HomeMy WebLinkAboutResolutions - 2018.09.27 - 23793MISCELLANEOUS RESOLUTION #18317 September 5, 2018•
BY: Commissioner Philip Weipert, Chairperson, Planning and Building Committee
IN RE: WATER RESOURCES COMMISSIONER — CITY OF FARMINGTON HILLS SEWER SYSTEM
OPERATION AND MAINTENANCE AGREEMENT
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS the City of Farmington Hills owns a sanitary sewer system currently operated and maintained
through Oakland County by the office of the Water Resources Commissioner on a non-profit basis; and
WHEREAS the City of Farmington Hills desires to engage the County to continue to operate and maintain
its sewer system on a non-profit basis pursuant to the terms of an operation and maintenance agreement;
and
WHEREAS Oakland County, by and through the office of the Water Resources Commissioner, has qualified
personnel capable of providing sanitary sewer operations and maintenance services; and
WHEREAS the terms of an agreement for the operation and maintenance of the City of Farmington Hills
sanitary sewer system by Oakland County through the office of the Water Resources Commissioner have
been negotiated, set forth in writing, and approved by resolution of the Farmington Hills City Council on
August 13, 2018.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves
the City of Farmington Hills Sewer System Operation and Maintenance Agreement.
BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners hereby directs its
Chairperson or designee to execute the City of Farmington Hills Sewer System Operation and Maintenance
Agreement.
Chairperson, on behalf of the Planning and Building Committee, I move the adoption of the foregoing
resolution.
aimmissioner Philip Weipert, District #8
Chairperson, Planning and Building Committee
PLANNING AND BUILDING COMMITTEE
Motion carried unanimously on a roll call vote.
Form DC-001
OAKLAND COUNTY
WATER RESOURCES COMMISSIONER MEMORANDUM
TO: Commissioner Philip J. Weipert, Chairperson
Planning and Building Committee, Board of Commissioners
FROM: Kelsey Cooke, WRC Senior Attorney
SUBJECT: City of Farmington Hills Water and Sewer Operations and Maintenance Contracts
DATE: August 28, 2018
In June 2017, the office of the Water Resources Commissioner and Oakland County Corporation
Counsel began a joint review of existing water and sewer system operations and maintenance
contracts between Oakland County and local cities, villages and townships. WRC is the county agent
for these contracts. Many of the contracts were found to be outdated, insufficient or incomplete.
Upon review of the contracts, they were prioritized and WRC began discussions with the communities
based on the prioritized list. The City of Farmington Hills is at the top of the list for new water and
sewer operation and maintenance contracts. At a meeting of City Council on August 13, 2018 both
water and sewer operations and maintenance contracts were approved by a unanimous vote and a
resolution was passed authorizing execution of the contracts.
In addition to the operation and maintenance contracts with the City, as of July 1, 2018 the City joined
the County's general liability and professional liability insurance policies as a named insured by
paying an allocated annual premium. This coverage protects the County and also the City for claims
of bodily injury or property damage resulting from the operation of the City's water and sewer
systems.
The terms of the contracts include the authorization for the County to operate and maintain the water
and sewer systems on behalf of the City on a non-profit basis and in accordance with a scope of
services to be performed by the WRC, set forth as an exhibit to each contract. Terms regarding
general liability and professional liability insurance coverage are also included in the contract
language, along with setting rates and charges, and the fact that all expenses of the systems are
billed as a system cost to the enterprise fund held by the County for the benefit of the City.
Furthermore, the operations of the systems will be compensated from the revenue from the City's
system. The term of each contract is for ten years with a ten year renewal option and a termination
notice of 180 days for any reason.
Requested Committee Action: Recommend adoption of the attached Resolution to the Board of
Commissioners.
Contact: Kelsey Cooke cookek@oakgov.com 248-452-2013
OAKLAND COUNTY WATER RESOURCES COMMISSIONER
Page 1 of 1
Rev.: 11105/08
CITY OF FARMINGTON HILLS
SEWER SYSTEM
OPERATION AND MAINTENANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
2018, by and between the COUNTY OF OAKLAND, a Michigan constitutional corporation
("County"), whose address is 1200 N. Telegraph, Pontiac, Michigan, 48341 and the CITY OF
FARMINGTON HILLS, a Michigan municipal corporation, whose address is 31556 West Eleven
Mile Road, Farmington Hills, Michigan, 48336 (City). In this Agreement, either the County
and/or the City may also be referred to individually as a 'Party" or jointly as "Parties."
Recitals:
WHEREAS, the City owns a sewer system that is depicted in Exhibit A and known as
the City of Farmington Hills Sewer System and as it may be expanded or altered from time to
time (the "System"); and,
WHEREAS, the City desires to engage the County to operate and maintain the System
on behalf of the City on a non-profit basis and in accordance with the terms and conditions set
forth in this Agreement; and,
WHEREAS, the County, by and through the office of the Oakland County Water
Resources Commissioner ("WRC"), has qualified personnel capable of providing sewer
operations and maintenance services; and,
WHEREAS, the Michigan Constitution of 1963, Article 7, § 28, and the Urban
Cooperation Act of 1967, being MCL 124.501, et. seq. (the "Act 7"), authorizes a political
subdivision to exercise jointly with any other political subdivision any power, privilege or
authority which such political subdivisions share in common with which each might exercise
separately; and,
WHEREAS, pursuant to resolutions adopted by their respective legislative bodies, the
Parties each have been authorized to execute this Agreement for the Services according to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual promises,
representations, and agreements set -forth in this Agreement, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the County and the
City mutually agree as follows:
Article I. Statement of Authority and Purpose.
1.1 Authority. Pursuant to Act 7 of 1967, and any other applicable laws of the State of
Michigan, the County and the City enter into this Agreement to establish terms and
conditions for the operation and maintenance of the System. Each Party agrees to take
all actions reasonably necessary to effectuate the objectives set forth in this Agreement.
1.2 Purpose. The purpose of this Agreement is to authorize the County to operate and
maintain the System on behalf of the City on a non-profit basis and in accordance with
the Services detailed in Exhibit B attached hereto. In exchange for the Services, the
County shall be reimbursed for its Costs and Overhead from the Revenue collected and
deposited in the System Enterprise Fund maintained by the County on behalf of and for
the benefit of the City.
Article IL Definitions.
In addition to the above defined terms (i.e. "County", "City", "WRC'', "Party" and "Parties') and
any terms defined in other sections of this Agreement (e.g., "Services"), the Parties agree that
the following words and expressions, whether used in the singular or plural, possessive or non-
possessive, and/or either within or without quotation marks, shall be defined and interpreted as
follows:
2.1 "Agreement' shall mean each of the various provisions and parts of this document,
including all attached Exhibits and any amendments thereto, as may be executed and
approved by the Parties,
2.2 "Cost(s)" shall be defined as the labor, including statutory and customary fringe benefits,
overtime, material and supplies, power and utility services, vehicle/equipment rental and
subcontractor services devoted to the Services as defined in this Agreement.
2.3 "Contractor" shall be defined as an independent contractor engaged by the County to
perform the Services and responsibilities necessary to carry out the objectives under this
Agreement.
2.4 "County Agent" or "County Agents" shall be defined as any and all Oakland County
elected officials, appointed officials, directors, board members, commissioners,
authorities, other boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons'
successors or predecessors (whether such persons act or acted in their personal
representative or official capacities), and/or any persons acting by, through, under, or in
concert with any of them, excluding the City and/or any City Agents, as defined herein.
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2.5 "WRC Personnel" as used in this Agreement shall be defined as a specific subset of,
and included as part of the larger group of, County Agents as defined above and
assigned by the County to work in the office of the Oakland County Water Resources
Commissioner as shown in the County budget and/or personnel records of the County.
2,6 "City Agent" or "City Agents" shall be defined to include any and all City officers, elected
officials, appointed officials, directors, board members, council members, authorities,
boards, committees, commissions, - employees, managers, departments, divisions,
volunteers, agents, representatives, consultants, and/or any such persons' successors
or predecessors (whether such persons act or acted in their personal, representative, or
official capacities), and/or any persons acting by, through, under, or in concert with any
of them, excluding the County and/or any County Agents, as defined herein,
2.7 "Claim(s)" shall be defined to include any and all alleged claims, complaints, demands
for relief or damages, lawsuits, and causes of action, whether in law or equity, tort,
contract, or otherwise, by third parties, arising out of the ownership, operation,
maintenance of the System, but does not include claims between the Parties.
2,8 "Overhead" shall be defined to include the following: all allocation of the labor cost,
including statutory and customary fringe benefits, of personnel responsible for
administering this contract or supervising the work performed in connection with this
Agreement; an allocation of expenses of the WRC; and an allocation of indirect costs of
the County charged to the VVRC for support services, such as (but not limited to) legal,
personnel, accounting, computer support, and insurance/risk management. The
Overhead expense allocations and methodology are set forth in Exhibit C.
2.9 "Rates and Charges" shall be defined as the charges and other fees, such as late fees,
connection charges, capital charges, meter charges, assessed against and paid by the
users of the System for the services provided by the City, including without limitation the
Services provided pursuant to this Agreement, as periodically established by ordinance
and/or resolution of the City.
2.10 "Revenue" shall be defined as the funds derived from the Rates and Charges assessed
against and paid by customers or users of the System, and other sources of revenue,
such as grants.
2.11 "State" shall be defined as the "State of Michigan," a sovereign governmental entity of
the United States, and shall also include within its definition any and all departments or
agencies of state government.
2.12 "System Enterprise Fund" shall be defined as the account for the System established
and maintained by the County on behalf of the City.
Article Ill. County Responsibilities; WRC Operation and Maintenance Services.
3.1 Services. The County agrees to perform the operation and maintenance services for the
System (all of the following being referred to in this Agreement as the "WRC Services" or
"Services") as set forth in Exhibit B attached to this Agreement.
(a)
The Services to be provided by the County to the City under this Agreement shall
be performed by the County's "WRC Personnel" and/or Contractor. The County
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will maintain and designate a sufficient number of County Agents and VVRC
Personnel, having sufficient qualifications, in order to carry out and provide the
Services under and in accordance with this Agreement. However, the County will
give due consideration to any input received from the City concerning the number
and charges of Contractors and WRC Personnel assigned to provide Services for
the System. The City shall have the opportunity to review and provide input on
Requests for Proposals from Contractors for capital improvement or repair
projects estimated to cost in excess of $30,000.00. The City shall also have the
opportunity to review and provide input into the County's overall panel of
Contractors assigned to undertake services with respect to the System.
(b) The County shall be responsible for furnishing all WRC Personnel and
Contractors with all job instructions, job descriptions and job specifications, and
shall in all circumstances control, supervise, train or direct all VVRC Personnel in
the performance of any and all Services under this Agreement. The County shall
remain the sole and exclusive employer of all County Agents and WRC
Personnel.
(G)
This Agreement is neither intended, nor shall it be interpreted to create, change,
or otherwise affect or control, in any manner any employment right, privilege,
benefit, or any other term or condition of employment, of any kind or nature
whatsoever, in, upon, or for any County Agent or WRC Personnel. Except as
expressly provided for under the terms of this Agreement and/or laws of this
State, no County Agent or VVRC Personnel, while such person is currently and/or
actively employed by the County shall be employed or utilized to perform any
other services by or for the City during the term of this Agreement. This section
shall not prohibit the City from employing any person who was a former County
Agent but is no longer employed in that capacity by the County.
3.2 System Capital Replacement Expenditures. The County shall not expend funds from the
System Enterprise Fund for capital replacement or improvement projects without prior
approval from the City.
3.3 Independent Contractor. At all times and for all purposes under the terms of this
Agreement, the County and/or any and all County Agents legal status and relationship
to the City shall be that of an Independent Contractor.
3.4 Insurance - County. The County will endeavor to obtain and to maintain for the duration
of this Agreement the following insurance coverages with insurance companies licensed
to do business in the State of Michigan, but only if such insurance coverage is
commercially available. It is understood and agreed, that all costs, including the
premium, self-insured retention or deductible, shall be included as a System Cost:
(a) Professional Liability or Errors and Omissions with limits of $10,000,000 per
occurrence and $15,000,000 aggregate.
(b) Commercial General Liability — with limits of $10,000,000 per occurrence and
$15,000,000 aggregate.
(c) Certificates of Insurance.
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So long as the City maintains current on its annual premium for the
coverage outlined herein, it shall be a Named Insured under the policy.
(d) Non-Exclusivity and Limitations of Insurance Coverage. It is understood by the
City, that the insurance coverages set forth herein and obtained and maintained
by the County is not exclusive to this Agreement, Meaning, that the County may
purchase and maintain the insurance coverages to insure the County (its
respective elected officials, officers, employees, and agents) against such Claims
arising from the County Services provided under this Agreement, as well as
similar Services the County provides to other municipal public corporations. As
such, the City, along with other participating municipal corporations, will share in
the cost of the insurance premium paid by the County, To this end, the County
agrees to reasonably allocate the premium paid for the insurance to the various
water and sewer systems operated and maintained by the County, including the
City's System, and provide reasonable justification for the allocation of said cost
to the City. In addition, it is understood and agreed, that the purchase of
insurance and payment of the premium (as a System Cost), does not guarantee
insurance coverage for any Claim. All policies set forth herein are subject to the
terms, conditions, and limitations set forth in the insurance policies. As such
uninsured Claims shall be and remain a System Cost. Moreover, insured Claims
arising from the County's Services to a municipal water and sewer system, other
than the City's System, may limit or possibly eliminate coverage of a Claim
arising from the County's Services under this Agreement. In the event of such an
occurrence, it is understood that an otherwise insured Claim that is in excess of
any valid and collectible insurance rights/policies, shall be and remain a System
Cost.
3,5 Permit Assistance. The County will assist the City in the procurement of all permits,
guarantees, warranties, easements, licenses, and other similar approvals and consents
necessary to operate and maintain the System received by or granted to the City as the
owner of the System.
3.6 Regulatory Compliance. The County will supervise all regulatory compliance and
financial transactions, except for the enforcement of the City's ordinances or regulations.
3.7 Disbursing Funds. Upon request from the City for the disbursal of funds from the System
Enterprise Fund, the County shall promptly disburse funds to the City in the amount and
manner requested, provided that the balance remaining in the System Enterprise Fund
is adequate for the operation and maintenance of the System,
Article IV. City's Responsibilities.
4.1 Ordinance — Rates and Charges. The City has adopted or shall hereafter adopt one or
more ordinances or resolutions as are necessary under the terms of the Agreement,
which provides the Rates and Charges sufficient to provide the Revenue necessary to
reimburse the County for its Costs and Overhead related to the Services provided by the
Agreement; and provide for the billing and collection of the Rates and Charges
pertaining to the System.
4.2 Ordinance — Enforcement. The City is responsible for enforcement of the City's
ordinances and regulations. The City has adopted or shall hereafter adopt one or more
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ordinances regulating or prohibiting the discharge of fats, oils and grease, or industrial
waste to the System, including those pertaining to user pretreatment standards; and the
billing and collection of Costs related thereto.
4.3 Capital Replacement of System. The City shall be responsible for expenditures for all
capital replacement of System components.
4.4 Testing and Sampling Fees; Consultant Fees. The City agrees that the term Costs
includes, but not limited to, fees for testing, sampling, engineering services or studies,
master planning, capital improvements as approved by the City, as well as all of the
costs related to procurement of the same, are a Cost which may be accounted for in the
Rates and Charges.
4.6 Permits - City. The City will be responsible for procuring, and in accordance with their
respective terms, all permits, guarantees, warranties, easements, licenses, and other
similar approvals and consents necessary to operate and maintain the System received
by or granted to the City as the owner of the System.
4.6 City - Insurance.
(a) It shall be the responsibility of the City to determine and obtain real and personal
property insurance with limits that the City in its discretion, deems necessary and
appropriate for the System and components of the System. To the extent
permitted by law, and subject to the availability of funds necessary for the County
to operate and maintain the System, the City may include as a System Cost, the
City's cost of insurance set forth herein, including any premium, self-insured
retention or deductible. The County shall disburse funds to the City from the
System Enterprise fund upon request from the City to pay for the cost of real and
personal property insurance. In lieu of the City purchasing real and personal
property insurance described herein, if commercially available to the County, the
County, on behalf of the City, may purchase and maintain real and personal
property, and charge the same as System Cost.
(b) It shall be the responsibility of the City to determine and obtain General Liability
Insurance or self-insurance to protect the City's liabilities and exposures set forth
in Article VI.
4.7 Property Access. City will be responsible for and will secure the right of access
necessary for \NRC Personnel or Contractors to perform the Services under this
Agreement. The City will be responsible for all costs or Claims associated with securing
rights of access.
4.8 Compliance with State and Federal Law and Regulations. The City will be and remain
responsible for Costs associated with compliance with all federal, State, and local laws,
ordinances, regulations, and requirements in any manner affecting any work or
performance of this Agreement or with any City duty or obligation under any applicable
State or federal laws and/or regulations.
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4.9 System Ownership, Notwithstanding any other term or condition in this Agreement, no
provision in this Agreement is intended, nor shall it be construed, as constituting a
divestiture or forfeiture of the City's absolute ownership of and authority over the System.
Article V. Compensation for Services,
5.1 Compensation from System Revenue. The County's Costs and Overhead incurred for
the Services shall be compensated from the Revenue from the System, In the event that
the Costs and Overhead exceed the Revenue in any one year, then any deficiency may
be recovered by adjusting the Rates and Charges charged to customers of the System
or from the general fund of the City. In the event that annual Costs and Overhead are
less than the annual Revenue, then upon the sole discretion and direction of the City,
future rates to the customers may be adjusted to balance the account. The County shall
be required to perform an audit of its procedures with respect to the manner of the
computation and assignment of Costs and Overhead to the City within one (1) year of
the date of this Agreement, and shall provide the City with a copy of the results,
including any recommendations regarding Cost and Overhead computation and/or
assignment formulas and practices. Additionally, the City shall be entitled to conduct,
and/or may request the County to conduct, an independent audit of the County's records
relating to the computation and assignment of the City's Costs and Overhead at anytime.
The cost of conducting such a review or audit shall be a Cost of the System.
5.2 County Services Performed Non-Profit Basis. The City acknowledges and agrees that
the County will perform the operations and maintenance of the System on a nor-profit
basis for the benefit of the users of the system and therefore the County is without funds
to finance, operate and maintain the System except for the Revenue derived from the
System users. Therefore, it is understood and agreed that in no event shall the County
or its general fund be charged with or liable for the cost of operating, maintaining,
repairing, replacing, or administering the System. All Costs and Overhead associated
with the Services under this Agreement will be the responsibility of the City.
Article VI. Standard of Care; Warranty Waiver; Consequential Damages; Liability; and
PA 222 Liability.
6.1 Standard of Care; Waiver of Warranty; and Consequential Damages. The County will
perform the Services under this Agreement in accordance with the standard of care and
diligence normally provided by other professional firms providing similar Services.
However, the County makes no warranty, express or implied, with respect to any
Services provided. SPECIFICALLY, NO WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY IS MADE
OR TO BE IMPLIED BY THE COUNTY WITH RESPECT TO SERVICES PROVIDED
UNDER THIS AGREEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED IN
THIS AGREEMENT, IN NO EVENT SHALL THE COUNTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
WHATSOEVER UNDER CONTRACT, TORT OR OTHERWISE.
6.2 Liability for Claims. Except as otherwise provided in this Agreement, it is understood that
each Party shall be responsible for any Claims made against that Party and for the acts
or omissions of its respective employees or City/County Agents, With respect to Claims
that arise from the performance of this Agreement, each Party shall seek its own legal
representation and bear the costs associated with such representation including attorney
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fees. Except as otherwise provided in this Agreement, neither Party shall have any right
under any legal principle to be indemnified by the other Party or any of its employees or
Agents in connection with any Claim. 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 the privileges and immunities as provided
by law afforded to the Parties. The Parties expressly reserve all privileges and
immunities as provided by law.
6.3 PA 222 Liability for Third-Party Claims Caused by Defects or Infiltration and Inflow of
System. To the extent permitted by law, the City agrees to pay any and all Claims,
including the defense of and claims asserted against the County, for sewage disposal
system events as defined in Section 16 of Act 170 or the Public Acts of 1964, as
amended (by Public Act 222 of the Public Acts of 2001), MCL 691.1416, arising from
design or construction defects, or from the infiltration and/or inflow of storm water to the
System.
6,4 Force Majeure; System Malfunction; Misuse or Vandalism of System. The City will be
responsible for damage and liability to the System or components thereof caused by
flood, fire, Acts of God or other force majeure, civil disturbance, Acts of War, terrorism or
misuse of property. In addition, the City will be responsible for all Claims, damages and
liability caused by design and/or construction defects, malfunction or failure of the
System or any component thereof, sewer breaks, and vandalism provided the same is
not directly caused by the acts or omissions of County Agents.
6.5 No Third-Party Beneficiary. This Agreement does not create any rights or benefits to
parties other than the City and the County.
Article VII. Cooperation and Communication; Dispute Resolution.
7.1 Cooperation. The County agrees to ensure that all County Agents fully cooperate with
City and City Agents in the performance of all Services under this Agreement. The City
agrees to ensure that City Agents cooperate with WRC Personnel in the performance of
the Services under this Agreement,
7.2 Communication,. There shall be an open and direct line of communication established
and maintained between the Parties in order to promote the handling of both routine and
emergency situations in a timely and cooperative manner according to the
circumstances as they exist or become known. Each Party will designate one or more
liaisons for such purposes, and will notify the other Party of such designee(s). The
liaisons shall also be utilized for purposes of communicating and coordinating specific
needs, plans, instructions, issues, concerns and other matters relating to the System or
Services. The County shall notify the City at its earliest opportunity with respect to any
staffing changes or proposed staffing changes of the designated liaisons. The City may
provide input into the change or reassignment of liaisons assigned to the City,
7.3 Dispute Resolution. The Parties agree that any and all claims alleging a breach of this
Agreement or with respect to the Services provided under this Agreement shall first be
submitted to an alternative dispute resolution process. Such an alternative dispute
resolution process may include, but is not limited to, facilitation, binding arbitration, or
non-binding arbitration, The Parties shall agree upon the form and procedures for the
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agreed upon alternative dispute resolution process. If the matter is not resolved through
an alternative dispute resolution process, or if the Parties cannot agree upon the form
and procedures for the alternative dispute resolution process, the Parties may seek legal
recourse in a court of competent jurisdiction. For claims requiring immediate relief to
prevent irreparable harm, either Party may seek relief directly from a court of competent
jurisdiction without submitting the matter to the alternative dispute resolution process.
Article VIII. Term; and Termination.
8.1 Term. The Parties agree that the term of this Agreement shall begin on the Effective
Date of this Agreement, This Agreement shall be effective for an initial term of ten (10)
years from the effective date, and shall be automatically extended for additional ten (10)
year terms, unless terminated as provided herein, or otherwise agreed to in writing by
the Parties,
8.2 Termination. Notwithstanding any other term or provision in any other section of this
Agreement, either Party, upon written notice to the other Party with a minimum of One
Hundred and Eighty (180) calendar days, may terminate this Agreement for any reason,
including convenience, without incurring any penalty, expense, or liability to the other
Party. The effective date for any such termination is to be clearly stated in the notice.
8.3 Survival of Certain Terms and Conditions Following Termination or Expiration of
Agreement. The Parties agree that record-keeping and audit requirements, any payment
obligations to the other Party, and/or any other related obligations provided for in this
Agreement with regard to any acts, occurrences, events, transactions, or Claim(s) either
occurring or having their basis in any events or transactions that occurred during the
term of this Agreement, shall survive the termination or expiration of this Agreement,
8,4 Cooperation Following Termination of Agreement. In the event the Agreement is
terminated as provided herein, the Parties agree to cooperate in all respects and assist
in the wind down from the County's operation and maintenance of the System. The City
will be responsible for all Costs and Overhead incurred by the County through the date
of termination, including the Costs and Overhead incurred by the County during the
termination notice period referenced above to wind down and end the County's
involvement in the provision of the Services,
Article IX. Agreement Approval; Effective Date; and Amendments; Changes to Scope of
Services.
9,1 Agreement Approval; Amendments; and Effective Date. Except as otherwise provided
herein, this Agreement, and/or any subsequent amendments thereto, shall not become
effective prior to the approval by resolutions of both the City and the County, The
Effective Date of this Agreement, and any amendments hereto, shall be the date as
reflected in the opening paragraph of this Agreement.
9.2 Amendment to Scope of Services, During the term of this Agreement, the Scope of
Services attached hereto as Exhibit B, may be amended by the WRC and approved by
resolution of the City during the term of this Agreement without requiring a resolution
from the County Board of Commissioners.
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Article X. General Provisions,
10.1 Governing Law. This Agreement is made and entered into in the State of Michigan and
shall in all respects be interpreted, enforced and governed under the laws of the State of
Michigan. The language of all parts of this Agreement is intended to and, in all cases,
shall be construed as a whole according to its fair meaning, and not construed strictly for
or against any party. As used in this Agreement, the singular or plural number,
possessive or non-possessive, shall be deemed to include the other whenever the
context so suggests or requires,
10.2 Reservation of Rights; Governmental Function. 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. In addition,
the Parties maintain that the obligations set forth in this Agreement will be In the exercise
or discharge of a governmental function.
10.3 Severability. If any provision of this Agreement or the application to any person or
circumstance is, to any extent, judicially determined to be invalid or unenforceable, the
remainder of the Agreement, or the application of the provision of persons or
circumstances other than those as to which it is invalid or unenforceable, is not affected
and is enforceable, provided the invalid provision does not substantially alter the
Agreement or make execution impractical.
10.4 Binding Contract; Assignment; and Amendments. This Agreement will be binding upon
and for the benefit of the Parties hereto and their respective successors and assigns,
subject to any assignment requiring the prior written consent of the non-assigning Party
by an amendment to this Agreement signed by all Parties, and the assignee binding the
assignee to the terms and provisions of this Agreement.
10.5 Captions. The section headings or titles and/or all section numbers contained in this
Agreement are intended for the convenience of the reader and not intended to have any
substantive meaning and are not to be interpreted as part of this Agreement.
10.6 Notices. Except as otherwise expressly provided for herein, any and all correspondence,
invoices, and/or any other written notices required, permitted or provided for under this
Agreement, shall be delivered to the following;
COUNTY OF OAKLAND:
OAKLAND COUNTY WATER
RESOURCES COMMISSIONER
1 Public Works Drive
Waterford, Michigan 48328
CITY:
CITY OF FARM INGTON HILLS
31555 West Eleven Mile
Farmington Hills, Michigan 48336
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By:
10.7 Notice Delivery. Except with respect to notices of termination, all correspondence and
written notices shall be considered delivered to a Party as of the date that such notice is
deposited with sufficient postage with the U.S. Postal Service. Notices of termination
shall be personally delivered or sent by certified mail, return receipt requested, and shall
be considered delivered to a Party on the date of receipt as represented by the return
receipt or by a proof of personal service.
10.8 Entire Agreement. This Agreement sets forth the entire agreement between the County
and the City and fully supersedes any and all prior agreements or understandings
between them in any way related to the subject matter hereof. It is further understood
and agreed that the terms and conditions herein are contractual and are not a mere
recital and that there are no other agreements, understandings, contracts, or
representations between the County and the City in any way related to the subject
matter hereof, except as expressly stated herein. This Agreement shall not be changed
or supplemented orally and may be amended only as otherwise provided herein.
10.9 Recitals. The recitals shall be considered an integral part of the Agreement.
IN WITNESS WHEREOF, this Agreement if executed by the Parties on the date
hereafter set forth in the opening paragraph of this Agreement.
COUNTY OF OAKLAND
By:
Michael J. Gingell, Chairperson
Oakland County Board of Commissioners
CITY OF FARMINGTON HILLS
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Exhibit A
City of Farmington Hills
Sanitary Main
Legend
EFSIDS Interceptor (Not part
- of Contract)
aF rmington Hills Sat-Mary Main
Updated: 71512017 * Sanitary pump stations and other appurtenances of collection system not shown on map.
Farmington Hills sewer System
Operation and Maintenance
Exhibit B
Scope of Services
Sewer System Operation and Maintenance
The County agrees to perform the following operation and maintenance services of the City of
Farmington Hills Sewer System (System") (ail of the following being referred as the "VVRC Services' or
"Services") on behalf of the City:
1. Operation and maintenance of pump stations and appurtenances, including the payment
of power costs and lawn and landscape maintenance.
2. Operation and maintenance of the System, including all System gravity sewers, force
mains, manholes, meters, pump stations and all other facilities, equipment and
appurtenances that are part of the System. The sewer service lead from the public sewer
system to the building including the sewer lead connection at the public sewer system is
the responsibility of the property owner and will not be maintained by the MC as it is not
part of the System.
3. Compute and bill quarterly, charges for the Services rendered to each user connected to
the System in accordance with the Rates and Charges established by the City. The
charges will be payable thirty (30) days after the date of each quarterly billing or such
other time period as may be set by the City by ordinance or resolution and shall bear
such penalties and late charges, as the City by ordinance shall provide. Past due
amounts may also be certified to the tax roil for collection. The County shall provide the
City with the following periodic updates with respect to the operation and maintenance of
the System:
a. A quarterly report on activities completed within the past 90 days.
b. A report setting forth activities proposed for the following quarter.
Provide house lead connection inspections in accordance with City issued permits.
5. Respond to requests from customers and City for maintenance, inspections and repairs,
both emergency and routine.
6. Establish, maintain, manage, and administer a System Enterprise Fund. Revenue
collected by the County shall be deposited and maintained in the System Enterprise
Fund. On a quarterly basis, the County shall determine the costs and overhead incurred
during said quarter in performing the Services under this Contract and deduct such
amount from the System Enterprise Fund as payment for such Services,
7. Keep all necessary records and books of account pertaining to its dealings with the users
of the System within the City and the System Enterprise Fund, arid make same available
to the City upon request.
8. Comply with applicable laws and governmental accounting standards in the keeping,
management, administration, use and auditing of the System Enterprise Fund, Upon
request of the City, provide City a quarterly accounting statement, a quarterly operation
end maintenance activity report and annual report for the City's review in accordance with
the County's fiscal year. Upon request, allow the City or City agents to audit the System
Enterprise Fund accounts, books and statements, and provide City with supporting
documentation and copies of such materials if requested.
9. The County will provide, maintain and monitor a Supervisory Control and Data
Acquisition System (SCADA) to provide alarms on System facilities operated and
maintained by the County.
Farmington FINs Sewer System
Operation & Maintenance
10, The County will provide a 24-hour, 7-day per week dispatch center to receive alarms from
the SCADA system and any other reports of System emergencies, and will dispatch
emergency service crews to respond to such alarms and reports.
11. All Services provided by the County under this Contract will be performed in accordance
with all applicable county, state and federal permits and regulations, all applicable state
and federal laws and all applicable City ordinances.
12. The County shall establish, provide and implement sewer system operation and
maintenance related programs, studies, reports, testing, sampling, inspections and
surveys in accordance with City, state, and federal mandates.
13. The County will, replace or repair existing components of the System, excluding private
sewer leads, which are identified by the County or City to be in need of repair or
replacement. The County shall notify the City prior to undertaking repairs and the City
shall have the authority to reject or modify the scope of the proposed repairs, and to
provide input with respect to the means of repair for repairs estimated to cost in excess of
$30,000. Upon completion of such repairs and replacements, if the System has been
altered in any material way the County will provide to the City record drawings and
update the GIS infrastructure mapping and database. Unless otherwise agreed in writing
by the Parties, the County's obligation to repair or replace shall be limited to the fund
balance contained in the System Enterprise Fund.
14. Receive, process, and review all plans for sewer construction and prepare and forward all
required permit applications and plans to the Michigan Department of Environmental
Quality for review and approval, as required by applicable law.
15. The County shall attend meetings of the Great Lakes Water Authority (GLWA) Technical
Advisory Committee as necessary to remain informed as to current policies, practices,
and projects of GLWA. The County shall update the City with respect to significant
changes in policies or practices and/or significant projects identified by GLWA.
16. The County will maintain, and update as necessary, GIS infrastructure mapping and
database of the System. The County will also provide City hard and digital copies of the
mapping, and updates as requested, in a manner compatible with City's GIS system, and
will provide interconnectivity between the City and County GIS systems when in place.
The County will update the GIS mapping and database of the System upon being
provided record drawings or other information from the City identifying corrections and/or
modifications of the System and upon the County performing Services that result in
modifications of the System. The City is responsible for providing accurate record
drawing information.
16. MISS DIG, The County will conduct MISS DIG operations, in accordance with Public Act
53 of the Public Acts of 1974, as amended, (MCLA 460101 et seq) on behalf of the City
as they pertain to the operations and maintenance of the Sewer System,
17. PA 222 Notification. In the event that either the City or the County receives notice from a
user of the Sewer System of a possible claim and such notice is governed by the
provisions of Act 222 of 2002, then the party receiving the notice agrees to: (i) provide
the potential claimant with the information required by Act 222, (II) notify the other party to
this Agreement of the potential claim, and (iii) fully comply with the requirements of Act
222.
In the event System repairs or replacement is deemed attributable to outside parties, (i.e.
Contractor damage or customer negligence), consistent with applicable City ordinances,
2
Farmington Hills Sewer System
Operation 84 Maintenance
the WRC will bill the responsible party at the City's direction, If any, or the entire bill Is
deemed uncollectible, the uncollected amount will be charged directly to the System
Enterprise Fund.
3
Exhibit C
OVERHEAD EXPENSES
WRC Overhead charges are expenses not included In the direct hourly system labor and
equipment costs. Overhead is allocated to all the systems that WRC services. Overhead expense
includes, but is not limited to:
Billing Services Unit
Labor, equipment, payment processing, bill preparation, postage and other related costs
necessary to provide customer service for the communities WRC operates and maintains,
Safety Program
Labor, equipment and training needed to meet or exceed all required safety standards.
Training
Training and certification costs for field and engineering staff required to keep them up-to-date on
industry standards and innovations.
WRC Administration
Labor, equipment and training required to oversee the daily WRC operations. This includes
Permitting, Mapping, GIS, Asset Management and Miss Dig.
Building Maintenance
Labor, equipment, insurance, utilities, supplies and other related costs needed to operate and
maintain the various WRC buildings (includes Water Maintenance, Pump Maintenance, Billing
Services and Public Works buildings).
Miscellaneous Supplies
Supplies which are not inventoried and not purchased for a specific system are allocated to the
benefiting systems. This category includes uniforms, gloves, boots and repair parts.
Oakland County Support
Various Oakland County departments support the staff and work performed at WRC. These
departments include Human Resources, Purchasing, Info Tech and Fiscal Services. The portion
of their costs which is charged to VVRC is then allocated to the funds operated by this division.
Resolution #18317 September 5, 2018
The Chairperson referred the resolution to the Finance Committee. There were no objections.
FISCAL NOTE (MISC. #18317) September 27, 2018
BY: Commissioner Thomas Middleton, Chairperson, Finance Committee
IN RE: WATER RESOURCES COMMISSIONER CITY OF FARMINGTON HILLS SEWER
SYSTEM OPERATION AND MAINTENANCE AGREEMENT
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
Pursuant to Rule XII-C of this Board, the Finance Committee has reviewed the above referenced
resolution and finds:
1. Resolution approves an Agreement between Oakland County and the City of Farmington
Hills for the operation and maintenance of the city's sewer system.
2. The Water Resources Commissioner has sufficient staffing and possesses the necessary
knowledge to assist the city with the requested services provided under the Agreement.
3. The County's cost and overhead incurred for the services performed shall be compensated
from the revenues of the sewer systems.
4. The County will assist the city in the operations and maintenance of the sewer system on a
non-profit basis. The County and its General Fund will not be charged with or be liable for
the cost of operating, maintaining, repairing, replacing, or administering the sewer system.
5. The Agreement shall be effective for an initial term of ten (10) years and automatically
extended an additional ten years, unless the County and the City agree in writing to terminate
the Agreement. A minimum of One Hundred and Eighty (180) calendar day's written notice
may terminate the Agreement without any penalty.
6. No budget amendment is required. No General Fund appropriation is required.
Clmrnissioner Thoenas Middleton, District #4
Chairperson, Finance Committee
FINANCE COMMITTEE VOTE:
Motion carried unanimously on a roll call vote with Kowall absent.
Resolution #18317 September 27, 2018
Moved by Fleming supported by McGillivray the resolutions (with fiscal notes attached) on the Consent
Agenda be adopted (with accompanying reports being accepted).
AYES: Crawford, Fleming, Gershenson, Gingell, Hoffman, Jackson, Kochenderfer, KowaII, Long,
McGillivray, Middleton, Quarles, Spisz, Taub, Tietz, Weipert, Woodward, Zack, Berman,
Bowman. (20)
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).
,J\D
HERM APPAOVE 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 September 27,
2018, 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 27th day of September, 2018.
Lisa Brown, Oakland County