminate upon occurrence of any breach
shall not constitute a waiver of any provision of this Agreement.
8.
The term of this Agreement shall be for one year unless sooner
terminated by either party upon 90 days' prior written notice.
9.
This Agreement is not assignable by either party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ATTEST:
BOROUGH
OF
MENDHAM
By:
Maureen Massey, Clerk
Richard G. Kraft, Mayor
ATTEST:
FRANK R. HOLTAWAY & SON, INC.
By:
Russel
Sakowych,
President