HomeMy WebLinkAboutResolutions - 2016.08.18 - 22531NNINp AND BUILI311,I.G-C—QMI1ITTEE
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 boundaiy 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 pal tilers, and/or any such persons,
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SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT
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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. 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 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 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
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SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT
September 16, 7015
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 perfou ). 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
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SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT
September 16, 2611
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
nonpeiformance 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.
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SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT
September I,2015
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 perform 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 -Lelia 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,
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SAFTEY PATH PROJECT INTERLOCAL AGREEMENT
September 16, 2015
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. ey resolution of the Charter Township of Independence Board of
Trustees, to execut this A reement mail. -half of the Township.
7i____111111114 064-046\5
EXECUTED: Parrick J. Kittle, Supervisor DATE:
Charter Township of Independence
WITNESSED: 74441 - 71q41/(4d'
L Lw/
DATE: Oô5
PRINT NAME:
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SAFTEY PATH PROJECT - INTERLO CAL AGREEMENT
September 16, 2015
IN WITNESS WHEREOF, Michael J. Gingen, 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:
Michael J. Gingell, Chairperson
Oakland County Board of Commissioners
WITNESSED: DATE:
PRINT NAME:
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:
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SAFTEY PATH PROJECT - INTERLOCAL AGREEMENT
September 16, 2015
•ZAICLAND COUNTY PARKS
N=1
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,
FISCAL NOTE (MISC. #16176) August 18, 2016
BY: Finance Committee, Tom Middleton, 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 and 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 resolution authorizes an interlocal agreement between Oakland County and the Charter
Township of Independence for 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.
2. The Interlocal agreement proposed as a joint agreement between Oakland County and the
Charter Township of Independence for this construction project has been reviewed by the
Oakland County Corporation Counsel.
3. Agreement states the Township shall perform or cause to be performed the ongoing maintenance
and/or replacement of the Safety Path, and upon project completion the Safety Path will be
incorporated into the Township's Safety Path System.
4. At its June 7, 2016 meeting, the Oakland County Parks and Recreation Commission approved
the FY2017-FY2019 Parks and Recreation Operating Budget which includes Safety Path
expense funding of $807,000 in FY2017 and $504,820 in FY2018, in addition, expenses in the
amount of $34,114 have been incurred in FY2016, for a total estimated overall project cost of
$1,345,934.
5. The Parks and Recreation Commission budget approval, described above, also includes revenue
of $600,000 to be received in FY2018 from the Township once the project is completed.
6. A budget amendment is not required.
FINANCE COMMITTEE VOTE:
Motion carried unanimously on a roll call vote with Zack voting no.
Resolution #16176 August 18, 2016
Moved by Weipert supported by McGillivray the resolution (with fiscal note attached) be adopted.
AYES: Gingell, Hoffman, Jackson, Kochenderfer, KowaII, Long, McGillivray, Middleton, Quarles,
Scott, Spisz, Taub, Weipert, Woodward, Zack, Bowman, Crawford, Dwyer, Fleming. (19)
NAYS: None. (0)
A sufficient majority having voted in favor, the resolution (with fiscal note attached) was adopted.
d1,-)-3p
I HEREBY APPROVE- THIS RESOLUTION
CHIEF DEPUTY COUNTY EXECUTIVE
ACTING PURSUANT TO MCL 45559A (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 18th day of August, 2016.
Lisa Brown, Oakland County