HomeMy WebLinkAboutResolutions - 1994.04.28 - 23986REPORT ( Mi sc #94126) April 28, 1994
BY: Personnel Committee - Marilynn Gosling, Chairperson
TO: The Oakland County Board Of Commissioners
IN RE: DRAIN COMMISSIONER - TERMINATION OF OPERATIONS AND MAINTENANCE
AGREEMENT WITH THE CITY OF WIXOM FOR THE WIXOM SEWAGE DISPOSAL SYSTEM
Chairperson, Ladies and Gentlemen:
The Personnel Committee, having reviewed the above referenced Planning and Building
Committee resolution on April 20, 1994, reports with the recommendation that the resolution
be changed as follows:
1) That the following be inserted after the third paragraph:
WHEREAS three Special Revenue positions will be deleted from the Operations and
Maintenance Division of the Drain Commissioner as a result of terminating this contract; and
2) That the following be inserted as a second BE IT FURTHER RESOLVED:
BE IT FURTHER RESOLVED that the following Special Revenue positions be deleted
effective July 1, 1994:
Sewage Treatment Plant Operator I (pos # 61213-00710), Sewage Treatment Plant
Operator I (pos #61213-02816), and Sewage Treatment Plant Supervisor I (61213-01217).
The Personnel Committee, having reviewed the above changes to the referenced resolution,
reports with the recommendation that the revised resolution be adopted.
Chairperson, on behalf of the Personnel Committee, I move the adoption of the foregoing
report.
PERSONNEL COMMITTEE
,April 28, 1994
MISCELLANEOUS RESOLUTION 194126
BY: PLANNING AND BUILDING COMMITTEE, CHARLES E. PALMER,
CHAIRPERSON
IN RE: DRAIN COMMISSIONER - TERMINATION OF OPERATION AND
MAINTENANCE AGREEMENT WITH THE CITY OF WIXOM FOR THE
WIXOM SEWAGE DISPOSAL SYSTEM
TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS
Chairperson, Ladies and Gentlemen:
WHEREAS the City of Wixom contracted with the County of Oakland to construct the
Wixom Sewage Disposal System and sell bonds on behalf of the City of Wixom ., and
WHEREAS on January 9, 1969, the County of Oaldand entered into an agreement with
the City of Wixom to operate and maintain the Wixom Sewage Disposal System; and
WHEREAS the City of Wixom has requested that the operating agreement be terminated
at a date yet to be determined; and
WHEREAS the City of Wixom is proposing to pay any debt incurred inclusive of bonds
sold in connection with the construction of the sewage disposal system.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of
Commissioners approve the termination contract for the Wixom Sewage Disposal System.
BE TT 'FURTHER RESOLVED that the Chairperson of the Board of Commissioners and
the Oakland County Drain Commissioner are authorized to execute a termination contract.
Chairperson, on behalf of the Planning and Building Committee, I move the adoption of
the foregoing resolution.
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WIXOM SEWAGE DISPOSAL SYSTEM AGREEMENT
day of THIS AGREEMENT ("Agreement") made and entered into this
, 199_, by and between the COUNTY OF OAKLAND, a Michigan
Constitutional Corporation ("County"), and the CITY OF WIXOM, a Municipal Corporation
located in the County of Oakland, State of Michigan ("City"):
WITNESSETH:
WHEREAS, the City and County entered, pursuant to 1957 PA 185, as amended,
into the Wixom Sewage Disposal System Contract, dated October 1, 1965 ("Base
Contract") which provides, among other things, (i) for the establishment of the Wixom
Sewage Disposal System ("Base System"), with an estimated cost of $4,600,000 and the
useful life thereof estimated as 50 years and upwards; (ii) for the issuance of bonds
("Base Contract Bonds") in the aggregate principal amount of $4,600,000, maturing serially
over a period of 35 years; (Hi) that the City shall pay the County the cost of the Base
System financed by such Base Contract Bonds, and that City has the option to prepay
the Base Contract Bonds; (iv) that after the issuance of the Base Contract Bonds, the
County shall cause the Base System to be constructed; (v) that upon completion of the
Base System, the County lease it to the City during the term of the Base Contract, with
the City to operate and maintain the Base System; and (vi) that the Base Contract shall
terminate fifty (50) years from the date of the Bases Contract, or on such earlier date
when City is not in default and the Base Contract Bonds have been fully paid and
discharged.
WHEREAS, on or about [date' , the County issued % Base Contract
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Bonds entitled in the aggregate amount of $
maturing serially over a period of years.
WHEREAS, after issuance of the Base Contract Bonds, County caused the Base
System to be constructed;
WHEREAS, on January 9, 1968, City and County entered into the CITY OF
WIXOM SEWAGE DISPOSAL SYSTEM OPERATING AGREEMENT, whereby (i) City as
lessee designated and employed the County as its agent to operate and maintain the
Base System for as long as the Base Contract remains in effect arid until the first day of
the calendar quarter following by more than 60 days the mailing of notice of termination
and (ii) City agreed to pay the County an amount sufficient to cover its costs and
overhead and reasonable reserves required for the operation and maintenance of the
Wixom Sewage Disposal System;
WHEREAS, pursuant thereto, the County has operated and maintained the Base
System and the City, through user fees, has paid the County therefor on an estimated
monthly basis, subject to a reconciliation of amounts paid to and costs incurred by the
County at the end of each calendar year;
WHEREAS, on April 1, 1971, the City and County entered, pursuant to 1957 PA
185, as amended, into the Contract Wixom Sewage Disposal System Extension No. I
("Extension Contract") which provides, among other things, (i) for the expansion and
improvement of the wastewater treatment plant and facilities ("Project I") with an estimated
cost of $845,000 and a period of usefulness of 50 years and upwards; (ii) for the issuance
by the County of Bonds ("Bonds-Extension I") in the aggregate principal amount of the
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total cost of Project I in excess of other available funds, payable in annual maturities the
last of which shall not be more than 40 years from the date of the Extension I Cont act:
(iii) that the City would pay the total cost of Project 1 financed through Bonds-Extension
I, and may pay such amounts in advance; (iv) that upon completion of Project 1, the
County leases the Project to the City to operate and maintain; and (v) that the Extension
Contract shall terminate when the Base Contract terminates;
WHEREAS, financing for construction of Project 1 was as follows: $ [amounti
in grants from [describe grant] ; (ii) $ [amount] from [identifyj pursuant to
jAoreementj ; and (iii) $ (amount] from % Bonds maturing'
Construction of Project I was completed on
WHEREAS followingconstruction, Project! has been operated and maintained by
the County Department of Public Works and the County has billed the users for the cost
thereof on an estimated monthly basis, subject to reconciliation of amounts paid to and
costs incurred by the County at the end of each calendar year;
WHEREAS, on December 2, 1983, the Michigan Water Resource Commission
issued to Oakland County Department of Public Works and the City National Pollutant
Discharge Elimination System ("NPDES") Permit No. M10024384;
WHEREAS, on June 3, 1987, the United States filed a complaint in Federal District
Court claiming that the County and City had violated the federal Clean Water Act and
NPDES Permit No. MI0024384 and on August 22, 1988, the parties entered into a
Consent Judgment, subsequently amended on August 29, 1988, requiring, among other
things, improvements in the Wixom Wastewater Treatment Plant, operation of the plant to
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provide the best effluent quality possible, and penalties for violation of the Consent
Judgment;
WHEREAS, on February 1, 1988, the City and County entered, pursuant to 1939
PA 342, as amended, into the Wixom Sewage Disposal System Extension No. 2 Contract
(" Extension 11 Contract") to expand and improve the existing system which provided,
among other things, (i) for construction of a wastewater treatment plant and facilities
("Project with an estimated cost of $20,000,000 and a period of usefulness of 30 years
and upwards; (ii) for the issuance by the County of Bonds ("Bonds—Extension 11") in the
aggregate principal amount of the total cost of Project II in excess of other available funds,
payable in annual maturities the last of which shall not be more than 40 years from the
date of the Extension 11 Contract; (iii) that the City would pay the total cost of Project II
financed through Bonds—Extension U , and may pay such amounts in advance; (iv) that
upon completion of Project II, the County leases the Base System, Projects Extensions
I and 11, (collectively hereinafter "System") to the City to operate and maintain; and (v) that
the Extension 11 Contract shall terminate forty (40) years from the date thereof or such
earlier date as shall be mutually agreed upon;
WHEREAS, financing for construction of Project 11 was as follows: (i)
approximately $9,534,613 in grants from USE PA; (ii) approximately $4,500,000 from Ford
Motor Company pursuant to City of Wixom — Ford Motor Company Waste Water
Agreement, dated December 15, 1988; and (iii) approximately $5,700,000 from
Bonds maturing . Construction of Project II was completed on
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WHEREAS, following construction, Project II has been operated and maintained
by the County Department of Public Works and the County has billed the users for the
cost thereof on an estimated monthly basis, subject to reconciliation of amounts paid to
and costs incurred by the County at the end of each calendar year;
WHEREAS, the County has provided billing and accounting functions in connection
with the operation of the System and as a result thereof some of the revenues received
have been placed in the following accounts: (i) Wixom SDS Major Repairs; (ii) Wixom
WWTP Replacement; (ill) Wixom Water Major Repairs and Replacement Fund; and (iv)
Retained Earnings.
WHEREAS, as part of its operation of the System, the County has developed and
implemented an approved industrial Pretreatment Program;
WHEREAS, on or about August 18, 1993, the Consent Judgment was terminated
upon a showing of compliance therewith;
WHEREAS, the City has investigated various options to reduce its costs in
connection with the System;
WHEREAS, the County and City have discussed and reached an agreement to
transfer ownership of the System to the City upon the City obtaining financing to discharge
the bonds issued by the County to construct the System and desire to reduce that
agreement to writing;
THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE COVENANTS
OF EACH OTHER, THE CITY AND COUNTY AGREE AS FOLLOWS:
1.0 PURCHASE AND SALE
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1.1 Property. County agrees to sell, transfer and convey to City all of County's
rights, title and interest that it has, or may claim to have, in personal and real property
("Property") located at 2050 Charms, Wixom, Michigan, in the County of Oakland, State
of Michigan, more particularly described in Schedule A, together with any other Property
owned by the County which is part of the System, and City agrees to purchase same_
Said Property includes, but is not limited to, the following:
(a) AU fixtures, including machinery, equipment;
(b) Any and all site plans, architectural, engineering, environmental,
construction, and management plans, agreements, warranties, construction and title
documents, policies and procedures relating to the Property and all of County's
rights under all construction contracts relating to the Property, including, without
limitation, all completion and performance bonds and all warranties received by
County from contractors, subcontractors and suppliers;
(c) Any and all easements, rights—of—way, privileges, other
appurtenances, and rights to the same belonging to and inuring to the benefit of the
Real Estate or necessary for, or currently used in connection with the operation
and maintenance of the System;
(d) Such other rights, interests and properties as may be specified in this
Agreement to be sold, transferred, assigned or conveyed by County to City;
(e) All personal property obtained as part of the construction of the
System to the extent it exists and all replacements, modifications, additions, and/or
improvements thereof, if paid for out of System Funds, as well as all equipment,
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inventory and supplies, books and records, intangibles (contract rights, causes in
action, etc.), the cost of which was paid or will be paid (i) by City to County as part
of compensation of operating and maintaining the System or (ii) otherwise paid by
City; and
(f) The right to use the Industrial Pretreatment Program developed for
the System and all property related thereto located upon System grounds.
1.2 Purchase Price. The purchase price for the Property sold shall be as
follows:
(a) The amount required, as of the date of closing, to pay off and
discharge all outstanding Base Contract Bonds, Extension I and II Bonds
(collectively hereinafter "Bonds"), including all costs incurred by the County related
fel same;
(b) The amount required, as of the date of closing, to pay off and
discharge all expenses, administrative, operating or otherwise, incurred by the
County incident to the sale, transfer and conveyance by County to City of all the
County's rights, title and interest in all property subject to this Agreement; and
(c) The City's equity, rights, title and interest in the 2% Fund for County-
Wide Sewage Disposal System Improvements.
1.3 Payment. The purchase price shall be paid as follows:
(a) As to all Bonds, the purchase price shall be paid at closing in cash,
certified bank transfer or wire deposit to the payment agent for the Trustee for the
holders of the Bonds to be used by him for discharge of the obligation represented
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by the Bonds and payment of expenses incurred in connection therewith;
(b) As to all expenses incurred by the County incident to the sale,
transfer and conveyance of the properly subject to this Agreement as described
in Section 1 2(b) of this Agreement, the purchase price shall be paid at closing, in
cash, certified bank transfer or wire deposit to the Treasurer, County of Oakland;
and
(c) As to the City's equity, rights, title and interest in the 2% Fund for
County—Wide Sewage Disposal System Improvements, the purchase price shall be
paid by executing, at the time of closing, a contract and release transferring and
conveying to County from City all of the City's equity, rights, title and interest in said
2% Fund for County—Wide Sewage Disposal System Improvements.
1.4 Closing. The closing hereunder ("Closing") shall be held at the offices of
on ("Closing Date"), unless
otherwise agreed to in writing by the City and County, provided that all conditions
precedent to Closing set forth in this Agreement are satisfied or waived as provided
herein. In the event all the conditions precedent are not satisfied or waived on or before
, the parties shall reschedule the Closing Date for a time after such
conditions precedent are satisfied or waived.
2.0 REPRESENTATIONS AND WARRANTIES OF COUNTY
2.1 Representations and Warranties. County represents and warrants that
each of the following representations and warranties is true as of the date hereof, shall
be true and deemed to be remade at Closing and shall survive Closing as hereinafter
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1411:/1-
c4 6 to,10/0-A44
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"1„.. provided:
(a) Title. County has good, valid, enforceable title to the Property,
including, marketable, fee simple title to any real estate included in the Property,
free and clear of all mortgages, deeds of trust, pledges, liens, tenancies, charges,
encumbrances, exceptions, easements, covenants, restrictions, or other exceptions
of any kind or nature, except for those of record and/or those matters described in
Schedule B;
(b) Authorizations. County has taken, or will take prior to Closing, all
action required to authorize the execution and delivery of this Agreement by it and
the consummation of the transactions contemplated hereby;
(c) Bonds. As of the date of this Agreement and as contemplated as of
the Date of Closing, the outstanding obligations to the holders of Bonds used to
finance the System are set forth in Schedule C;
(d) Permits. Schedule D, attached hereto, lists all permits, licenses,
authorizations and any other similar documents constituting entitlement or
otherwise material, to the ownership and/or operation of the System. Except as set
forth in Schedule D, all such permits, licenses, authorizations, and other similar
documents are valid, in full force and effect;
(e) Liabilities. County has delivered to City an accurate list and
description (Schedule E), as of the date hereof, to the best of County's knowledge
of all contingent liabilities (those where the liability is not fixed as to amount or is
contested including, without limitation, all claims, suits and proceedings which are
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pending, threatened or anticipated, against County) of County in connection with
the Property or County's operation and maintenance of the System. For each such
liability, County has provided the following in Schedule E:
(i) A summary description of such liability together with copies of
all material documents, reports and other records relating thereto unless
such disclosure would constitute a loss of the attorney/client privilege with
respect to such liability;
(ii) All amounts claimed with respect to such liability (including any
other action or relief sought) and the identity of the claimant;
(iii) Without limitation of the foregoing, (a) the name of each court,
agency, bureau, board or body before which any claims, suit or proceeding
is pending, including, without limitation, those arising under federal, state or
local laws regulating or governing the discharge or release of materials into
the environment or otherwise relating to the protection of public health or the
environment and those arising out of personal injury or property damage
(including all worker's compensation and occupational disease and injury
claims, suits and proceedings) and including citations under the federal
Occupational Safety and Health Act; (b) the date such claim, suit or
proceeding was instituted; (c) the parties to such claim, suit or proceeding;
(d) a description of the factual basis alleged to underlie the claim, suit or
proceeding, including the date or dates of all material occurrences; (e) the
amount claimed and other relief sought; and (f) all material pleadings, briefs
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and other documents relating thereto;
(f) Filings and Notices. Except as disclosed in Schedule E, the County
has delivered to City a list (Schedule F) as of the date of this Agreement, of all
material records, notifications, reports, pending site assignments, permit and
license applications, engineering studies and environmental impact reports or
assessments filed or submitted to appropriate governmental agencies, and, to the
best of County's knowledge, all material notifications from such governmental
agencies relating to any such records, notifications, reports, permits, licenses or
applications, all pursuant to federal, state or local laws, rules or regulations relating
to the treatment of material, the discharge or release of materials into the
environment and/or otherwise relating to the protection of public health or the
environment;
(g) Condition of Assets. The County represents that all Property subject
to this Agreement is sold, transferred and conveyed in an "as is'. condition and
that no other representations or warranties as to condition, order, repair, use,
adequacy or fitness for a particular purpose are made, given, implied, transferred
or conveyed;
(h) Contracts and AoreementsAdverse Restrictions.
(i) The County has delivered to City a list (Schedule H), as of the
date hereof, of all material contracts and agreements which relate to the
ownership, operation and/or maintenance of the System, or by which any
part of the System may be bound. To the best of County's knowledge, all
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such contracts and agreements, unless otherwise indicated, are in full force
and effect and binding upon the parties thereto and none of the parties
thereto is in breach thereof or has threatened to breach any of the material
provisions thereof;
(ii) Except as set forth on Schedule H, and as required by law,
County is not a party to (i) any contract, agreement or other commitment or
instrument or subject to any charter or other corporate restriction or subject
to any restriction or condition contained in any permit, license, judgment,
order, writ, injunction, decree, order or award which singly or in the
aggregate, materially and adversely affects, the operations, properties,
assets or condition (financial or otherwise) of the System, or (ii) any
commercial contract, agreement or other commitment or instrument or
subject to any charter or other restriction which restricts or prohibits the
County from consummating the transactions contemplated by this
Agreement;
(1) Compliance with Laws and Reoulations. Except as fully disclosed on
Schedule I attached hereto, as of the date of this Agreement, County has, to the
best of its knowledge, complied with and is presently in compliance with, all
federal, state and local laws, ordinances, rules, regulations, governmental permits,
orders, judgments, awards, decrees, consent judgments, consent orders and
requirements (collectively, "Laws") including, but not limited to, Laws dealing with
the public health, safety or protection of the environment (collectively,
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"Environmental Laws") applicable to or affecting the System, except for such minor
non-compliances as shall not materially adversely affect.the System. To the best
of County's knowledge, there has been no assertion by any person that County has
violated any such Laws;
(j) Approval and Authorization. The execution and delivery of this
Agreement by County and the performance of the transactions contemplated herein
have been duly and validly authorized by all necessary action and this Agreement
is a legal, valid and binding obligation of County. County has full power, right and
authority to enter into and perform its obligations under this Agreement; and
(k) Copies. County shall indicate on each Schedule whether copies of
any documents or records listed therein are at the Wastewater Treatment Plant.
If copies are not at the Wastewater Treatment Plant, County shall provide City with
same.
3.0 REPRESENTATIONS AND WARRANTIES OF CITY
3.1 Representations and Warranties. City represents and warrants that each
of the following representations and warranties are true as of the date hereof, shall be true
and deemed to be remade at Closing and shall survive Closing as hereinafter provided:
(a) Authorizations. City has taken, or will take prior to Closing, all action
required to authorize the execution and delivery of this Agreement by it and the
consummation of the transactions contemplated hereby;
(b) Liabilities. City has delivered to County an accurate list and
description (Schedule J, as of the date hereof, to the best of City's knowledge of
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all contingent liabilities (those where the liability is not fixed as to amount or is
contested including, without limitation, all claims, suits and proceedings which are
pending, threatened or anticipated, against City) of City in connection with the
Property or City's obligations in connection with the use, operation and/or
maintenance of the System. For each such liability, City has provided the following
in Schedule _:
(i) A summary description of such liability together with copies of
all material documents, reports and other records relating thereto unless
such disclosure would constitute a loss of the attorney/client privilege with
respect to such liability;
(ii) All amounts claimed with respect to such liability (including any
other action or relief sought) and the identity of the claimant;
(iii) Without limitation of the foregoing, (a) the name of each court,
agency, bureau, board or body before which any claims, suit or proceeding
is pending, including, without limitation, those arising under federal, state or
local laws regulating or governing the discharge or release of materials into
the environment or otherwise relating to the protection of public health or the
environment and those arising out of personal injury or property damage
(including all worker's compensation and occupational disease and injury
claims, suits and proceedings) and including citations under the federal
Occupational Safety and Health Act; (b) the date such claim, suit or
proceeding was instituted; (c) the parties to such claim, suit or proceeding;
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(d) a description of the factual basis alleged to underlie the claim, suit or
proceeding, including the date or dates of all material occurrences; (e) the
amount claimed and other relief sought; and (f) all material pleadings, briefs
and other documents relating thereto;
(c) Contracts and AgreementsAdverse Restrictions.
(I) The City has delivered to County a list (Schedule j, as 0 the
date hereof, of all material contracts and agreements which relate to the
use, operation and/or maintenance of the System, or by which any part of
the System may be bound. To the best of City's knowledge, all such
contracts and agreements, unless otherwise indicated, are in full force and
effect and binding upon the parties thereto and none of the parties thereto
is in breach thereof or has threatened to breach any of the material
provisions thereof;
(ii) Except as set forth on Schedule , and as required by law,
City is not a party to (i) any contract, agreement or other commitment or
instrument or subject to any charter or other corporate restriction or subject
to any restriction or condition contained in any permit, license, judgment,
order, writ, injunction, decree, order or award which singly or in the
aggregate, materially and adversely affects, the operations, properties,
assets or condition (financial or otherwise) of the System, or (ii) any
commercial contract, agreement or other commitment or instrument or
subject to any charter or other restriction which restricts or prohibits the City
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from consummating the transactions contemplated by this Agreement;
(d) Compliance with Laws and Regulations. Except as fully disclosed on
Schedule _ attached hereto, as of the date of this Agreement, City has, to the best
of its knowledge, complied with, and is presently in compliance with, all federal,
state and local laws, ordinances, rules, regulations, governmental permits, orders,
judgments, awards, decrees, consent judgments, consent orders and requirements
(collectively, "Laws") including, but not limited to, Laws dealing with the public
health, safety or protection of the environment (collectively, "Environmental Laws")
applicable to or affecting the System, except for such minor non-compliances as,
shall not materially adversely affect the System. To the best of City's knowledge,
there has been no assertion by any person that City has violated any such Laws;
and
(e) Approval and Authorization. The execution and delivery of this
Agreement by City and the performance of the transactions contemplated herein
have been duly and validly authorized by all necessary action and this Agreement
is a legal, valid and binding obligation of City. City has full power, right and
authority to enter into and perform its obligations under this Agreement. Except as
provided by law or is expressly recognized and/or provided herein, no approvals
or consents of any persons is necessary in connection with the execution, delivery
and performance by the City of its obligations hereunder.
4.0 CONDITIONS PRECEDENT TO OBLIGATIONS OF CITY
The obligations of City hereunder are, at its option, subject to the satisfaction, on
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or prior to the Closing Date, of the following conditions precedent. Upon the Closing of
this Agreement, all conditions not satisfied are deemed to be waived. In the event that
any of the conditions set forth in this Section 4.0 have not been fulfilled as of the
Termination Date, City may, at its option, unless such date is extended by City, at its sole
discretion, elect by written notice to the County to:
(a) Terminate the Agreement; and
(b) Waive any failure on the County's part to satisfy the following
conditions precedent.
4.1 Accuracy of Representations; Performance of Covenants. The
representations and warranties of the County contained in Section 2.0 shall be accurate
in all material respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date; each and all of
the agreements of the County to be performed on or before the Closing Date pursuant to
the terms hereof shall have been performed.
4.2 Opinion of Counsel. City shall have received an opinion from counsel to
the County, dated as of the Closing Date, in substantially the form of the opinion attached
hereto as Schedule J.
4.3 Governmental ConsentsLNo Litigation. All necessary consents and
approvals shall have been obtained relating to the consummation of the transactions
contemplated in this Agreement, including, without limitation, all state, local and municipal
permits, and no action or proceeding before a court or any other governmental agency or
body shall have been instituted to restrain or prohibit City's acquisition of the System and
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the financing and operation thereof.
4.4 No Material Adverse Change. No material adverse change in the results
of operations or condition of the System nor, as of the Closing Date, of the prospects for
future operations, shall have occurred, and the System shall not have suffered any
material loss or damage, whether or not covered by insurance, since the date hereof,
which change. loss or damage materially affects or impairs the ability of City to operate
and/or maintain the System.
4.5 NPDES Permits. City shall have removed County from the NPDES Permit
No. MI0024384, or shall have obtained approval, in writing, of the DNR for (i) the removal
of County therefrom upon the transfer of title to the System; and (ii) substitution of another
operator as selected by City.
4.6 Financing. City shall have sufficient funds availnble, and shall have
deposited same with the payment agent for the Trustee of the holders of Bonds to pay off
and discharge all Bonds used to finance construction of the System and to cover the
costs related to such discharge.
4.7 No Default. County shall not be in default in the performance of its
obligations in connection with the County's operation and maintenance of the System.
5.0 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COUNTY
The obligations of County hereunder are, at its option, subject to the satisfaction,
on or prior to the Closing Date, of the following conditions precedent Upon the Closing
of this Agreement, all conditions not satisfied are deemed to be waived. In the event that
any of the conditions set forth in this Section 5.0 have not been fulfilled as of the
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Termination Date, County may, at its option, unless such date is extended by County, at
its sole discretion, elect by written notice to the City to:
(a) Terminate the Agreement; and
(b) Waive any failure on the City's part to satisfy the following conditions
precedent.
5.1 Governmental Consents; No Litigation. All necessary consents and
approvals shall have been obtained relating to the consummation of the transactions
contemplated in this Agreement, including, without limitation, all state, local and municipal
permits, and no action or proceeding before a court or any other governmental agency or
body shall have been instituted to restrain or prohibit City's acquisition of the System and
the financing and operation thereof,
5.2 Accuracy of Representations; Performance of Covenants. The
representations and warranties of the City contained in Section 3.0 shall be accurate in
all material respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date; each and all of
the agreements of the City to be performed on or before the Closing Date pursuant to the
terms hereof shall have been performed.
5.3 NPDES Permit. County shall have been removed from the NPDES Permit
No. MI0024384, or City shall have obtained approval, in writing of the DNR for (i) the
removal of County therefrom upon the transfer of title to the System; and (ii) substitution
of another operator as selected by City.
5.4 Financing. City shall have sufficient funds available, and shall have
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deposited same with the payment agent for the Trustee of the holders of the Bonds to pay
off and discharge all Bonds used to finance construction of the System and to cover the
costs related to such discharge; shall have deposited funds sufficient to pay all costs
identified in Section 1.2(b) of this Agreement with the Treasurer of the County of Oakland:
and shall have executed the agreement identified in Section 1.2(c).
6.0 COVENANTS BY COUNTY
6.1 Efforts Towards Closing. Prior to Closing, County shall use its best efforts
and give its fullest cooperation to City in order to obtain all necessary consents and
approvals of, and filing with, any governmental authority or agencies, and to arrange for
the defeasance of the Bonds upon payment at Closing, and to accomplish any other
action necessary for Closing.
6.2 Continued Operation and Maintenance. Between the ciPte of this
Agreement and Closing, County will operate and maintain the System in accordance with
laws and the City of Wixom Sewage Disposal System Operating Agreement, County shall
not, without the prior written consent of City (unless an emergency requires immediate
action before such consent can be sought) (i) undertake any action outside the ordinary
course of its performance under the Operating Agreement; or (ii) make any capital
improvement in excess of $50,000.
6.3 Transition. County shall, as reasonably requested by City or its designated
operator, assist City in developing and implementing a plan for the smooth transition from
operation by County to City and/or City's Contractor. A preliminary plan for transition is
set forth in Schedule K. Within 30 days after the end of each month, County shall provide
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• •
City with a written statement of costs incurred in connection with such transition, such
costs shall be paid by City to County.
6.4 Status of Accounts. Upon Closing, all funds or amounts held by County
in trust for City in connection with the System and accounted for in the following accounts
shall be the property of, and transfer to City: (i) Wixom S.D.S. — Major Repairs; (ii) Wixom
WWTP Replacement; (Hi) Retained Earnings; and (iv) Wixom Water Major Repair and
Replacement Fund. The amounts in such accounts as of the date of this Agreement are
set forth in Schedule L.
6.5 Reconciliation of Operation and Maintenance Expense. Within 90 days
after closing, County shall provide City a written statement identifying all costs incurred
through Closing (on an actual or pro rata basis) in connection with operation and
maintenance of the System, which costs have not been previously paid or reimbursed by
City.
7.0 COVENANTS BY CITY
7.1 Payments. Within 30 days of receipt of a statement received from County
pursuant to Section 6.3 and 6.5 above, City shall pay to County amounts due to it.
7.2 Insurance. City shall obtain and maintain insurance for casualty, property
damage and liability in the form and amounts it deems appropriate governing the
Wastewater Treatment Plant.
7.3 Efforts Towards Closing. Prior to the Closing, the City shall use its best
.efforts and give its fullest cooperation to County in order to obtain all necessary consents
and approvals of and filings with, any governmental authority or agency relating to the
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consummation of the transactions contemplated in this Agreement All such consents and
approvals shall have been obtained, including, without limitation, all state, local and
municipal permits.
8.0 INDEMNIFICATION
8.1 By County. From and after the date of this Agreement, County will
indemnify and hold harmless frorr third party claims City and its respective
councilpersons, officers, agents, and employees ("City's Indemnitees") against any and
all losses, damages, assessments, adjustments, liabilities, claims, deficiencies, fines,
penalties, costs, expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation ("Losses") arising out of or in connection
with County's operation and maintenance of the System, any misrepresentation, breach
of any warranty, negligence, non—fulfillment of any agreement or covenant in this
Agreement by County or any misrepresentation in or omission from any Exhibit, Schedule,
list, certificate, or other instrument furnished or to be furnished to City pursuant to the
terms of this Agreement.
8.2 By City. From and after the date of this Agreement, City will indemnify and
hold harmless from third party claims County and its respective commissioners, officers,
agents, and employees ("County's IndemniteesH) against any and all losses, damages,
assessments, adjustments, liabilities, claims deficiencies, fines, penalties, costs, expenses
(including specifically, but without limitation, reasonable attorneys' fees and expenses of
investigation ("Losses"), with respect to the City's ownership, operation and maintenance
of the System, any misrepresentation, breach of any warranty, negligence, unlawful action,
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or breach of warranty, non—fulfillment of any agreement or covenant in this Agreement by
City or any misrepresentation in or omission from any Exhibit, Schedule, list, certificate,
or other instrument furnished or to be furnished to County pursuant to the terms of this
Agreement.
8.3 Notice of Indemnity Claim. In the event that subsequent to the Closing
Date any claim is asserted against any Indernnitee hereto as to which an lndemnitee may
be entitled to indemnification hereunder, an Indemnitee shall (a) within ten (10) days after
receipt of written notice of commencement of any third party litigation against such
Indemnified Party, (b) within thirty (30) days after receipt by such Indemnitee of written
notice of any third party claim, invoice, notice of claim or assessment, etc., against such
Indemnitee other than litigation, or (c) within thirty (30) days after Indemnitee becomes
aware of the existence of any other event, in respect of which indemnification may be
sought from the party obligated to indemnify it (the Indemnifying Party"), give written
notice thereof to the Indemnifying Party, The failure so to timely notify the Indemnifying
Party shall relieve the Indemnifying Party from the obligation to indemnify under this
Section a, unless the Indemnitee establishes by competent evidence that the Indemnifying
Party was not prejudiced thereby. The Indemnifying Party shall have the right, upon
written notice to the lndemnitee with ten (10) days after receipt from the Indemnified Party
of notice of such claim, to conduct at its expense the defense against such claim in its
own name or, if necessary, in the name of the Indemnified Party. In the event that the
Indemnifying Party shall fail to give such notice, it shall be deemed to have elected not to
conduct the defense of the subject claim, and in such event the Indemnified Party shall
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have the right to conduct such defense and to compromise and settle the claim without
prior consent of the Indemnifying Party, provided, however, that the Indemnifying Party
may later elect to conduct the defense if it can show that the Indemnified Party was not
prejudiced by its failure to make a timely election. In the event that the Indemnifying Party
does elect to conduct the defense of the subject claim, the Indemnified Party will
cooperate with and make available to the Indemnifying Party such assistance and
materials as may be reasonably requested by it, all at the expense of the Indemnifying
Party, and the Indemnified Party shall have the right at its expense to participate in the
defense, provided that the Indemnified Party shall have the right to compromise and settle
the claim only with the prior consent of the Indemnifying Party and further provided that
the Indemnifying Party shall not compromise or settle a claim without the prior consent of
the Indemnified Party to the extent that any monetary payment to be made on account
thereof or any other Liability or obligation to the undertaken in connection therewith is not
solely the responsibility of such Indemnifying Party.
9.0 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS
The representations, warranties, covenants and agreements of the parties
contained in this Agreement and in any Certificate, exhibit or Schedule delivered pursuant
hereto, or in any other writing delivered pursuant to the provisions of this Agreement (the
"Representations and Warranties") and the liability of the party making such
representation, warranty, covenant or agreement for breaches thereof shall survive the
consummation of the transactions contemplated hereby for the duration of applicable
statutes of limitation.
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4
10.0 TERMINATION OF AGREEMENT
In addition to the respective rights set forth in Sections 4 and 5 hereof, this
Agreement may be terminated in accordance with the following provisions:
10.1 Mutual Consent. The parties hereto may terminate this Agreement at or
at any time prior to the Closing by their mutual consent.
10.2 Failure to Fulfill Respective Conditions. Either party may terminate this
Agreement if any of the conditions set forth herein shall not have been satisfied or waived
prior to _, 1994 ("Termination Date").
10.3 Failure to Perform. Either party may terminate this Agreement at any time
prior to Termination Date if the other party shall have failed to perform or observe any of
its material obligations under this Agreement.
10.4 Notice and Effect of Termination. Any termination of this Agreement in
accordance with the foregoing provisions shall become effective upon the giving of written
notice of such termination by the terminating party to the other parties hereto. Upon such
termination, the transactions contemplated herein shall forthwith be abandoned and all
continuing obligations and liabilities of the parties under or in connection with this
Agreement, except those set forth in Sections 6 and 7 hereof, shall be terminated and of
no further force or effect; provided, however, that nothing herein shall relieve any party
from liability for any misrepresentation, breach of warranty or breach of covenant
contained in this Agreement prior to such.termination.
11.0 GENERAL
111 Additional Conveyances. Upon the execution of this Agreement, City and
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County mutually agree to promptly undertake, and to pursue, cooperatively and diligently,
the obtaining of all approvals, consents and authorizations required to be given by third
parties, governmental or private, that are necessary or appropriate to effect the
transactions contemplated in this Agreement in an expeditious and prudent manner. In
addition, each shall deliver or cause to be delivered on the Closing Date, and at such
other times and places as shall be reasonably agreed upon, such additional instruments
as may be reasonably be requested for the purpose of carrying out this Agreement. The
City and County will cooperate and use their best efforts to have the present employees
cooperate with the other party on and after the Closing Date in furnishing information,
evidence, testimony and other assistance in connection with any actions, proceedings or
disputes of any nature with respect to matters pertaining to all periods prior to the Closing
Date.
11.2 Assignment. This Agreement may not be assigned by either party (except
by operation of law) and this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their successors or assigns.
11.3 Counterparts, This Agreement maybe executed simultaneously in two or
more counterparts, each of which shall be deemed an original and all of which together
shall constitute but one and the same instrument.
11.4 Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given ii in writing and either delivered
personally, sent by facsimile transmission or by courier service, or mailed by postage
prepaid registered or certified U.S. mail, return receipt requested, to the addresses
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designated below or such other addresses as may be designated in writing by notice given
hereunder, and shall be effective upon personal delivery or facsimile transmission thereof
or three days following deposit in the U.S. mail or one business day following deposit with
an courier service:
If to County:
With a copy to:
If to City:
Mr_ George W. Kuhn
Oakland County Drain Commissioner
One Public Works Drive
Waterford, MI 48328-1907
Mr. Robert J. Daddow, Director
Oakland County Management and
Budget Department
1200 North Telegraph Road
Pontiac, MI 48341-0409
City of Wixom
Attention: City Manager
49045 Pontiac Trail
Wixom, MI 48096-0155
11.5 Applicable Law. This Agreement shall be construed in accordance with the
laws of Michigan without regard to its conflicts of laws provisions.
11.6 Payment of Fees and Expenses. All fees, expenses, costs and
disbursements incurred in connection with the subject matter of this Agreement and any
amendments thereto are the obligations of the City and shall be paid as part of the
purchase price as set forth in Section 1.2(b).
11.7 Incorporation by Reference. Any and all schedules, annexes, exhibits,
statements, reports, certificates or other documents or instruments referred to herein or
attached hereto are incorporated herein by reference thereto as though fully set forth at
the point referred to in this Agreement.
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. ,
11.8 Captions. The captions in this Agreement are for convenience only and
shall not be considered a part hereof or affect the construction or interpretation of any
provisions of this Agreement.
11.9 Number and Gender of Words. Whenever the singular number is used
herein, the same shall include the plural where appropriate, and shall apply to all of such
number, and to each of them, jointly and severally, and words of any gender shall include
each other gender where appropriate.
11.10 Entire Agreement. This Agreement (including the Schedules, Annexes and
Exhibits hereto) and the other documents delivered pursuant hereto constitute the entire
Agreement and understanding between the parties and supersedes any prior agreement
and understanding relating to the subject matter of this Agreement. This Agreement may
be modified or amended only by a written instrument executed by the parties acting
through their respective officers, thereunto duly authorized by its Board of Directors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
persons thereunto duly authorized as of the date first above written.
COUNTY OF OAKLAND, a Michigan CITY OF WIXOM, a Municipal
Constitutional Corporation Corporation
By: By:
Its: Its:
WITNESS: WITNESS:
28
FISCAL NOTE (Misc. Resolution #94 126) • . BY: FINANCE COMMITTEE, JOHN P. MCCULLOCH, CHAIRPERSON
IN RE: DRAIN COMMISSIONER - TERMINATION OF OPERATIONS AND MAINTENANCE AGREEMENT
WITH THE CITY OF WIXOM FOR THE WIXOM SEWAGE DISPOSAL SYSTEM
To the Oakland County Board Of Commissioners
Chairperson, Ladies and Gentlemen:
Pursuant to rule XI-G of this Board, the Finance Committee has reviewed
Miscellaneous Resolution #94126 and finds:
1. Under the current operating and maintenance contract the County
bills the City of Wixom customers to offset costs associated with
the Wixom Water Supply System.
2. The current contract allows for termination with 60 days notice.
The resolution provides notice of such termination.
3. Upon termination of the operating agreement, the City of Wixom will
be responsible for costs incurred and for billing customers.
4. The County of Oakland will have 90 days after termination to close
books.
5. The two outstanding bond issues for the construction costs sold by
the County on behalf of Wixom will be defeased on or about the
termination of the operating agreement.
6. As of December 31, 1993, a fund balance of $563,714.38 is
designated for the City of Wixom for major repairs to the sewage
disposal system and replacement of the wastewater treatment plant.
7. As of December 31, 1993, the Water and Sewage Trust Fund has on
record $404,036.40 of earned surplus from the Sewage Disposal
System.
8. The 1994/1995 Budget be amended as follows:
Revenue: 1994 1995
3-83200-612-66-xx-2618 City of Wixom ($1,157,086)($1,191,800)
Expenses:
4-83200-612-66-xx-1001 Salaries ( 77,253) ( 77,253)
4-83200-612-66-xx-2070 Fringe Benefits ( 39,244 ) ( 39,244)
4-83200-612-xx-xx-xxxx Operating Expenses (1,040,589) (1,075,303)
Total Expenditures: ($1,157,086) ($1,191,800)
$ -0- $ -0-
FINANCE COMIII ,TEE
j4/2
. -
Resolution #94126 April 28, 1994
Moved by Palmer supported by Dingeldey the resolution be adopted.
Moved by McCulloch supported by Dingeldey the resolution be amended in
the Fiscal Note, item 7, by showing the earned surplus as $404,036.40, not
$251,013.97.
A sufficient majority having voted therefor, the amendment carried.
Vote on resolution, as amended:
AYES: Moffitt, Oaks, Obrecht, Palmer, Pernick, Powers, Schmid, Taub,
Wolf, Aaron, Crake, Dingeldey, Douglas, Garfield, Gosling, Huntoon, Jensen,
Johnson, Kaczmar, Kingzett, Law, McCulloch, McPherson, Miltner. (24)
NAYS: None. (0)
A sufficient majority having voted therefor, the resolution, as amended,
was adopted.
?FOREGOING RESOLUTION
1:///74/
County Executive
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, Lynn D. Allen, 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 April 28, 1994 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 28th day g t.,,,pril-.-14.19W-,(i,
1.77074";. Allen, County Clerk