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HomeMy WebLinkAboutResolutions - 2016.08.18 - 22520PLANNING AND BUILDING COMM! MISCELLANEOUS RESOLUTION # 16218 August 18, 2016 BY: Planning and Building Committee, Phillip Weipert, Chairperson IN RE: PARKS AND RECREATION — AGREEMENT FOR CONTROLLED BURN AT GROVELAND OAKS COUNTY PARK BETWEEN OAKLAND COUNTY AND TOWNSHIP OF GROVELAND To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS Oakland County Parks and Recreation regularly conducts prescribed burns of its parklands to maintain biodiversity, rehabilitate vegetation and control invasive species; and WHEREAS Groveland Township has an interest in conducting prescribed burns at Groveland Oaks County Park as part of its Fire Department training program; and WHEREAS utilizing Groveland Township to conduct prescribed burning at Groveland Oaks will save county resources and provide valuable training to the Groveland Township Fire Department; and WHEREAS the Oakland County Parks and Recreation 5-Year Recreation Master Plan calls for the continuation of active natural resource management including prescribed burning. NOW THEREFORE BE IT RESOLVED THAT THE Oakland County Board of Commissioners authorizes and approves the Agreement for Controlled Burn at Groveland Oaks County Park Between Oakland County and Township of Groveland. BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners authorizes the Board's Chairperson, or his designee, to execute the 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 with Gosselin, McGillivray, and Scott absent. MISCELLANEOUS RESOLUTION IN RE: Agreement for Controlled Burn at Groveland Oaks County Park Between Oakland County and Township of Groveland To the Oakland County Parks and Recreation Commission Chairperson, Ladies and Gentlemen: WHEREAS Oakland County Parks and Recreation regularly conducts prescribed burns of its parklands to maintain biodiversity, rehabilitate vegetation and control invasive species; and WHEREAS Groveland Township has an interest in conducting prescribed burns at Groveland Oaks County Park as part of its Fire Department training program; and WHEREAS utilizing Groveland Township to conduct prescribed burning at Groveland Oaks will save county resources and provide valuable training to the Groveland Township Fire Department; and WHEREAS the Oakland County Parks and Recreation 5-Year Recreation Master Plan calls for the continuation of active natural resource management including prescribed burning. NOW THEREFORE BE IT RESOLVED that the Oakland County Parks and Recreation Commission approves the Agreement for Controlled Burn at Groveland Oaks County Park Between Oakland County and Township of Groveland. Date: July 5, 2016 Moved by: Mrs. Long Supported by: Mr, Scott Ayes: Baumhart, Fowkes, Kostin, Long, McGillivray, Nash, Scott, VanderVeen (8) Nays: (0) Motion carried on a unanimous voice vote. AGREEMENT FOR CONTROLLED BURN AT GROVELAND OAKS COUNTY PARK BETWEEN OAKLAND COUNTY AND TOWNSHIP OF GROVELAND 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 Township of Groveland, 4695 Grange Hall Road, Holly, Michigan 48442 ("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 enter into this Agreement, pursuant to Michigan law, for the purpose of delineating the duties and responsibilities between the Parties with respect to controlled burns performed by the Township Fire Department at Groveland Oaks County Park (the "Park"). OCPRC annually performs controlled burns at its County Parks. The Township Fire Department would like to perform the controlled burns at the Park as a training exercise. OCPRC would save thousands of dollars if the controlled burns were performed by the Township Fire Department, instead of a third- party contractor. 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. s Li. 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, Page 1 of 6 CONTROLLED BURN - INTERLOCAL AGREEMENT 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. pay 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. Township means the Charter Township of Groveland, 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. 1.8. 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 ("Effective Date"). 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 Effective Date and shall end unless terminated as set forth herein. 3. RESPONSIBILITIES FOR CONTROLLED BURN. 3.1. OCPRC shall prepare the plan(s) for the controlled bum(s), which shall be submitted to the Township Fire Department for review and approval. 3.2. The Township Fire Department shall be responsible for obtaining the required permits or licenses for performing the controlled burn, if any are required; provided that OCPRC shall reimburse the Township for any costs associated with such permits or licenses, 3.3. The controlled burns shall be performed OD a date and time mutually agreed to by the Township Fire Department and OCPRC; however, pending suitable weather conditions, the controlled burns shall only occur March 1 thru April 30 and September 15 thru December 30. 4. PAYMENTS. 4.1. Except for costs set forth in Section 3 or payments that may become due under Section 5, the Parties do not owe one another payments for the work performed under this Agreement, Page 2 of 6 CONTROLLED BURN - INTERLOCAL AGREEMENT 5. ASSURANCES/INSURANCE. 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. 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. The Parties acknowledge 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. 5.7. The Township shall obtain and maintain the insurance as set forth in Exhibit I. Exhibit I is fully incorporated into 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 at the option of both Parties. 8. TERMINATION/SURVIVAL OF TERMS. 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. Page 3 of 6 CONTROLLED BURN - INTERLOCAL AGREEMENT 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. The terms and conditions contained in Section 1, Section 5, and Section 6 shall survive the termination or expiration of this Agreement. 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. 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 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. 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: (1) 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. Page 4 of 6 CONTROLLED BURN - INTERLOCAL AGREEMENT 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: Groveland Township Supervisor, 4695 Grange Hall Road, Holly Michigan 48442. 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, Robert DePalma, Supervisor, Township of Groveland, has been authorized by a resolution of the Township of Groveland Board of Trustees, to execute this Agreement on behalf of the Township. EXECUTED: DATE: Robert DePalma, Supervisor Township of Groveland WITNESSED: DATE: 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: DATE: WITNESSED: Michael J. Gingell, Chairperson Oakland County Board of Commissioners 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. Page 5 of 6 CONTROLLED BURN - INTERLOCAL AGREEMENT EXECUTED: DATE: Oakland County Parks and Recreation Commission WITNESSED: DATE: Page 6 of 6 CONTROLLED BURN - ENTERLOCAL AGREEMENT EXHIBIT I INSURANCE REQUIREMENTS The Township shall provide and maintain, at its own expense, all insurance as set forth below. The insurance shall be written for not less than any minimum coverage herein specified. Primary Coverages Commercial General Liability Occurrence Form including: (a) Premises and Operations; (b) Products and Completed Operations (including On and Off Premises Coverage); (c) Personal and Advertising Injury; (d) Broad Form Property Damage; (e) Independent Contractors; (f) Broad Form Contractual including coverage for obligations assumed in this Agreement; $3,000,000 — Each Occurrence Limit $1,000,000 — Personal & Advertising Injury $2,000,000 — Products & Completed Operations Aggregate Limit $2,000,000 — General Aggregate Limit $ 100,000 — Damage to Premises Rented to You (formally known as Fire Legal Liability) Workers' Compensation Insurance with limits statutorily required by any applicable Federal or State Law and Employers Liability insurance with limits of no less than $500,000 each accident, $500,000 disease each employee, and $500,000 disease policy limit. Commercial Automobile Liability Insurance covering bodily injury or property damage arising out of the use of any owned, hired, or non-owned automobile with a combined single limit of $1,000,000 each accident. This requirement is waived if there are no company owned, hired or non-owned automobiles utilized in the performance of this Agreement. General Insurance Conditions The aforementioned insurance shall be endorsed, as applicable, and shall contain the following terms, conditions, and/or endorsements. All certificates of insurance shall provide evidence of compliance with all required terms, conditions and/or endorsements. 1. All policies of insurance shall be on a primary, non-contributory basis with any other insurance or self-insurance carried by the County; 2. The insurance company(s) issuing the policy(s) shall have no recourse against the County for subrogation (policy endorsed written waiver), premiums, deductibles, or assessments under any form. All policies shall be endorsed to provide a written waiver of subrogation in favor of the County; 3. Any and all deductibles or self-insured retentions shall be assumed by and be at the sole risk of the Township; 4. The Township shall be responsible for their own property insurance for all equipment and personal property used and/or stored on County property; Page 1 of 2 5. The Commercial General Liability and Commercial Automobile Liability policies along with any required supplemental coverages shall be endorsed to name the County of Oakland and it officers, directors, employees, appointees and commissioners as additional insured where permitted by law and policy form; 6. The Township shall require its contractors or sub-contractors, not protected under the Township's insurance policies, to procure and maintain insurance with coverages, limits, provisions, and/or clauses equal to those required in this Agreement; 7. Certificates of insurance must be provided no less than ten (10) Business Days prior to the County's execution of the Agreement and must bear evidence of all required terms, conditions and endorsements; and 8. All insurance carriers must be licensed and approved to do business in the State of Michigan and shall have and maintain a minimum A.M. Best's rating of A- unless otherwise approved by the County Risk Management Department. Page 2 of 2 Resolution #16218 August 18, 2016 Moved by Fleming supported by Quarles the resolutions (with fiscal notes attached) on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Dwyer, Fleming, Gingell, Hoffman, Jackson, Kochenderfer, KowaII, Long, McGillivray, Middleton, Quarles, Scott, Spisz, Taub, Weipert, Woodward, Zack, Bowman, Crawford. (19) NAYS: None. (0) A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the Consent Agenda were adopted (with accompanying reports being accepted). HEARN OPROVE 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 August 18, 2016, 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 18 th day of August, 2016. Lisa Brown, Oakland County