A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH AMP TO PROVIDE MONTHLY TRAINING FOR CITY EMPLOYEES.
WHEREAS, The City of Newton Falls understands the importance to departmental training and safety for all City employees; and
WHEREAS, AMP provides Safety Consultant services on a monthly basis that will establish safety program guidelines and identify workplace hazards and develop a plan to reduce hazardous conditions in the workplace in addition to conducting safety meetings and training; and
WHEREAS, The Newton Falls City Council wishes to provide these services to all employees and acknowledges the benefits of the program.
WHEREAS, Funds have been appropriated in the 2015 budget to provide essential training for employees of the City of Newton Falls.
THE COUNCIL FOR THE CITY OF NEWTON FALLS, STATE OF OHIO. HEREBY RESOLVES:
SECTION I: The City of Newton Falls City Council hereby authorizes the City Manager to enter into an agreement marked “Exhibit A” attached as if fully rewritten herein to provide safety training for City employees.
PASSED THIS 8th DAY OF SEPTEMBER 2015.
Mayor, Lyle A. Waddell
Clerk of Council
AMERICAN MUNICIPAL POWER, INC.
VILLAGE OF NEWTON FALLS
AGREEMENT FOR AMP SAFETY/OSHA COMPLIANCE PROGRAM
The Village of Newton Falls (“Municipality”), a political subdivision existing under the Constitution and laws of the State of Ohio, effective as of the day of 2015, hereby agrees and subscribes to a service provided by American Municipal Power, Inc., an Ohio non-profit corporation (“AMP”, and together with Municipality, the “Parties” and each a “Party”), upon the terms and conditions of this Agreement for AMP Safety/OSHA Compliance Program (this “Agreement”).
WHEREAS, AMP is an Ohio non-profit corporation organized to own and operate facilities, or to provide otherwise for the generation, transmission or distribution of electric power and energy, or any combination thereof, and to furnish technical services on a cooperative non-profit basis for the mutual benefit of its members, such members being political subdivisions that operate, or whose members operate, municipal electric utility systems in Delaware, Ohio, Kentucky, Michigan, Pennsylvania, Virginia and West Virginia; and
WHEREAS, Municipality owns and operates an electric utility system and is required to comply with rules and regulations promulgated by the Occupational Safety and Health Agency (“OSHA”) and other governmental agencies having jurisdiction over the Municipality; and
WHEREAS, the Municipality may from time to time be in need of information, guidance, and technical assistance to comply with OSHA regulations and guidelines, other safety rules and regulations and to generally improve the safety of its work; and
WHEREAS, AMP can make available to the Municipality, and to other similarly situated municipalities, qualified personnel (hereinafter called the “Safety Consultant”) who can provide assistance, information, guidance and technical expertise in complying with applicable safety laws, rules and regulations and generally improving the safety of the work environment, and AMP has certain equipment, materials, and supplies which the Municipality may wish to purchase, lease or contract for to meet needs associated with the improving the safety of the work environment and complying with all applicable safety regulations; and
NOW THEREFORE, in consideration of the conditions, terms and covenants hereinafter contained, the Parties hereto hereby mutually agree as follows:
This Agreement shall be effective as of the date written above and shall continue in effect until December 31, 2016. Thereafter:
A. This Agreement may be renewed for successive one (1) year terms by written agreement of the Parties.
B. Either Party shall have the right to terminate this Agreement for any reason by providing at least forty-five (45) days’ notice to the other Party.
C. Notwithstanding the other provisions of this Agreement, AMP shall have the right to terminate this Agreement at any time in the event a Hazardous Condition Notice has been given to the Municipality pursuant to Article VI herein and the Municipality fails to correct, allow to be corrected, or otherwise remove said hazardous condition within thirty (30) days of said Hazardous Condition Notice.
DIRECTIONS FROM THE MUNICIPALITY
The Safety Consultant furnished by AMP pursuant to this Agreement shall receive all instruction, direction and guidance with regard to the tasks to be undertaken by the Safety Consultant on the Municipality’s behalf, as long as the same is not inconsistent with this Agreement, from the individual representing the Municipality and holding the title or position of or, in the event the title of said position changes, the equivalent position following such a title change (the “Municipal Official”).
CONTROL BY AMP SAFETY CONSULTANT
At the direction of the Municipal Official, the Safety Consultant furnished to the Municipality by AMP pursuant to this Agreement may instruct and advise employees of the Municipality who are engaged in work related to the operations of the Municipality. The instructions or advice provided by the Safety Consultant shall be deemed to be advisory in nature and the Safety Consultant shall have no right or duty to direct or control said Municipality employees.
AMP shall provide a Safety Consultant to visit the Municipality at least day(s) per month, those days to be determined by Safety Consultant and the Municipality as the Safety Consultant’s schedule permits. The Safety Consultant will provide services as described below and under the following conditions as directed and prioritized by the Municipal Official:
i. Establish safety program guidelines and identify workplace hazards through review of accident reports, first reports of injury, applicable OSHA logs, safety inspection, employee suggestions, and by conducting workplace hazard inspections.
ii. Develop a plan to reduce hazardous conditions in the workplace. Provide assistance to each department in conducting job safety analysis of work areas and job assignments. Develop safety manuals and/or keep such manuals current. Develop, plan, organize and conduct monthly safety meetings and regularly assess safety training needs and report such needs to the Municipal Official.
iii. Document all safety meetings and training provided by AMP, provide accident investigations and reports, develop and/or maintain OSHA compliance records and written programs and assist with OSHA inspections and investigations.
When a Safety Consultant is shared by other members and a request is made by the Municipality, the Safety Consultant shall, in writing, notify the Municipality, no less than thirty (30) days prior to the beginning of each calendar month, of the specific dates and times during said calendar month that the Safety Consultant shall be available to the Municipality. The Safety Consultant shall consult with the Municipality(s) prior to providing said notice so as to schedule the Safety Consultant at times that are mutually acceptable to the Parties. However, the determination of when to schedule the availability of the Safety Consultant for the Municipality shall be based upon AMP’s sole judgment and discretion.
The Municipality shall compensate AMP for the Safety Consultant’s services pursuant to the terms set forth in Article VIII of this Agreement.
MATERIALS, EQUIPMENT AND SUPPLIES
AMP and the Safety Consultant may, from time to time, have available materials, equipment, and supplies that the Municipality may need or wish to utilize in the management, operation, or maintenance of its electric utility system. Pursuant to this Agreement, the Municipality may, in writing, request AMP to sell such materials, equipment or supplies to the Municipality. In the event the Municipality makes such a written request, AMP shall sell such materials, equipment or supplies to the Municipality at a price equal to AMP’s cost of the item or items plus fifteen percent (15%), unless otherwise agreed, of said cost to recognize the expense (including interest) to carry the item or items in inventory and the labor cost to maintain said inventory.
The Safety Consultant shall not be required to provide any services in any location where a hazardous condition exists or may exist. The determination of what conditions shall be regarded as hazardous conditions or potentially hazardous conditions for purposes of this Agreement shall be within the sole discretion of the Safety Consultant and AMP.
Where it is determined that a hazardous condition exists or potentially exists, the Safety Consultant or AMP shall provide the Municipality with written notice of the existing or threatened hazardous condition (a “Hazardous Condition Notice”) and the Municipality shall, without delay, remedy or eliminate the existing or potentially hazardous conditions or provide for the elimination of same. Said Hazardous Condition Notice may be oral should emergency conditions warrant the same.
So long as a hazardous condition exists nothing in this Agreement requires or should be construed to require the Safety Consultant to perform any tasks which the Safety Consultant or AMP, in their sole discretion, deem are unsafe. Municipality acknowledges that the lack of an effective polychlorinated biphenyls (PCBs) program, in conformance with all applicable Federal and State EPA and local requirements, coupled with the presence or potential presence of PCBs in certain areas of the Municipality’s electric apparatus, and the potential hazards of said materials, constitutes a hazardous condition pursuant to this Agreement.
SCHEDULING OF TECHNICAL SERVICES AND COMPENSATION
A. As payment for participation in the AMP Safety/OSHA Compliance Program, the Municipality shall compensate and pay to AMP four hundred fifty dollars ($450.00) per day for each day the Safety Consultant is on site at the Municipality (a “site visit”). Following the initial term of this Agreement, AMP may adjust such daily fee with 60 days’ written notice to Municipality.
B. The Municipality may schedule the Safety Consultant for as many site visits per month as are agreed upon by the Municipality and the Safety Consultant. However, the Municipality must schedule at least one site visit per month. If Municipality fails to schedule at least one site visit per month, the Municipality shall still be liable to compensate AMP as if the Safety Consultant made at least one site visit during the month.
1. In the event that a site visit is scheduled but the Safety Consultant is unable, through no fault of Municipality, to visit Municipality on the scheduled date, the Parties will use reasonable efforts to reschedule the visit. In the event that the site visit cannot be rescheduled for a mutually agreeable date, Municipality will not be charged for the missed site visit.
2. In the event that Municipality’s electric utility system experiences an emergency condition and Municipality wishes to reschedule a scheduled site visit, Municipality will promptly provide AMP with notice of the cancellation, and the Parties will use reasonable efforts to reschedule the visit.
C. When the Safety Consultant is requested to assist a municipal electric utility system experiencing an emergency condition, the Safety Consultant shall be dispatched to first fulfill the needs of the municipal system experiencing the emergency condition, and Municipality acknowledges that site visits may be rescheduled on a date mutually agreeable to the Parties to accommodate such emergencies. In the event that the site visit cannot be rescheduled for a mutually agreeable date, Municipality will not be charged for the missed site visit.
BILLING AND PAYMENT
AMP shall each month render to the Municipality a statement for amounts due under this Agreement and such amounts shall be due and the Municipality shall pay such amount not more than twenty (20) days after the date of receipt of the invoice. Such payment shall be considered paid when actually received by AMP during normal business hours, or deposited in AMP’s account and available for AMP’s use. In addition to the amounts specified in Article VII of this Agreement, all amounts due and not paid within twenty (20) days after the date of the invoice shall be subject to an additional charge for interest computed at the average prime rate from said due date to the date of payment. The applicable average prime rate for each calendar month, or any part thereof, shall be the arithmetic mean, to the nearest one-hundredth of one percent, of the prime rate values published in the Federal Reserve Bulletin for the fourth, third and second months preceding the due date. The interest required to be paid hereunder shall be compounded monthly. In the event of non-payment of any amounts due hereunder from the Municipality to AMP for a period of thirty (30) days after the same is due and payable, then AMP shall have the right, at its election, to discontinue provision of the Safety Consultant’s services forthwith. Such a discontinuation shall not constitute a breach of this Agreement by AMP or work a forfeiture or waiver of any rights of AMP hereunder. Any expense AMP may reasonably incur by reason of such default and discontinuation shall be borne by the Municipality.
In case a portion of any amount included in a statement rendered pursuant to this Section is in bona fide dispute, the entire amount shall be payable when due and the difference between the billed amount and the correct amount, if any, shall be promptly refunded after the determination of the correct amount, with interest thereon computed as provided in this Section.
Notwithstanding any other provision of this Agreement, AMP’s obligations hereunder are contingent upon its ability to enter into employment agreements or contracts in order to provide the qualified personnel required to provide the services contemplated herein. In accordance with Paragraph VII.B.1, above, during any period in which AMP is unable to secure qualified personnel to provide the services contemplated herein, Municipality shall not be liable for payment for any site visits, unless the site visits are rescheduled by agreement of the Parties to a time when qualified personnel is available and the site visits are actually performed.
SECTION A – EVENTS BEYOND CONTROL: No Party shall be in default in respect of any obligation hereunder if prevented from fulfilling such obligation by reason of any cause beyond its reasonable control, including without limitation strikes and labor disputes. A Party unable to fulfill any obligation by reason of any cause beyond its control shall use diligence to remove such disability with reasonable dispatch.
SECTION B – DISPUTE RESOLUTION: The Parties agree that the Dispute Resolution provisions of the Master Services Agreement between the Parties, designated as AMP Contract No. C-11-2005-4428 shall apply to all disputes arising hereunder, as if fully set forth herein.
SECTION C – WAIVER: Any waiver at any time of any rights as to any default or other matter arising hereunder shall not be deemed a waiver as to any subsequent default or matter. Any delay, short of the statutory period of limitation, in asserting or enforcing any right hereunder shall not be deemed a waiver of such right.
SECTION D – NOTICES: All notices given by the Parties under this Agreement shall be made in writing.
Notices to AMP shall be directed to:
Michelle Palmer, Asst. VP of Technical Services
American Municipal Power, Inc.
1111 Schrock Road, Suite 100
Columbus, Ohio 43229
Notices given by AMP to the Municipality shall be directed to:
Tracy Reimbold, Finance Director
Village of Newton Falls
419 North Center Street
Newton Falls, Ohio 44444
Notices are effective when received.
SECTION E – EMPLOYEES: The Municipality shall maintain all direction and control over its employees, representatives and agents and the Municipality shall conform to all applicable laws and regulations in the performance of its obligations under this Agreement and shall comply with all provisions of applicable workers compensation laws. Except for willful or wanton misconduct on the part of AMP, its agents, contractors, or subcontractors, the Municipality agrees to waive and release AMP, its affiliates, agents, contractors, or subcontractors, and the Safety Consultant furnished hereunder from any loss, damage, claim, suit or liability arising in any way out of this Agreement for the actions or inactions of the Safety Consultant.
SECTION F – APPLICABLE LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio.
SECTION G – ASSIGNMENT: This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assignee of the Parties. Assignment shall be by written notice and consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may, by written notice, transfer or assign this Agreement to any person succeeding to all or substantially all of the assets of such Party.
SECTION H – ENTIRE AGREEMENT: This Agreement and the conditions incorporated by reference contain the entire agreement. There are no other understandings or agreements between the Parties concerning the subject matter of this Agreement.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Parties warrant and represent that all actions and authorizations necessary to authorize them to affix their signature to this Agreement have duly occurred and that they have been duly authorized to execute this Agreement on behalf of their respective Party, and hereto have executed this Schedule to be effective as of the date first written above.
AMERICAN MUNICIPAL POWER, INC. VILLAGE OF NEWTON FALLS
Marc S. Gerken, P.E.
President/ CEO Name:
APPROVED AS TO FORM: APPROVED AS TO FORM:
John W. Bentine Municipal Legal Advisor
Senior VP & General Counsel
4813-1802-6023, v. 3