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HomeMy WebLinkAboutResolutions - 2018.05.02 - 23512iSsioner Janet4aeRson Strict #21 MISCELLANEOUS RESOLUTION #18177 BY: Commissioners Bill Dwyer, District #14; Marcia Gershenson, District *13; Janet Jackson, District *21 IN RE: BOARD OF COMMISSIONERS — SCHOOL DRINKING WATER STATION PROGRAM — PROGRAM PARTICIPATION AGREEMENT BETWEEN OAKLAND COUNTY AND FARMINGTON PUBLIC SCHOOL DISTRICT To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS, the Oakland County Board of Commissioners, pursuant to MR *17289, as amended by MR *18016, recognized that the County can promote public health and establish lifelong nutrition habits by supplying increased access to water for school age children through the School Drinking Water Station Program; and WHEREAS Oakland County established the School Drinking Water Station Program with the intention to assist eligible schools by offering a one-time bulk purchase of drinking water stations; and WHEREAS the Oakland County Board of Commissioners authorized the School Drinking Water Station Subcommittee to approve and distribute a Program Participation Agreement to identified eligible, participating Oakland County schools; and WHEREAS Oakland County Corporation Counsel has reviewed the Program Participation Agreement; and WHEREAS under the terms and conditions of the attached Program Participation Agreement, Oakland County agrees to purchase 9 units of the Elkay EZH20 model *LMASMB and 2 units of the Elkay EZH20 model *LZS8WSLP Drinking Water Filling Stations as requested by the Farmington Public School District; and WHEREAS the Farmington Public School District has approved and executed a Program Participation Agreement prepared by Corporation Counsel in accordance with requirements provided in the policies and procedures of the program as approved by the Board of Commissioners including supplementary policies approved by the School Drinking Water Station Program Subcommittee; and WHEREAS the Farmington Public School District has demonstrated that it is willing to take delivery of the units for those district schools eligible under the program policy; and WHEREAS Oakland County's share of the Fiscal Year 2018 authorized amount of the School Drinking Water Station Program funding for the drinking water station units requested by the Farmington Public School District amounts to $6,039; and WHEREAS one-time funding was set aside in the General Fund Unfunded Mandates Assigned Fund Balance (GL Account *383515) for water quality initiatives and is able to cover the $6,039 school drinking water station program allocation for the Farmington Public School District; and WHEREAS upon review of the program agreement, the Board of Commissioners has determined that the completion of the program will promote public health and establish positive lifelong nutrition habits by supplying increased access to water for youth in publicly funded Oakland County elementary schools. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves the Program Participation Agreement with the Farmington Public School District. BE IT FURTHER RESOLVED the Oakland County Board of Commissioners authorizes the Chairman of the Board of Commissioners to execute the Program Participation Agreement with the Farmington Public School District as prepared by Corporation Counsel for the School Drinking Water Station Program. BE IT FURTHER RESOLVED that the Oakland County Clerk is requested to forward copies of this resolution to Oakland County Fiscal Services and the Farmington Public School District. Chairperson, we ,rrv9 the adoption of the foregoing Resolution. Commissioner Marcianershenson District *13 PROGRAM PARTICIPATION AGREEMENT OAKLAND COUNTY SCHOOL DRINKING WATER STATION PROGRAM BETWEEN OAKLAND COUNTY AND FARMINGTON PUBLIC SCHOOL DISTRICT This Agreement ("Agreement") is made and entered into between the County of Oakland, ("County") (DUNS #136200362), a Michigan Constitutional and Municipal Corporation, a political subdivision of the state of Michigan, whose address is 1200 North Telegraph, Pontiac, Michigan 48341 and the Farmington Public School District ("District"), a Michigan Statutory Corporation per the Revised School Code of 1976 being MCL 380.1 et seq., whose address is 32500 Shiawassee Street, Farmington, MI 48336, In this Agreement, either the District or the County may also be referred to individually as a "Party" or jointly as the "Parties." PURPOSE OF AGREEMENT. The County is seeking to provide funding utilized solely for the purposes of purchasing approved Drinking Water Filling Stations ("Station") for eligible schools. The Parties agree, subject to the terms and conditions set forth in this Agreement, to provide funds and/or services as described in Exhibits I. The Parties are authorized to enter into this Agreement pursuant to P.A. 1976, No. 451 (MCL 380.1 et seq.), P.A. 1973, No. 139 (MCL 45.551 et seq.), P.A. 1978, No. 368 (MCL 333.1101 et seq.), and P.A. 1851 No. 156 (MCL 46.1 et seq.). In consideration of the mutual promises, obligations, representations, and assurances in this Agreement, the Parties agree as follows: 1. DEFINITIONS. In addition to any other defined terms in this Agreement (e.g., "Agreement," "County," "District," "Party," or "Parties," etc.), the Parties agree that for all purposes, and as used throughout this Agreement, the following words and expressions used throughout this Agreement, whether used in the singular or plural, within or without quotation marks, or possessive or nonpossessive, shall be defined, and interpreted as follows: 1.1. Agreement means the terms and conditions contained in this Agreement, including any subsequent written modification, amendment, or addendum. 1.2. Amendment means any change, clarification, or modification to this Agreement, 1.3. Claim(s) means any loss; complaint; demand for relief or damages; lawsuit; cause of action; proceeding; judgment; penalty; costs or other liability of any kind which is imposed on, incurred by, or asserted against the County or for which the County may become legally or contractually obligated to pay or defend against, whether commenced or threatened, including, but not limited to, reimbursement for reasonable 1 attorney fees, mediation, facilitation, arbitration fees, witness fees, court costs, investigation expenses, litigation expenses, or amounts paid in settlement. 1.4. County means as this term is defined above and as used in this Agreement, "County" shall be further defined to include any and all "County Agents," as defined herein. 1.5. County Agent shall be defined as any and all elected officials, appointed officials, directors, board members, council members, commissioners, authorities, other boards, committees, commissions, employees, third-party contractors, departments, divisions, volunteers, representatives, and/or any such persons' successors (weather such persons act or acted in their personal representative or official capacities), and/or "County Agents" shall also include any person who was a County Agent any time during the term of this Agreement but, for any reason, is no longer employed, appointed, or elected and serving as an County Agent, and shall include the any "Concurrent Board Member." 1.6. District means the Farmington Public School District as defined above and shall further be defined to include District Employees. 1.7. District Employee includes, without limitation, its governing Board, any and all of its departments, divisions, elected and appointed officials, directors, board members, authorities, committees, employees, teachers, administrators, principal, assistant principals, psychologists, social works, teacher's aids, clerks, independent contractors, agents, volunteers, and/or any such persons, predecessors, or successors. 1.8. Drinking Water Filling Station(s) means a vendor supplied County purchased water filling station. 2. SCOPE OF SERVICES AND FINANCES. Subject to the terms and conditions in this Agreement, and except as otherwise provided by law, the Parties agree to the following: 2.1. The County agrees to provide the Drinking Water Filling Stations as detailed in the attached Exhibit I which is hereby incorporated by reference and made part of this Agreement. 2.2. The District agrees all Drinking Water Filling Station(s) will be delivered to one District location address by the County approved bid vendor. 2.3. The District agrees to notify the County within 14 days of delivery, by way of Proof of Delivery, the receipt of the Drinking Water Filling Stations(s). 2.4. The District agrees to install at its cost all delivered Stations pursuant to all applicable building codes and/or regulations within 120 days of delivery. 2.5. The District agrees to provide a post installation report notifying the County of all delivered units installed and functioning properly based upon manufacture's guidelines and specifications. 2.6. The District agrees to maintain at its cost all delivered and installed Stations in accordance with the manufactures recommended guidelines including maintenance and filter replacement. 2.7. The District agrees to affix a decal/sticker, as provided by the County, to all installed Stations. 2 3. ASSURANCES AND WARRANTIES. 3.1. The District agrees to comply with the provisions of any and all laws relating to nondiscrimination and conflict of interest with governmental employees and, specifically, any County Agent. The District warrants to avoid any conflict of interest, whether real or perceived. 3.2. The District agrees that it is a publicly owned facility that is physically located and established under Act 451 of 1976, as amended, or under other law of the State of Michigan, has as its primary mission the teaching and learning of academic and vocational-technical skill and knowledge, contains age groups of pupils enrolled 12 years old or younger, and is operated by a school district, intermediate school district, or authorized public school academy within the jurisdiction of Oakland County. 3.3. The District agrees and acknowledges that the installation of a Station under this Agreement is not to overcome all contaminates existing within the District's water supply. 3.4. Any and all County services or goods set forth in this Agreement are provided on an "as-is and "as-available" basis, without any warranty of any kind, to the maximum extent permitted by applicable law. The County hereby expressly further disclaims any and all warranties, of any kind, whether express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and/or that any County services under this Agreement will meet any District's needs or requirements, will be uninterrupted, timely, secure, error or risk free/or that any deficiencies in any County service. The entire risk arising out of the use of any and all County services herein remains at all times, with the District to the maximum extent permitted by law. 4. INDEMNIFICATION, 4.1. The District shall indemnify, defend, and hold the County harmless from all Claims, incurred by or asserted against the County by any person or entity, which are alleged to have been caused directly or indirectly from the acts or omissions of the District. 4,2. 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. LIMITS AND EXCLUSIONS ON SERVICES. 5.1. In no event and under no circumstances in connection with or as a result of this Agreement shall the County be liable to the District or any other person, for any consequential, incidental, direct, indirect, special punitive, or other similar damages whatsoever (including, without limitation, damages for loss of business, profits, business interruption, or any other pecuniary loss or business detriment) arising out of this Agreement for any County services hereunder or any District use or inability to use any County services, even if the County has been advised of the possibility of such damages. 3 6. NO IMPLIED WAIVER Except as otherwise expressly provided for in this Agreement: 6.1. 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. 6.2. 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 term, condition, or provision of this Agreement. 6.3. No waiver by either Party shall subsequently affect its right to require strict performance of this Agreement. 7. AUDITING. The Parties agrees that records regarding this Agreement will be available upon request for review or audit. 8. AGREEMENT INTERPRETATION. The Parties agree that performance under this Agreement will be conducted in compliance with all federal, Michigan, and local laws and regulations. This Agreement is made and entered into in the County of Oakland and in the State of Michigan. The language of all parts of this Agreement is intended to and under all circumstances to be construed as a whole according to its fair meaning and not construed strictly for or against any Party. 9. PERAHTS AND LICENSES. The District, and District's sole expense, shall be responsible for obtaining and continuously maintain throughout the term of this Agreement all necessary licenses, including any business and professional licenses, permits, certificates, and any other required governmental authorizations necessary for District to perform any District obligation under this Agreement. 10. EFFECTIVE DATE OF THE AGREEMENT. The Parties agree that this Agreement, and/or any subsequent amendments thereto, shall not become effective prior to the approval by the Oakland County Board of Commissioners and the Farmington Public School District. The approval and terms of this Agreement, and/or any possible subsequent amendments thereto, shall be entered in the official minutes and proceedings of the Oakland County Board of Commissioners and the Farmington Public School District Board and shall also be filed with the office of the Clerk of the County. 11. CANCELLATION OF AGREEMENT, Either Party may cancel this Agreement for any reason including convenience at any time prior to purchase of a Station(s). If the District cancels this Agreement after the District has received delivery of a Station(s) the Station(s) will be the responsibility of the District. If the Station is still in the original unopened carton the Station may be returned to the Vendor at the District's Expense. Any refund for the return of a Station will be due and paid to the County. At no point, will the County accept or receive any unwanted Stations. 12. DISCRIMINATION. The Parties shall not discriminate against their employees, agents, applicants for employment, or another person or entities with respect to hire, tenure, terms, conditions, and privileges of employment, or any matter directly or indirectly related to employment in violation of any federal, state or local law. 13. RECORD RETENTION. The Parties agrees to maintain records in accordance with state law. All records relative to this Agreement shall be available at any reasonable time for examination or audit by the Parties. 4 14. FORCE MAJEURE. Each Party shall be excused from any obligations under this Agreement during the time and to the extent that a Party is prevented from performing due to causes beyond the Party's control, including, but not limited to, an act of God, war, fire, strike, labor disputes, civil disturbances, reduction of power source, or any other circumstances beyond the reasonable control of the affected Party. Reasonable notice shall be given to the other party of any such event. 15. 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. 16. 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 number, any reference to the male, female, or neuter genders, and any possessive or nonpossessive use in this Agreement shall be deemed the appropriate plurality, gender or possession as the context requires. 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: (1) the date of actual receipt; (2) the next business day when notice is sent express delivery service or personal delivery; or (3) three days after mailing first class or certified U.S. mail. 17.1. If Notice is sent to the County, it shall be addressed and sent to: 1200 North Telegraph, Pontiac, Michigan 48341, 17.2. If Notice is sent to the Farmington Public School District, it shall be addressed and sent to: 32500 Shiawassee Street, Farmington, MI 48336. 17.3. Either Party may change the address and/or individual to which Notice is sent by notifying the other Party in writing of the change. 18. GOVERNING LAW. This Agreement shall be governed, interpreted, and enforced by the Jaws of the State of Michigan without giving effect to its conflict of law principles. 19. JURISDICTION AND VENUE. Except as otherwise required by law or court rule, any action brought to enforce, interpret, or decide any Claim(s) arising under or related to this Agreement shall be brought in the Sixth 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. The choice of forum set forth above shall not be deemed to preclude the enforcement of any judgment obtained in such forum or taking action under this Agreement to enforce such judgment in any appropriate jurisdiction. 20. AGREEMENT MODIFICATIONS OR AMENDMENTS. Any modifications, amendments, rescissions, waivers, or releases to this Agreement must be in writing and executed by both Parties. The Parties agree that no such modification, rescission, waiver, release or amendment of any provision of this Agreement shall become effective against the 5 County unless signed for by the Oakland County Board of Commissioners. The Parties further agree that this Agreement shall not be changed, supplemented, or amended, in any manner, except as provided for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend or modify this Agreement in any manner. 21. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between the Parties along with the Agreement Documents. In entering into this Agreement, the District acknowledges that it has not relied upon any prior or contemporaneous agreement, representation, warranty, or other statement by the County and/or any County Agent that is not expressly set forth in this Agreement, and that any and all such possible, perceived or prior agreements, representations, understandings, statements, negotiations, understandings and undertakings, whether written or oral, in any way concerning or related to the subject matter of this Agreement are fully and completely superseded by this Agreement. 21.1. If there is a contradicting term or condition in any Exhibit to this Agreement, the Agreement controls. 21.2. It is further agreed that the terms and conditions of this Agreement are contractual and binding and are not mere recitals. The Parties acknowledge that this Agreement contains certain limitations and disclaimers of liability. FARM! GTON PUBLIC SCHOOL DISTRICT: BY: " fe-44., DATE: THE COUNTY OF OAKLAND BY: DATE: Michael J. Gingen, Chairperson, Oakland County Board of Commissioners 6 BOARD OF COMMISSIONERS 1200 N. Telegraph Road Pontiac, MI 48341-0475 Phone: (248)858-01N Fax: (248) 858-1572 EXHIBIT I SCHOOL DRINKING WATER STATION PROGRAM Background: Oakland County has established an Oakland County School Drinking Water Station Program for the purposes of promoting public health and establishing lifelong nutrition habits by supplying increased access to water for elementary school age students in Oakland County. The County intends for this Program to assist eligible schools by offering a one-time bulk purchase of drinking water stations. DISTRICT INFORMATION: Legal Name of District: Farmington Public Schools SUBCOMMITTEE APPROVED SCHOOL DRINKING WATER STATION(S) ALLOCATION: Name of School: Elkay EZH20, LMASME Quantity: Elkay EZH20, LZSMNSLP Quantity: School Level: (e.g, K-6 or PK-3) Beechview Elementary 1 0 K-6 Forest Elementary 1 0 K-6 Gill Elementary 1 0 K-6 Hillside Elementary 1 o K-6 Kenbrook Elementary 1 0 K-6 Lanigan Elementary 1 0 K-6 Longacre Elementary 1 o K-6 Wood Creek Elementary 1 0 K-6 Farmington STEAM Academy 1 0 K-8 Alameda Early Childhood 0 1 PK-3 FCS Early Childhood 0 1 PK-3 flfr • 2, CO U NT V ICH Hi GA N BOARD or COMMISSIONERS OAKLAND COUNTY SCHOOL DRINKING WATER STATION SUBCOMMITTEE Contact: Michael Andrews, Senior Analyst (248) 858-5115 andrewsmb4oakgov com SCHOOL DRINKING WATER STATION ORDER FORM GENERAL INFORMATION DISTRICT NAME: Farmington Public Schools DELIVERY CONTACT NAME: Jim Pearse DATE OF ORDER: 03'10 '2018 248.489.3440 PHONE (Work): EMAIL: PM' pearse@farmington.k12.mi.us DELIVERY ADDRESS (PROVIDE ONLY ONE CENTRAL LOCATION): 29350 West Ten Mile Road Farmington Hills, MI 48336 Mon thru Fri Between 7AM - 4PM RECEIVING DAYS AND HOURS: REQUESTED DATE OF DELIVERY: Before June 1 if possible PROGRAM INFORMATION MODEL: Elkay EZH20, LMASMB Bottle Filler ONLY Elkay EZH20, LZS8VVSLP — Combo Filler and Fountain SIGNATURE OF AUTHORIZED PARTY: Jim Pearse QUANTITY: 9 2 1:22.1.282216nad J2r•Pborro Dt Poar22, idoeic, ,F2.1,11.1 1212n80222,2, 22•122112142.22.1, :2m,ngton 11220 s 1227i:2018 0110 07,11.35 41.-rxr NAME OF AUTHORIZED PARTY: Jim Pearse, Asst Director - Fac Mgt PLEASE RETURN ORDER FORM BY FRIDAY, APRIL 20 TH 2018 Electronic delivery accepted at: andrewsmboakqov.com 1200 North Telegraph Road I County Building 12E I Pontiac, MI 48341 Resolution #18177 May 2,2018 The Chairperson referred the resolution to the Finance Committee. There were no objections.