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HomeMy WebLinkAboutResolutions - 2016.07.20 - 22444NNING AND BUILDING-CCIMMITTEE MISCELLANEOUS RESOLUTION #16176 July 20, 2016 BY: Planning and Building Committee, Philip J. Weipert, Chairperson IN RE: PARKS AND RECREATION COMMISSION — REQUEST FOR APPROVAL OF AN INTERLOCAL AGREEMENT BETWEEN OAKLAND COUNTY AND THE CHARTER TOWNSHIP OF INDEPENDENCE To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS the County of Oakland is the owner of Independence Oaks County Park located in the Charter Township of Independence, Oakland County; and WHEREAS the Charter Township of Independence is proposing the construction of a safety path extension from the entrance of Independence Oaks County Park north to Oak Hill Road along Sashabaw Road adjacent to the park; and WHEREAS one of the strategies in the Oakland County Parks and Recreation Commission's adopted Strategic Master Plan is to "work with county departments, state and local agencies, community leaders and non-profit organizations to complete and promote the Oak Routes Trail Network in Oakland County;" and WHEREAS this proposed portion of the safety path is included as a proposed extension of the Oak Routes Trail Network; and WHEREAS this proposed portion of the safety path will provide connectivity between the main park at Independence Oaks County Park and Independence Oaks-North; and WHEREAS an interlocal agreement has been proposed as a joint agreement between Oakland County and the Charter Township of Independence for this construction project; and WHEREAS Oakland County Corporation Counsel has reviewed the interlocal agreement; and WHEREAS the Charter Township of Independence has committed $600,000 towards the construction project; and WHEREAS at its April 13, 2016 meeting, the Oakland County Parks and Recreation Commission approved an amendment to the FY2016 budget for use in executing the agreement, including a recognition of the $600,000 contribution from Independence Township as part of the agreement. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby authorizes and approves the attached Agreement for Independence Safety Path Project between Oakland County and Charter Township of Independence for the construction of a safety path along Sashabaw Road adjacent to Independence Oaks County Park. BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners directs its Chairperson or designee to execute the attached interlocal agreement. 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. Pending Fully Executed Copy AGREEMENT FOR INDEPENDENCE SAFETY PATH PROJECT BETWEEN OAKLAND COUNTY AND CHARTER TOWNSHIP OF INDEPENDENCE 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 Independence, 6483 Waldon Center Drive, Clarkston, Michigan 48346 ("Township"). The County and the Township may also be referred to jointly as "Parties" or individually in a generic or alternative sense as a "Party." INTRODUCTION AND PURPOSE OF AGREEMENT. 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 design, engineering, construction, ownership and maintenance of a safety path in the locations generally depicted on the attached Exhibit "A" generally paralleling Sashabaw Road and the boundary line of Independence Oaks Park for the benefit and use of the park, park patrons, and the general public. 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 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, Page 1 of 7 Motion #2015-09-175 Regular Meeting: 0912212015 SAFTEY PATH PROJECT - INTERLOCAL AGREEIVILEN_ September 16, 2015 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 -Lein' of this Agreement but, for any reason, is no longer employed, appointed, or elected in that capacity. 1.5. Day means any calendar day beginning at 12:00 a.m. and ending at 11:59 p.m. 1.6. 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. 1.7. Safety Path means the safety path to be designed, engineered, constructed and maintained under this Agreement in the locations generally depicted on the attached Exhibit "A" generally paralleling Sashabaw Road and the boundary line of Independence Oaks Park, as well as a cross walk on Sashabaw Road, Exhibit "A" is incorporated into this Agreement. Exhibit A shall be amended and replaced with the final survey drawings once the design and engineering plans for the Safety Path are complete. 1.8. Township means the Charter Township of Independence, including, but not limited to, its Board, any and all of its departments, 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 INTE1RLOCAL 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 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 expired or terminated as provided in Section 8. 3. DESIGN/ENGINEERING, CONSTRUCTION AND MAINTENANCE OF THE SAFETY PATH. 3.1. There shall be a Safety Path Construction Work Group comprised of individuals identified in this Section, which shall do the following: (a) provide input regarding the Safety Path design and construction/engineering plans; (b) provide input regarding the award of contracts relating to the design, engineering and construction of the Safety Path; (c) administratively review and approve construction change orders within the approved Safety Path project amount, if any; and (d) provide input regarding information and notifications to the public regarding the Safety Path. The Safety Path Construction Work Group shall be comprised of the OCPRC Executive Officer or his/her designee, Township Supervisor or Page 2 of 7 SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT September 16, 2015 his/her designee, the persons designated by the OCPRC Executive Officer and Township Supervisor as the project leads, one person designated by the OCPRC Executive Officer, and one person designated by the Township Supervisor ("Work Group"). The OCPRC Executive Officer and the Township Supervisor shall each designate one person to be the project lead for the Safety Path Project, who shall be the primarily points of contact for this project. The Work Group shall meet as necessary for the above purposes until completion of the construction of the Safety Path. The Work Group will meet at the call of the OCPRC Executive Officer or the Township Supervisor. Unless the OCPRC Executive Officer and the Township Supervisor mutually agree otherwise, the OCPRC Executive Officer will chair the meetings of the Work Group and a member of the OCPRC staff will be designated to take notes of the meetings and distribute copies of same to all participants after each meeting. The OCPRC Executive Officer will be responsible for providing the Work Group with the documents and information necessary to provide the input and approvals described in this Section. The Work Group will operate by consensus of those attending the meetings. In the event a consensus cannot be reached on a matter involving the design, engineering, award of contracts, or construction change orders, the lack of such consensus and the positions of the various participants in the discussion will be reflected in the notes of the meeting and transmitted to the OCPRC, which shall make the decision. 3.2. The County, through the OCPRC, shall perform or cause to be performed the design, engineering, easement acquisition (if any are required for the construction of the Safety Path) and permitting for the construction of the Safety Path, at its sole cost and expense. Upon completion of the Safety Path, the County shall convey/transfer all easements, if any, to the Township. 3,3. The County, through the OCPRC, shall perform or cause to be performed the construction of the Safety Path and the reasonable restoration of all areas disturbed by such construction. The Township shall be responsible for $600,000.00 of the actual costs of such construction and restoration and the County shall be responsible for the balance of the cost of such construction and restoration. 3.4. The Township shall perform or cause to be performed the ongoing maintenance and/or replacement of the Safety Path at its sole cost and expense Said maintenance shall be in the sole discretion of the Township; provided, however, that the timing and level of maintenance of the Safety Path shall be roughly equivalent to that which is undertaken for other safety paths in the Township's System from time to time. 3.5. Upon completion of the Safety Path construction and restoration, the Safety Path is hereby deemed a part of and incorporated into the Township's Safety Path System. This subsection shall survive any termination of this Agreement; provided, however, that the Township shall have the sole discretion to discontinue, abandon and/or remove all or any part of the Safety Path after termination of this Agreement. 4. PAYMENTS. 4.1. Upon completion of the Safety Path construction and restoration, the Township shall pay its share of such costs per Subsection 3.3 within 60 days of receipt of an invoice from the County for the same. 4.2. 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 Subsection 4.3 and Section 7. In addition, the non-breaching Party shall have the right to Page 3 of 7 SAFTEY PATH PROJECT - INTERLO CAL AGREEMENT September lfi, 2015 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. 4.3. Notwithstanding any other term and condition in this Agreement, if a non-breaching Party pursues any legal action in any court to secure 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 4.3, 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. 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 or their respective employees. 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 nonperfounance 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 at the option of both Parties. Page 4 of 7 SAFTEY PATH PROJECT - INTERLO CAL AGREEMENT September 16, 20 15 8. TERMINATION OR. EXPIRATION OF AGREEMENT. 8.1. Upon no less than one hundred and eighty (180) days advance written notice, either Party may, in its sole discretion, terminate this Agreement for any reason including convenience. The effective date of termination shall be clearly stated in the written notice. 8.2. Either the Board of Commissioners' Chairperson or the OCPRC Chairperson is authorized to terminate this Agreement for the County under this Section 8. 8.3. Unless terminated earlier under Subsection 8.1, this Agreement shall expire and be of no further force or effect three (3) years after the completion of the Safety Path construction. 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. Also for purposes of this Agreement, a Party contracting with a third party contractor to perfoiur the design, engineering, construction, maintenance, repair or replacement of the Safety Path on the Party's behalf shall not operate as an assignment or delegation under this Section. 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. This Agreement does not and is not intended to create any obligation, duty, promise, contractual right or benefit, right to indemnification, right to subrogation, and/or any other right in favor of any person or entity other than the Parties. 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 that or any other term, 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. 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 15. FORCE MAJEURE. Notwithstanding any other term or provision of this Agreement, neither Party shall be liable to the other for any failure of perforinance 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, Page 5 of 7 SAFTEY PATH PROJECT - INTERLO CAL AGREEMENT September 16, 2015 EXECUTED: Patrrick J. Kittle, Supervisor Charter Township of Independence DATE: 0 , PRINT NAME: !altar- az C.-0._nVnr\ 1.2a-ez WITNESSED: 6411,: 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. 16. 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. 16.1. If Notice is sent to County and OCPRC, 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. 16.2. If Notice is sent to The Township, it shall be addressed to: Independence Township Supervisor, 6483 Waldon Center Drive, Clarkston, Michigan 48346 and the Independence Township Clerk, 6483 Waldon Center Drive, Clarkston, Michigan 48346_ ,16.3. 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. 17. 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 52-2 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. 18_ ENTIRE AGREEMENT. This Agreement represents the entire agreement and understanding between the Parties regarding the design, engineering, construction and maintenance of the Safety Path. This Agreement supersedes 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, Patrick J. Kittle, Supervisor, Charter Township of Independence, has been authorize y resolution of the Charter Township of Independence Board of Trustees, to execut this A reement onAhalf of the Township. 0 ci.1'13,A .A) DATE: Page 6 of 7 SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT September 16, 2015 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 on behalf of the County. EXECUTED: • Michael J. Gingell, Chairperson Oakland County Board of Commissioners WITNESSED: PRINT NAME: DATE: DATE: IN WITNESS WHEREOF, Oakland County Parks and Recreation Commission, has been authorized by a resolution of the Oakland County Parks and Recreation Commission to execute this Agreement on behalf of the County. EXECUTED: DATE: Oakland County Parks and Recreation Commission WITNESSED: DATE: PRINT NAME: Page 7 of 7 SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT September 16, 2015 crIA KLAND COUNTY PARKS Proposed Independence Oaks Safety Path Resolution #16176 July 20, 2016 Commissioner Middleton, Acting Chairperson referred the resolution to the Finance Committee. There were no objections.