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HomeMy WebLinkAboutResolutions - 2015.07.16 - 21890LANNIMG AND BUILDING-COMMITTEE MISCELLANEOUS RESOLUTION #15162 June 10, 2015 BY: Planning and Building Committee, Philip Weipert, Chairperson IN RE: PARKS AND RECREATION COMMISSION - REQUEST FOR APPROVAL OF INTER-LOCAL AGREEMENT FOR DAVISBURG DAM - SPRINGFIELD OAKS COUNTY PARK To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS on February 23, 1984, the Oakland County Board of Commissioners adopted MR #84037 conveying the Mill Pond Site/Park to the Charter Township of Springfield (Springfield Township) for one dollar ($1.00) via quit claim deed; and WHEREAS, MR #84037 required that the financial obligation for maintenance and repair of the Davisburg Dam be split based on the frontage of the Mill Pond; and WHEREAS the quit claim deed that was executed on March 1, 1984 to convey the Mill Pond Site/Park did not contain the requirement that the financial obligation for maintenance and repair of the Davisburg Dam be split based on the frontage of the Mill Pond; and WHEREAS Oakland County Board of Commissioners adopted MR #13284 on November 13, 2013 approving an Affidavit to clarify the March 1, 1984 quit claim deed requiring Springfield Township and Oakland County to portion financial liability for the Davisburg Dam based on frontage of the Mill Pond; and WHEREAS the Affidavit approved by MR #13284 required the Parties to enter into an Interlocal Agreement to set forth the duties and obligations of each Party for the actual repairs or maintenance to the Davisburg Dam; and WHEREAS an Inter-local Agreement between the Oakland County and Springfield Township has been drafted by Oakland County Corporation Counsel, based upon the Affidavit of Clarification; and WHEREAS the Inter-local Agreement was approved by the Springfield Township Board of Trustees, and WHEREAS the Oakland County Parks and Recreation Commission has reviewed and recommends approval of the Inter-Local Agreement for Davisburg Dam-Springfield Oaks County Park. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves the Inter-local agreement between the County of Oakland and the Charter Township of Springfield, based upon the Affidavit of Clarification of financial responsibility, including maintenance and operational responsibility for the Davisburg Mill Pond Dam at Springfield Oaks County Park as drafted by Oakland County Corporation Counsel and approved by the Charter Township of Springfield. BE IT FURTHER RESOLVED that the Board of Commissioners hereby directs its Chairperson or his Designee to execute the attached agreement and all other related documents between the County and the Charter Township of Springfield. Chairperson, on behalf of the Planning and Building Committee, I move the adoption of the foregoing resolution. PLANNING AND BUILDING COMMITTEE VOTE: Motion carried unanimously on a roll call vote with Jack-s-on absent. AGREEMENT FOR MILL POND DAM MAINTENANCE AND REPAIR BETWEEN OAKLAND COUNTY AND CHARTER TOWNSHIP OF SPRINGFIELD This Agreement (the "Agreement") is made between Oakland County, a Constitutional and Municipal Corporation, 1200 North Telegraph, Pontiac, Michigan 48341 ("County"), through its statutory agent the Oakland County Parks and Recreation Commission ("OCPRC") and the Charter Township of Springfield, 12000 Davisburg Road, Davishurg, Michigan 48350 ("Township"). County and the Township may also be referred to jointly as "Parties". INTRODUCTION AND PURPOSE OF AGREEMENT, The County owns a dam on property located in Springfield Township, Michigan adjacent to Broadway Road in Davisburg, Michigan, which is further described in Section 1.5. In 1984, the County conveyed property to the Township, which property is now commonly known as the Mill Pond Park located at 495 Broadway, Davisburg, Michigan, in exchange for one dollar and other consideration. The property was conveyed via Quit Claim Deed, which is recorded at Liber 8608, Page 12 in the Oakland County Register of Deeds. Given that the language, contained in the Deed, requiring a financial obligation from the Township was vague, the Parties executed an Affidavit of Clarification ("Affidavit"). In this Affidavit, the County agreed to be responsible for fifty-five percent (55%) of the financial obligation for service, repair and maintenance to the Dam and the Township agreed to be responsible for forty-five (45%) of the financial obligation for service, repair and maintenance to the Dam. The Affidavit and the division of the financial obligations were based upon each Party's proportional share of property frontage on the Mill Pond. This Affidavit is recorded at Liber 46563, Page 797 in the Oakland County Register of Deeds. The County and the Township now enter into this Agreement, pursuant to Michigan law, for the purpose of delineating the duties and responsibilities between the Parties with respect to the service, maintenance and repair of the Dam. The Parties agree to the following terms and conditions: 1. DEFINITIONS. The following words and expressions used throughout this Agreement, whether used in the singular or plural, shall be defined, read, and interpreted as follows. 1 .1. Agreement means the terms and conditions of this Agreement and any other mutually agreed to written and executed modification, amendment, addendum, or exhibit approved in accordance with Section 2. 1.2. Claims means any alleged losses, claims, complaints, demands for relief or damages, lawsuits, causes of action, proceedings, judgments, deficiencies, liabilities, penalties, litigation, costs, and expenses, including, but not limited to, reimbursement for reasonable attorney fees, witness fees, court costs, investigation expenses, litigation expenses, amounts paid in settlement, and/or other amounts or liabilities of any kind which are incurred by or Page 1 of 7 MILL POND DAM - INTERLOCAL AGREEMENT 1>i:ember I 2.2014 asserted against a party, or for which a party may become legally and/or contractually obligated to pay or defend against, whether direct, indirect or consequential, whether based upon any alleged violation of the federal or the state constitution, any federal or state statute, rule, regulation, or any alleged violation of federal or state common law. 1.3. County means Oakland County, a Municipal and Constitutional Corporation, including, but not limited to, all of its departments, divisions, the County Board of Commissioners, elected and appointed officials, directors, board members, council members, commissioners, authorities, committees, employees, agents, volunteers, and/or any such persons' successors. 1.4. County Employee means without limitation, any employees, officers, managers, trustees, volunteers, attorneys, and representatives of the County, and also includes any County licensees, concessionaires, contractors, subcontractors, independent contractors, contractor's suppliers, subsidiaries, joint ventures or partners, and/or any such persons, successors or predecessors, employees, (whether such persons act or acted in their personal, representative or official capacities). "County Employee" shall also include any person who was a County Employee at any time during the term of this Agreement but, for any reason, is no longer employed, appointed, or elected in that capacity. 1.5. Dam or Mill Pond Dam means the dam owned by the County and located at the Davisburg Mill Pond on property owned by the County in Springfield Township, Michigan; also known as the Davisburg Dam, Dam ID 244. 1.6, kly means any calendar day beginning at 1200 a.m. and ending at 11:59 p.m. 1.7. OCPRC means the Oakland County Parks and Recreation Commission, as established by resolution of the Oakland County Board of Commissioners pursuant to Public Act 261 of 1965, MCL 46.351, et seq. 1.8. Township means the Charter Township of Springfield, including, but not limited to, its Board, any and all of its departments, its divisions, elected and appointed officials, board members, commissioners, authorities, committees, employees, agents, subcontractors, attorneys, volunteers, and/or any such persons' successors, 1.9. Township Employee means without limitation, any employees, officers, managers, trustees, volunteers, attorneys, and representatives of the Township, and also includes any Township licensees, concessionaires, contractors, subcontractors, independent contractors, contractor's suppliers, subsidiaries, joint ventures or partners, and/or any such persons, successors Or predecessors, employees, (whether such persons act or acted in their personal, representative or official capacities). "Township Employee' shall also include any person who was a Township Employee at any time during the term of this Agreement but, for any reason, is no longer employed, appointed, or elected in that capacity. 2. EFFECTIVE DATE/DURATION OF INTERLOCAL AGREEMENT/AMENDMENTS. 2.1. This Agreement and any amendments to this Agreement shall be effective when executed by both Parties, All amendments to this Agreement shall be in writing. The approval and terms of this Agreement and any amendments shall be entered in the official minutes of the governing bodies of each Party. An executed copy of this Agreement and any amendments shall be filed by the County Clerk with the Secretary of State. 2.2. This Agreement shall commence on the date the Agreement is completely executed by all Parties and end when cancelled or terminated as provided in Section 8. Page 2 of 7 MILL POND DAM - INTERLOCAL AGREEMENT December 12, 20!4 3. SERVICE, REPAIR AND MAINTENANCE RESPONSIBIITIES. 3.1. For each service, repair, or maintenance project for the Dam, Parties shall designate a contact person who shall be the Party's primary contact point for that project. 3.2. The OCPRC and the Township shall collaborate to create and reach a consensus for proposals for each service, repair or maintenance project to the Dam. The OCPRC does not need to collaborate on proposals for service, repair or maintenance to the Darn in the following circumstances: (1) if the OCPRC does not want the Township's forty-five percent (45%) contribution toward service, repair or maintenance of the Dam; or (2) if, as determined by OCPRC, an emergency requires immediate service, repair or maintenance to the Dam to avoid harm to persons or property; in this circumstance the Township's forty- five percent (45%) contribution will be required, provided however, in this circumstance the Township's contribution shall not exceed two thousand five hundred dollars ($2,500,00). 3.3. If the Parties are unable to collaborate and reach a consensus for a service, repair, or maintenance project to the Darn, then the matter shall be addressed pursuant to Section 7. 3.4. Given that the Dam is the property of the County, the OCPRC shall perform and manage any service, repair or maintenance to the Dam Or cause a third-party to perform and manage the service, repair or maintenance to the Dam, except as otherwise provided herein. 3,5, The OCPRC and the Township may agree that the Township can perform certain service, repair or maintenance work to the Dam. The Township and the OCPR shall set forth, in writing, the service, repair or maintenance work to be performed by the Township. 3.6. If the Township performs any service, repair or maintenance on the Dam, then all contracts for such work shall be between the contractor and the Township (and not the County/OCPRC), The Township shall be responsible for all costs associated with those contracts, provided however; that the Township may seek reimbursement from the OCPRC pursuant to Section 4. The contractor providing the work pursuant to this Section shall be approved by the OCPRC Executive Officer or his/her designee, in their sole discretion, The contract providing for such work shall contain the following provisions: (1) a requirement that the contractor and/or any subcontractors indemnify the County for all Claims arising out of the contract and work performed to or around the Dam and (2) a requirement that the contractor and/or subcontractors obtain and maintain insurance at levels and in the manner approved by the County, in its sole discretion. 3,7. Notwithstanding any other provision in this Agreement, the County shall perform day- to-day maintenance and repair of the fence along the South side of Broadway and of the Darn spillway, including, but not limited to lubricating the control mechanism, without seeking contribution from the Township pursuant to Section 4. This day-to-day maintenance does not include replacement of the fence or the Darn spillway. 3.8, Notwithstanding any other provision in this Agreement, the Township shall perform day-to-day grounds maintenance on the strip of land between the South side of Broadway and the Mill Pond (not all the grounds around the Dam), including lawn mowing, turf management and vegetation removal, without seeking contribution from the County pursuant to Section 4, 4. PAYMENTS, Page 3 of 7 MILL POND DAM - INTERLOCAL AGREEMENT December 32, 2014 4.1. Except as provided in Section 3.2, the OCPRC shall be responsible for fifty-five percent (55%) of the costs associated with the service, repair and maintenance of the Dam and the Township shall be responsible for forty-five percent (45%) of the costs associated with the service, repair and maintenance of the Darn as required by the Affidavit. 4.2. The OCPRC shall send an itemized invoice to the Township for its share of the costs associated with the service, repair and maintenance of the Darn, The Township shall pay the invoice within thirty (30) days of its receipt. The invoice shall state the manner and method of payment to the OCPRC. The invoice shall include documentation that would allow the Township to determine costs for all aspects of the service, repair or maintenance. Upon receipt of reimbursement from the Township, the OCPRC shall provide the Township with all project-close out documents, as built drawings, waivers of liens, warranties, and any other drawings, reports or documents related to the service, repair or maintenance 4,3. If the Township performs the service, repair or maintenance work on the Darn, as provided in Sections 3.5 and 3.6, then the Township shall send an itemized invoice to the OCPRC for its share of the costs associated with the service, repair and maintenance of the Dam. The OCPRC shall pay the invoice within thirty (30) days of its receipt. The invoice shall state the manner and method of payment to the Township. The invoice shall include documentation that would allow the OCPRC to determine costs for all aspects of the service, repair or maintenance. Upon receipt of reimbursement from the OCPRC, the Township shall provide the OCPRC with all project-close out documents, as built drawings, waivers of liens, warranties, and any other drawings, reports or documents related to the service, repair or maintenance. 4.4. If either Party, for any reason, fails to pay the other Party any monies when and as due under this Agreement, the non-breaching Party may exercise the remedies found in Sections 7 and 18. The non-breaching Party shall have the right to charge up to the then- maximum legal interest on any unpaid amount. Interest charges shall be in addition to any other amounts due under this Agreement. Interest charges shall be calculated using the daily unpaid balance method and accumulate until all outstanding amounts and accumulated interest are fully paid. 4.5. Notwithstanding any other term and condition in this Agreement, if the nonbreaching Party pursues any legal action in any court to secure its payment under this Agreement, and prevails, the breaching Party agrees to pay all costs and expenses, including attorney fees and court costs, incurred in the collection of any amount, 5. ASSURANCES. 5.1. Each Party shall be responsible for any Claims made against that Party by a third party, and for the acts of its employees arising under or related to this Agreement. 5.2. Except as required by Section 4.5, in any Claim that may arise from the performance of this Agreement, each Party shall seek its own legal representation and bear the costs associated with such representation, including judgments and attorney fees. 5.3. Except as otherwise provided for in this Agreement, neither Party shall have any right under this Agreement or under any other legal principle to be indemnified or reimbursed by the other Party or any of its agents in connection with any Claim. Page 4 of 7 MILL POND DAM - INTERLOCAL AGREEMENT December12.2014 5.4. This Agreement does not, and is not intended to, impair, divest, delegate or contravene any constitutional, statutory, and/or other legal right, privilege, power, obligation, duty, or immunity of the Parties. Nothing in this Agreement shall be construed as a waiver of governmental immunity for either Party. 5.5. The Parties have taken all actions and secured all approvals necessary to authorize and complete this Agreement. The persons signing this Agreement on behalf of each Party have legal authority to sign this Agreement and bind the Parties to the terms and conditions contained herein, 5.6, Each Party shall comply with all federal, state, and local ordinances, regulations, administrative rules, and requirements applicable to its activities performed under this Agreement, 6. LIMITATION OF LIABILITY. In no event shall either Party be liable to the other Party or any other person, for any consequential, incidental, direct, indirect, special, and punitive or other damages arising out of this Agreement, 7. DISPUTE RESOLUTION. All disputes relating to the execution, interpretation, performance, or nonperformance of this Agreement involving or affecting the Parties shall first be submitted to the OCPRC Executive Officer and the Township Supervisor. The OCPRC Executive Officer and the Township Supervisor shall promptly meet and confer in an effort to resolve such dispute. If they cannot resolve the dispute in five (5) business days, the dispute may be submitted to a panel of three individuals, with the OCPRC Executive Officer and the Township Supervisor each selecting a member, and the two members so selected choosing the third member. If the dispute is not resolved within thirty (30) business days then, at the option of both parties, the matter may be submitted to arbitration by a single arbitrator (selected by the panel), with arbitration conducted in Oakland County, Michigan in accordance with the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction; or the matter may be submitted to facilitation, 8, TERMINATION OR CANCELLATION OF AGREEMENT. 8,1. Either Party may terminate or cancel this entire Agreement, upon sixty (60) days written notice, if either Party decides, in its sole discretion, to terminate this Agreement, for any reason including convenience. 8.2. The effective date of termination and/or cancellation shall be clearly stated in the written notice. Either the Board of Commissioners Chairperson or the OCPRC Chairperson is authorized to terminate this Agreement for the County under this provision. 8.3. If this agreement is terminated, the parties respective financial obligation for service, repairs and maintenance to the Dam shall remain as described in the Affidavit 9. DELEGATION OR ASSIGNMENT, Neither Party shall delegate or assign any obligations or rights under this Agreement without the prior written consent of the other Party. For purposes of this Section, consent for the County shall be given by the OCPRC Executive Officer or his/her successor and consent for the Township shall be given by the Township Supervisor. 10. NO EMPLOYEE-EMPLOYER RELATIONSHIP. Nothing in this Agreement shall be construed as creating an employer-employee relationship between County and the Township. 11. NO THIRD PARTY BENEFICIARIES. Except as provided for the benefit of the Parties, this Agreement does not and is not intended to create any obligation, duty, promise, contractual Page 5 of 7 MILL POND DAM - INTERLOCAL AGREEMENT December 12, 2314 right or benefit, right to indemnification, right to subrogation, and/or any other right in favor of any other person or entity. 12. NO IMPLIED WAIVER. Absent a written waiver, no act, failure, or delay by a Party to pursue or enforce any rights or remedies under this Agreement shall constitute a waiver of those rights with regard to any existing or subsequent breach of this Agreement. No waiver of any term, condition, or provision of this Agreement, whether by conduct or otherwise, in one or more instances shall be deemed or construed as a continuing waiver of any tenn, condition, or provision of this Agreement. No waiver by either Party shall subsequently affect its right to require strict performance of this Agreement 13. SEVERABILITY, If a court of competent jurisdiction finds a term or condition of this Agreement to be illegal or invalid, then the term or condition shall be deemed severed from this Agreement. All other terms, conditions, and provisions of this Agreement shall remain in full force. 14. PRECEDENCE OF DOCUMENTS. In the event of a conflict between the terms and conditions of the Affidavit and this Agreement, the terms and conditions in the Affidavit shall prevail and take precedence over any allegedly conflicting terms and conditions in the Agreement. 15. CAPTIONS. The section and subsection numbers, captions, and any index to such sections and subsections contained in this Agreement are intended for the convenience of the reader and are not intended to have any substantive meaning. The numbers, captions, and indexes shall not be interpreted or be considered as part of this Agreement. Any use of the singular or plural, any reference to gender, and any use of the nominative, objective or possessive case in this Agreement shall be deemed the appropriate plurality, gender or possession as the context requires. 16. FORCE MAjEURE. Notwithstanding any other term or provision of this Agreement, neither Party shall be liable to the other for any failure of performance hereunder if such failure is due to any cause beyond the reasonable control of that Party and that Party cannot reasonably accommodate or mitigate the effects of any such cause. Such cause shall include, without limitation, acts of God, floods, fire, explosion, vandalism, national emergencies, insurrections, riots, wars, strikes, lockouts, work stoppages, other labor difficulties, or any law, order, regulation, direction, action, or request of the United States government or of any other government. Reasonable notice shall be given to the affected Party of any such event. 17. NOTICES, Notices given under this Agreement shall be in writing and shall be personally delivered, sent by express delivery service, certified mail, or first class U.S. mail postage prepaid, and addressed to the person listed below. Notice will be deemed given on the date when one of the following first occur: (i) the date of actual receipt; (ii) the next business day when notice is sent express delivery service or personal delivery; or (iii) three days after mailing certified U.S. mail. 17.1. If Notice is sent to County, it shall be addressed and sent to: OCPRC Executive Officer, 2800 Watkins Lake Road, Waterford, Michigan 48328 and the Chairperson of the Oakland County Board of Commissioners, 1200 North Telegraph Road, Pontiac, Michigan 48341. 17.2. If Notice is sent to The Township, it shall be addressed to: Springfield Township Supervisor, 12000 Davisburg Rd, Davisburg, Michigan 48350 and the Springfield Township Clerk, 12000 Davisburg Rd, Davisburg, Michigan 48350 17.3, Either Party may change the individual to whom Notice is sent and/or the mailing address by notifying the other Party in writing of the change. Page 6 of 7 MILL POND DAM - INTERLOCAL AGREEMENT December 12, 201.1 DATE: --/:" --/j/ WITNESSED: DATE: 18. GOVERNING LAW/CONSENT TO JURISDICTION AND VENUE, This Agreement shall be governed, interpreted, and enforced by the laws of the State of Michigan. Except as otherwise required by law or court rule, any action brought to enforce, interpret, or decide any Claim arising under Or related to this Agreement shall be brought in the 6th Judicial Circuit Court of the State of Michigan, the 50th District Court of the State of Michigan, or the United States District Court for the Eastern District of Michigan, Southern Division, as dictated by the applicable jurisdiction of the court. Except as otherwise required by law or court .rule, venue is proper in the courts set forth above, 19, ENTIRE AGREEMENT. This Agreement and the referenced Affidavit represents the entire agreement and understanding between the Parties regarding the maintenance and repair to the Darn. This Agreement and the referenced Affidavit supersede all other oral or written agreements between the Parties regarding that subject matter. The language of this Agreement shall be construed as a whole according to its fair meaning, and not construed strictly for or against any Party, IN WITNESS WHEREOF, Collin W. Walls has been authorized by a resolution of the Charter Township of Springfield, to execute this Agreemot. EXECUTED: IN WITNESS WHEREOF, Michael J. Gingell, Chairperson, Oakland County Board of Commissioners, has been authorized by a resolution of the Oakland County Board of Commissioners to execute this Agreement. EXECUTED: DATE: WITNESSED: Michael J. Gingell, Chairperson Oakland County Board of Commissioners DATE: Page 7 of 7 MILL POND DAM - INTERLOCAL AGREEMENT D,cenlbtr 12, 2014 Resolution #15162 June 10, 2015 The Chairperson referred the resolution to the Finance Committee. There were no objections. FISCAL NOTE (MISC. #15162) July 16, 2015 BY: Finance Committee, Tom Middleton, Chairperson IN RE: PARKS AND RECREATION COMMISSION — REQUEST FOR APPROVAL OF INTER-LOCAL AGREEMENT FOR DAVISBURG DAM — SPRINGFIELD OAKS COUNTY PARK To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: Pursuant to Rule XII-C of this Board, the Finance Committee has reviewed the above referenced resolution and finds: 1. The Oakland County Board of Commissioners adopted MR #84037 conveying the Mill Pond Site/Park to the Charter Township of Springfield and required the financial obligation for maintenance and repair of the Davisburg Dam be split based on the frontage of the Mill Pond. 2. The Oakland County Board of Commissioners adopted MR #13284 approving an Affidavit to clarify the previous execution of a quit claim deed requiring Springfield Township and Oakland County to portion financial liability for the Davisburg Dam based on frontage of the Mill Pond and required the Parties to enter into an Inter-local Agreement to set forth the duties and obligations of each Party for the actual repairs or maintenance to the Davisburg Dam. 3. The Inter-local Agreement was approved by the Springfield Township Board of Trustees and the Oakland County Parks and Recreation Commission has reviewed and recommends approval of the Inter-local Agreement for Davisburg Dam-Springfield Oaks County Park. 4. A budget amendment is not required. FINANCE COMMITTEE VOTE: Motion carried unanimously on a roll call vote with Woodward and Zack absent. Resolution #15162 July 16, 2015 Moved by Kowall supported by Bowman the resolutions (with fiscal notes attached) on the amended Consent Agenda be adopted (with accompanying reports being accepted). AYES: Dwyer, Fleming, Gershenson, Gingell, Gosselin, Hoffman, Jackson, Kowall, Long, Matis, McGillivray, Middleton, Scott, Spisz, Taub, Weipert, Woodward, Bowman, Crawford. (19) NAYS: None. (0) A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the amended Consent Agenda were adopted (with accompanying reports being accepted). HEREBY APPRO E THIS RESOLUTION CHIEF DEPUTY COUNTY EXECUTIVE ACTING PURSUANT TO MCL 45.559A (7) STATE OF MICHIGAN) COUNTY OF OAKLAND) I, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on July 16, 2015, with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 16th day of July 2015. Lisa Brown, Oakland County