HomeMy WebLinkAboutResolutions - 2000.02.24 - 25996PUBMC SERVICES COMMITTEE
MISCELLANEOUS RESOLUTION #00030 February 24,2000
BY: PUBLIC SERVICES COMMITTEE, FRANK MILLARD, CHAIRPERSON
IN RE: 2000 Gypsy Moth Suppression Program Community Spray Contracts
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentleman:
WHEREAS the gypsy moth infestation presents the potential for immense damage to the many
forested and tree filled landscapes within Oakland County; and
WHEREAS many local governmental units within Oakland County have sought the County's
assistance in coordinating a large scale treatment program to help suppress the gypsy moth infestation in
which the local units chose to participate; and
WHEREAS the County has chosen to assist qualifying local units by participating in a state-wide
treatment program developed by the Michigan Department of Agriculture (MDA); and
WHEREAS the MDA program offers the expertise and experience of the MDA in suppressing the
gypsy moth infestation plus the possibility of Federal and/or State cost sharing for program expenses through
a State grant entitled the, "2000 Michigan Department of Agriculture Cooperative Gypsy Moth Suppression
Program"; and
WHEREAS the County provides local units an opportunity to join this County-wide program and
realize economies of scale, cost savings, and possible cost sharing through the MDA grant that local units
could not achieve independently; and
WHEREAS the 2000 program is a cooperative effort between the County and local units which
provides that specifically designated areas of qualified forested municipal acreage will be aerially sprayed
with a MDA selected insecticide by an MDA qualified and approved agricultural pesticide spray contractor
in a attempt to minimize municipal tree damage; and
WHEREAS the Townships of Highland, Rose, and White Lake have submitted acreage for the 2000
program; and
WHEREAS the attached 2000 Gypsy Moth Suppression Program Municipal Participation Agreement
is submitted for Board action.
WHEREAS the County has also chosen to assist local units by providing a parallel program entitled
the "2000 Oakland County Gypsy Moth Suppression Program"for local units choosing to spray at lower insect
thresholds that do not qualify for MDA cost share; enabling the realization of economies of scale; and
Whereas the Townships of Orion, Springfield, and White Lake; the City of Rochester Hills have
submitted acreage for the 2000 program; and
WHEREAS the attached 2000 Oakland County Gypsy Moth Suppression Program Joint Operating
Agreement is submitted for Board action.
NOW THEREFOR BE IT RESOLVED that the Oakland County Board of Commissioners hereby
approves entering into the attached MUNICIPAL PARTICIPATION AGREEMENT and the attached JOINT
OPERATING AGREEMENT - 2000 OAKLAND COUNTY GYPSY MOTH SUPPRESSION PROGRAM
for each of the above named municipalities.
BE IT FURTHER RESOLVED that upon receipt of the final, executed MUNICIPALITY
PARTICIPATION AGREEMENT and the JOINT OPERATING AGREEMENT- 2000 OAKLAND
COUNTY GYPSY MOTH PROGRAM from each of the above eligible municipalities, accompanied by a
certified copy of the resolution of their respective governing bodies accepting the Agreement r the Oa land
tc?County Board of Commissioners authorizes the Oakland County Executive to execute)rld enter in each
of these Agreements on behalf of the County Of Oakland.
Chairperson, on behalf of the Public Services Committee, I mpve adoption g-e oing
resolution.
PUBLIC SERVICES COMMITTEE VOTE
Motion carried unanimously on a roll call vote with Galloway absent.
FIELD(Municipality)
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
This FIELD(Municipality) MUNICIPALITY PARTICIPATION AGREEMENT-2000 OAKLAND COUNTY
GYPSY MOTH PROGRAM (hereafter "AGREEMENT") is made and entered into between the FIELD(
Municipality), a Michigan Constitutional and Municipal Corporation whose address is FIELD(address)
FIELD(zipcode) (hereafter the "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan
Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac,
Michigan 48341 (hereafter the "COUNTY"). In this AGREEMENT, the COUNTY and/or the
MUNICIPALITY may also be referred to as a "PARTY" or the "PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree
filled landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program
to help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY has chosen to assist qualifying LOCAL UNITS by participating in a statewide treatment
program developed by the Michigan Department of Agriculture (hereafter "MDA"). The MDA program
offers the expertise and experience of the MDA in suppressing the Gypsy Moth infestation plus the
possibility of federal and/or state cost sharing for program expenses through a Michigan Department of
Agriculture grant entitled the Michigan Gypsy Moth Cooperative Suppression Program, 2000 Grant
Application (hereafter the "MDA GRANT").
The COUNTY, through this AGREEMENT, provides LOCAL UNITS eligible to participate under the MDA
GRANT, including the MUNICIPALITY, an opportunity to join this County-wide program and realize
economies of scale, cost savings, and possible cost sharing through the MDA GRANT that the
MUNICIPALITY could not achieve independently. This cooperative COUNTY program is entitled the 2000
Oakland County Gypsy Moth Suppression Program (hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with a MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor at the MDA determined point in the Gypsy Moth life cycle
in an attempt to minimize MUNICIPALITY tree damage.
The aerial insecticide application and timing aspects for the suppression of the Gypsy Moth in the 2000
PROGRAM are subject to the terms of the MDA GRANT, whereas the MUNICIPALITY'S participation in
the 2000 PROGRAM is subordinate to the MDA GRANT terms and subject to this AGREEMENT.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached,
incorporated, and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT', "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS", "MDA", "MDA GRANT" and "2000 PROGRAM" as defined
above, the following are also defined terms in this AGREEMENT:
a. "AGENT" or "AGENTS", when referred to as either an AGENT or AGENTS of the
COUNTY (e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall
be defined to include any and all of that PARTY'S officers, elected officials, appointed officials,
directors, board members, council members, authorities, boards, committees, commissions,
employees, managers, departments, divisions, volunteers, agents, representatives, and/or any
such persons' successors or predecessors, agents, employees, attorneys, or auditors (whether
such persons act or acted in their personal, representative, or official capacities), and/or any and
all persons acting by, through, under, or in concert with any of them. "AGENT" shall also include
any person who was an AGENT any time during this AGREEMENT but for any reason is no
longer employed, appointed, or elected in that capacity. "AGENT", as defined for any purpose in
this AGREEMENT, shall NOT include the PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to
coordinate and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under
this AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief
or damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct,
indirect or consequential, whether based upon any alleged violation of the constitution (federal or
state), any statute, rule, regulation or the common law, whether in law or equity, tort, contract, or
otherwise, and/or whether commenced or threatened and arising out of any alleged breach of any
duty by the MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this
AGREEMENT or are based on or result in any way from the MUNICIPALITY'S participation in the
2000 PROGRAM or this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and approved by the MDA, selected through an MDA prescribed bidding
process from the MDA list of qualified and approved agricultural aerial pesticide spray contractors
who met the MDA GRANT selection criteria. The PESTICIDE APPLICATOR shall be responsible
for the AERIAL SPRAYING, as defined herein, and as defined herein the PESTICIDE
APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers, boards,
directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all
persons acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for
under the MDA GRANT and/or this AGREEMENT.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to MDA and COUNTY approval, MDA GRANT
priority and eligibility requirements for REIMBURSEMENT, and the required property owner
and/or resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The
MUNICIPALITY SPRAY BLOCKS are specifically identified and described in Attachment "A".
g. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined
as any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in
connection with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be
determined by multiplying the total number of acres contained in all MUNICIPALITY SPRAY
BLOCKS times the "AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average
cost/acre under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all
participating LOCAL UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE
SPRAY COST/ACRE shall be determined by dividing the total dollar amount paid by the
COUNTY to the PESTICIDE APPLICATOR in connection with all 2000 PROGRAM AERIAL
SPRAYING (in all participating LOCAL UNITS, including the MUNICIPALITY) by the total number
of acres within the County of Oakland treated by AERIAL SPRAYING by the PESTICIDE
APPLICATOR in connection with the 2000 PROGRAM. The total number of acres within the
County of Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR shall be
determined by the MDA based upon MDA established pesticide-flow rates and spray and volume
measures taken on any SPRAY DAY(S). The MDA determination of the total number of acres
within the County of Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR
shall be final. The COUNTY anticipates that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will be less than $32.00 per acre. However, until the total 2000 PROGRAM
acreage to be sprayed is known, the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE can only
be estimated. If this cost/acre should exceed $32.00 per acre, the PARTIES may cancel this
AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE
APPLICATOR is scheduled by the COUNTY, the MDA, and the PESTICIDE APPLICATOR.
SPRAY DAY(S), in all participating LOCAL UNITS, including the MUNICIPALITY, are expected to
occur sometime between MAY 5, 2000 and June 10, 2000, depending upon such factors as the
daily caterpillar development reports, the weather, temperature, wind conditions, and other last-
minute variables upon which any decision to spray or postpone AERIAL SPRAYING must be
based. The COUNTY, with the MDA and the PESTICIDE APPLICATOR, shall decide the
commencement and sequence of all AERIAL SPRAYING and SPRAY DAY(S).
j. "ADMINISTRATIVE COSTS" shall be defined as any and all 2000 PROGRAM costs,
expenses, wages, salaries, fringe benefit costs, equipment, supplies, administrative overhead,
building costs, or any costs and expenses that are incurred and/or paid either by the COUNTY, on
or after October 1, 1998, but before September 30, 2000, (i.e., COUNTY ADMINISTRATIVE
COSTS) or by the MUNICIPALITY on or after October 1, 1998, but before June 30, 2000, (i.e.,
MUNICIPALITY ADMINISTRATIVE COSTS) in connection with the 2000 PROGRAM.
ADMINISTRATIVE COSTS and MUNICIPALITY SPRAY COSTS are mutually exclusive cost
categories. All claimed ADMINISTRATIVE COSTS must have been incurred exclusively for and
in connection with the 2000 PROGRAM. No additional ADMINISTRATIVE COSTS shall be
allowed after the 2000 PROGRAM is ended. "ADMINISTRATIVE COSTS" may be further defined
and limited to "MDA APPROVED ADMINISTRATIVE COSTS".
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
k. "MDA APPROVED ADMINISTRATIVE COSTS" shall be defined as any and all
ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM by either PARTY
which have been approved by the MDA as eligible for possible REIMBURSEMENT under the
terms of the MDA GRANT. The MDA shall solely decide which, if any, ADMINISTRATIVE
COSTS submitted by the COUNTY or the MUNICIPALITY in connection with the 2000
PROGRAM shall be approved and eligible for REIMBURSEMENT under established MDA
GRANT criteria and in what amount, if any, REIMBURSEMENT shall be paid to the COUNTY.
I. "REIMBURSEMENT" shall be defined as any MDA GRANT funds received by the
COUNTY because of the COUNTY'S submission of any MUNICIPALITY SPRAY COST, or any
COUNTY or MUNICIPALITY ADMINISTRATIVE COSTS to the MDA which were specifically paid
to the COUNTY and attributable to any specific MUNICIPALITY SPRAY COST or any COUNTY
or MUNICIPALITY ADMINISTRATIVE COSTS. The MDA shall not reimburse the PESTICIDE
APPLICATOR or the MUNICIPALITY directly and all REIMBURSEMENT shall be paid only to the
COUNTY. The MUNICIPALITY agrees that the MDA shall solely decide: the extent, and amount,
if any, of any possible REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or
MUNICIPALITY ADMINISTRATIVE COSTS. The MUNICIPALITY agrees that the MDA GRANT
establishes criteria for MUNICIPALITY REIMBURSEMENT and that not every MUNICIPALITY
SPRAY COST and/or MUNICIPALITY ADMINISTRATIVE COSTS incurred shall be eligible for
MDA approval or REIMBURSEMENT or receive a uniform rate of REIMBURSEMENT. The
COUNTY shall have no obligation to represent, challenge, contest, appeal, or argue for any
REIMBURSEMENT on behalf of the MUNICIPALITY with the MDA.
m. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related
legal obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of
any MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as
provided below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws
any MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage
from that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
, when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM,
will be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the
AERIAL SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce,
withdraw, or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may
subject the COUNTY to certain "PENALTIES" under its contract with the PESTICIDE
APPLICATOR. Decisions by the MDA, the COUNTY, or any governmental authority other than
the MUNICIPALITY to exclude or prohibit AERIAL SPRAYING of any partial or entire
MUNICIPALITY SPRAY BLOCK shall not be considered a decision by the MUNICIPALITY to
change, withdraw, or cancel the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCK for
the purposes of assessing any PENALTIES.
COUNTY MDA GRANT COORDINATION RESPONSIBILITIES
2. The COUNTY will apply for, attempt to qualify for, and secure possible MDA GRANT
REIMBURSEMENT to reduce the total 2000 PROGRAM costs. The COUNTY, with the cooperation of
the MUNICIPALITY and subject to this AGREEMENT, will undertake all reasonable and necessary
administrative steps required by the Grantee under the MDA GRANT.
3. The COUNTY will enter a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR according to the MDA GRANT required purchasing requirements, including
the development of the required Request for Quotation ("RFQ"), solicitation and review of all bids, and the
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
final selection and contracting with an MDA approved and qualified PESTICIDE APPLICATOR to conduct
the AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the 2000 PROGRAM.
4. The COUNTY shall be the sole Grantee under the MDA GRANT and shall act as the MDA
GRANT coordinator and fiscal agent for the MUNICIPALITY, subject to the terms of this AGREEMENT,
with regard to the financing and initial payment to the PESTICIDE APPLICATOR for all MUNICIPALITY
SPRAY COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all MUNICIPALITY
SPRAY COSTS shall always remain the eventual, final, and exclusive financial responsibility of the
MUNICIPALITY.
5. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT and the MDA GRANT.
6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the
2000 PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information
to assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000
PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program
options, the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth
infestation to be available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information from the MDA to assist
the MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY
SPRAY BLOCKS under the 2000 PROGRAM and for possible REIMBURSEMENT under the
MDA GRANT.
d. Provide the MUNICIPALITY with all necessary operational forms and MDA GRANT
documents so the MUNICIPALITY can thoroughly understand the MDA GRANT requirements and
REIMBURSEMENT limitations under the MDA GRANT and/or this AGREEMENT. The COUNTY
shall also provide any MDA GRANT procedures and/or operating instructions related to
MUNICIPALITY SPRAY BLOCK, marking requirements so that the MUNICIPALITY can
appropriately train and assign MUNICIPALITY AGENTS to perform these obligations.
7. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media as
required by the MDA GRANT. The COUNTY will provide information and answer questions from the
public, community and citizen groups, LOCAL UNITS, and the media about the Gypsy Moth infestation
and AERIAL SPRAYING treatment under the 2000 PROGRAM.
8. The COUNTY, as required by the MDA GRANT, shall also hold a County-wide public meeting or
an MDA approved alternative method to solicit citizen concerns regarding the 2000 PROGRAM and
provide technical information. The COUNTY, at this meeting, shall explain the 2000 PROGRAM, the
insecticide that will be used, the MUNICIPALITY SPRAY BLOCK qualifying parameters as required in the
Environmental Impact Statement, and collect information regarding environmentally sensitive areas.
9. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY
for future treatment planning and programs.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
10. The COUNTY, as required by the MDA GRANT, shall conduct the post treatment evaluation and
survey of a random sample of treated MUNICIPALITY SPRAY BLOCKS and property owners from the
treated MUNICIPALITY SPRAY BLOCKS, using MDA approved questionnaire and survey tools to
determine the percentage of foliar preservation necessary to comply with the MDA GRANT requirements.
11. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to
capture trends for future program planning.
12. The COUNTY will consolidate the MUNICIPALITY SPRAY COSTS with all such costs from all
other participating LOCAL UNITS into the combined MDA GRANT required format and submit same to
the MDA for approval and possible REIMBURSEMENT. The COUNTY will similarly combine all
MUNICIPALITY ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM with all
such costs incurred by other participating LOCAL UNITS and the COUNTY and will submit all such 2000
PROGRAM ADMINISTRATIVE COSTS to the MDA for approval and possible REIMBURSEMENT.
13. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are
necessary to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL
SPRAYING of all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
14. The MUNICIPALITY warrants that only those such blocks that have been: surveyed for egg mass
density as required by the MDA, which in the judgment of the MUNICIPALITY meet MDA GRANT
eligibility criteria and are located entirely within the MUNICIPALITY are included in the MUNICIPALITY
SPRAY BLOCKS which are further described in Attachment "A".
15. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet MDA GRANT criteria for inclusion, do not qualify
for any MDA GRANT REIMBURSEMENT, will burden or jeopardize the COUNTY'S compliance with the
MDA GRANT, or unacceptably obligate the COUNTY to pay for MUNICIPALITY SPRAY COSTS beyond
anticipated MDA GRANT REIMBURSEMENT or which cannot be safely or effectively treated by AERIAL
SPRAYING as decided by the PESTICIDE APPLICATOR. The MUNICIPALITY agrees that,
notwithstanding any provision in this AGREEMENT, the MDA also has the absolute right to reject any
MUNICIPALITY SPRAY BLOCKS and/or deny REIMBURSEMENT for any MUNICIPALITY SPRAY
COSTS or ADMINISTRATIVE COSTS for any rejected MUNICIPALITY SPRAY BLOCKS.
16. After COUNTY and MDA approval of MUNICIPALITY SPRAY BLOCKS, the permission and
approval of all residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS
shall also be sought. The COUNTY shall notify all property owners, as required by the MDA GRANT, in
the MUNICIPALITY SPRAY BLOCKS at least 30 days before the projected SPRAY DAY(S) of the
planned AERIAL SPRAYING. For these purposes, the MUNICIPALITY agrees to provide, in such
quantities as requested, MUNICIPALITY resident and/or property owner mailing lists, mailing labels, and
any other identifying information necessary to facilitate communications between the COUNTY
COORDINATOR and any resident and/or property owner in any MUNICIPALITY SPRAY BLOCK.
17. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call
or objection with the individual's name, address, telephone number and parcel number. The
MUNICIPALITY shall promptly forward copies of any entries into such written logs and records to the
COUNTY COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be
scheduled for AERIAL SPRAYING after the objection of the resident or property owner has been
received. The COUNTY COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure
that the 2000 PROGRAM is completely understood and verify that the property owner does not wish their
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
property to be included in the AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any
property owner's exclusions from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect
property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
18. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or
between any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S)
the MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes
to the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report
any additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be
mapped by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING.
Maps shall be accompanied by a written summary on a form provided by the MDA that identifies for each
proposed MUNICIPALITY SPRAY BLOCK the number of homes, the MDA SPRAY BLOCK priority
category and the number of acres to be sprayed within each MUNICIPALITY SPRAY BLOCK. The
MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for
public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
19. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The
MUNICIPALITY agrees to make the necessary staffing and planning arrangements and adjust, as
necessary, any MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday
SPRAY DAY(S)), to meet its SPRAY DAY(S) obligations on such short notice.
20. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall ensure that all MUNICIPALITY SPRAY BLOCKS are adequately and properly marked with the
appropriate helium-filled marker balloons or adequate natural landmarks, as specified in the MDA GRANT
or the PESTICIDE APPLICATOR contract. The MUNICIPALITY shall be responsible for providing
enough MUNICIPALITY AGENTS to place such required marker balloons (hereafter "balloon crews") to
adequately identify MUNICIPALITY SPRAY BLOCKS for AERIAL SPRAYING and otherwise help in
related SPRAY DAY(S) activities as requested. The MUNICIPALITY shall be responsible for assuring
that all non-spray areas are adequately marked off with either off-color balloons or by double balloons so
that the pilot conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY
BLOCKS from adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt
removal of all balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY
DAY(S) operations have been completed.
21. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone or suitable
mobile radios for communicating with the COUNTY COORDINATOR. Except for marking balloon related
supplies (e.g., balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for
providing all MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK
maps, transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole
judgment, deems are required or beneficial for the completion of any MUNICIPALITY responsibilities
under this AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
22. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all
federal, state, and local laws, ordinances, regulations, and agency requirements in any manner affecting
the work or performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and
assist in securing all necessary certificates and permits from such public authorities as may be required
for AERIAL SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations
for safety precautions under the exclusive control and supervision of any other governmental agency or
entity. The MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary
for the protection of persons and property which may be affected by AERIAL SPRAYING, and will notify
the COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any
potentially dangerous situation. In case of an emergency affecting the safety of any persons or property,
the MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by
attempting to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
23. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY
LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the
2000 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
24. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified
MUNICIPALITY AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this
AGREEMENT. The MUNICIPALITY AGENTS shall be employed and assigned based on appropriate
qualifications and other factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it
shall be solely responsible for furnishing all MUNICIPALITY AGENTS with all job instructions, job
descriptions and job specifications and shall otherwise control, supervise, train or direct MUNICIPALITY
AGENTS in the performance of any MUNICIPALITY duties or obligations under this AGREEMENT. The
MUNICIPALITY agrees that the COUNTY shall have no liability or obligation in this regard.
25. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner. The
MUNICIPALITY agrees that neither the MUNICIPALITY nor any MUNICIPALITY AGENT will, in any
manner, interfere or prevent the COUNTY from timely completion of any COUNTY obligations under the
MDA GRANT.
26. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall
be considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees
that it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or
future wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits,
travel expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes,
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
and/or any other statutory or contractual right or benefit based on or in any way related to any
MUNICIPALITY AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S
statutory, contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY
AGENT. The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any
and all CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any
COUNTY AGENT by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise
from, or are in any way related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other
employment-related or based rights, including, but not limited to, those described in this Paragraph.
MDA GRANT LIMITATIONS ON EMPLOYMENT OF MUNICIPALITY AGENTS
27. The MUNICIPALITY shall insure that no member of the legislature of the State of Michigan or any
individual employed by the State shall be permitted to share in any REIMBURSEMENT or other benefit
paid to or received by the MUNICIPALITY from the MDA GRANT.
28. The MUNICIPALITY shall report to the COUNTY within five (5) days after the end of each month,
that this AGREEMENT is in effect, the names, social security numbers and the amount of payment made
to any former State of Michigan employee who:
a. Retired from the State between June 2, 1984 and September 30, 1984 under the
provisions of Act 2 and 3 of the Public Acts of 1984.
b. Is less than 62 years of age; and
c. Performed services purchased by the State under the provisions of the MDA GRANT
during the month. For any month which the MUNICIPALITY has no employees (as described
above) assigned to work performed under the provisions of this AGREEMENT, no report is
required.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
29. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
30. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide
any financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset
any MUNICIPALITY SPRAY COSTS or MUNICIPALITY ADMINISTRATIVE COSTS in connection with
the MUNICIPALITY'S participation in the 2000 PROGRAM except as expressly provided for in this
AGREEMENT. The MUNICIPALITY agrees that any and all such MUNICIPALITY SPRAY COSTS, and
any PENALTIES shall at all times remain the sole financial responsibility of the MUNICIPALITY.
31. The MUNICIPALITY agrees that its participation in the 2000 PROGRAM and/or any and all of its
obligations under this AGREEMENT, including but not limited to the MUNICIPALITY'S payment
obligations to the COUNTY, are NOT contingent, dependent, and/or in any way conditioned upon the
eventual receipt of any REIMBURSEMENT under the MDA GRANT or from any other financial assistance
or support from outside the MUNICIPALITY. The MUNICIPALITY further agrees that any amount due and
owing to the COUNTY under this AGREEMENT, which is still unpaid at the time the COUNTY distributes
funds to the MUNICIPALITY from the Delinquent Tax Revolving Fund (DTRF), the COUNTY shall be
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
entitled to reduce, set-off, and permanently retain any amount due to the MUNICIPALITY from Delinquent
Tax Revolving Fund (DTRF) by any such amount then still due and owing the COUNTY pursuant to this
AGREEMENT.
POSSIBLE MDA GRANT REIMBURSEMENT
33. The MUNICIPALITY shall submit all itemized MUNICIPALITY ADMINISTRATIVE COSTS and
related expenses for the 2000 PROGRAM to the COUNTY COORDINATOR no later than June 30, 2000,
and shall provide written documentation for any such costs as required. Possible MUNICIPALITY
ADMINISTRATIVE COST REIMBURSEMENT is dependent upon properly submitted and documented
expenses. The COUNTY shall not be required to submit any MUNICIPALITY ADMINISTRATIVE COSTS
that are either: incurred or submitted after June 30, 2000, not sufficiently documented, or not readily
transferable to the MDA GRANT required format. The COUNTY shall not to be required to speculate,
compile, or calculate any MUNICIPALITY ADMINISTRATIVE COSTS claimed or the purpose(s) for which
any MUNICIPALITY ADMINISTRATIVE COSTS were incurred by the MUNICIPALITY.
34. Upon receipt of any REIMBURSEMENT the COUNTY will prepare a REIMBURSEMENT
summary of all MUNICIPALITY SPRAY COSTS and MDA APPROVED ADMINISTRATIVE COSTS in
connection with the 2000 PROGRAM and the amount of any such REIMBURSEMENT received
attributable to any MUNICIPALITY SPRAY COST and MUNICIPALITY MDA APPROVED
ADMINISTRATIVE COSTS. The MUNICIPALITY agrees that any MUNICIPALITY benefit or interest in
any REIMBURSEMENT received by the COUNTY under the MDA GRANT or under the terms of this
AGREEMENT shall be based solely upon any MDA approved and paid REIMBURSEMENT for any
MUNICIPALITY SPRAY COSTS and/or any MDA APPROVED ADMINISTRATIVE COSTS incurred and
paid by the MUNICIPALITY and shall not be based, in any manner, upon any such costs as may have
been incurred, claimed, or submitted by the MUNICIPALITY.
35. The MUNICIPALITY agrees that any MDA GRANT REIMBURSEMENT for any 2000 PROGRAM
costs incurred by either the MUNICIPALITY or the COUNTY are not certain or guaranteed. The PARTIES
further agree that the failure of the COUNTY to receive or qualify for any MDA GRANT
REIMBURSEMENT shall neither relieve the MUNICIPALITY of any financial obligation to the COUNTY
nor create any financial liability for the COUNTY to reimburse the MUNICIPALITY for any and all
MUNICIPALITY cost or expenses associated with or resulting from its participation in the 2000
PROGRAM.
MUNICIPALITY BENEFIT FROM POSSIBLE MDA GRANT REIMBURSEMENT
36. The PARTIES agree that the MUNICIPALITY may be eligible to benefit from any possible MDA
GRANT REIMBURSEMENT to the COUNTY on the following terms:
a. In the event that the COUNTY receives any MDA GRANT REIMBURSEMENT for any
part of any MUNICIPALITY SPRAY COSTS or any MDA APPROVED ADMINISTRATIVE COSTS
incurred and paid by the MUNICIPALITY, the COUNTY shall apply such amount as a credit
toward any amount then unpaid, due and/or owing to the COUNTY from the MUNICIPALITY
under this AGREEMENT. The total amount of REIMBURSEMENT credited toward the payment
of MUNICIPALITY SPRAY COSTS shall be the same amount as the amount of
REIMBURSEMENT received and paid to the COUNTY for all MUNICIPALITY SPRAY BLOCKS.
The parties acknowledge the possibility that some Municipality program-related costs may not be
paid before the time that any Reimbursement is to be credited. It is not the intent of this
paragraph to exclude any bonafide Municipality program cost, for purposes of crediting any
Reimbursement, if for some unusual reason such cost has not yet been paid by the Municipality.
b. If the amount of any direct MUNICIPALITY payments made to the COUNTY for
MUNICIPALITY SPRAY COSTS, plus any REIMBURSEMENT paid to and in the possession of
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
the COUNTY which is attributable to any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred by the MUNICIPALITY, exceeds the total
amount of all MUNICIPALITY SPRAY COSTS, and any MUNICIPALITY PRO-RATA SHARE OF
ALL NON-REIMBURSED COUNTY ADMINISTRATIVE COSTS, as defined herein, and any
possible PENALTIES; such excess amounts shall be deemed to have been an overpayment by
the MUNICIPALITY to the COUNTY and any such excess amounts shall be returned to the
MUNICIPALITY.
c. If, however, after all REIMBURSEMENT attributable to any MUNICIPALITY SPRAY
COSTS or MUNICIPALITY ADMINISTRATIVE COSTS has been received by the COUNTY and
credited, as provided for above, there remains any MUNICIPALITY SPRAY COST, any
MUNICIPALITY PRO-RATA SHARE OF ALL NON-REIMBURSED COUNTY ADMINISTRATIVE
COSTS, as defined herein, (and any possible PENALTIES) amounts unpaid and owing to the
COUNTY, the MUNICIPALITY shall be invoiced for the balance due.
d. Any REIMBURSEMENT received by the COUNTY attributable to any MDA APPROVED
ADMINISTRATIVE COSTS incurred and paid by the COUNTY in connection with the 2000
PROGRAM, shall be credited and used by the COUNTY toward offsetting the COUNTY'S costs
and expenses incurred in administering the 2000 PROGRAM, and shall not be credited or used to
the financial benefit of the MUNICIPALITY, in any manner.
COUNTY INVOICES TO MUNICIPALITY
37. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY. This invoice shall be based upon the
COUNTY'S best estimate at the time of the anticipated total MUNICIPALITY SPRAY COSTS minus the
total anticipated REIMBURSEMENT expected to be attributable to all MUNICIPALITY SPRAY COSTS
and expected to be received by the COUNTY from the MDA at a later date. The COUNTY'S estimates for
the purposes of this invoice, based upon its evaluation of then existing MDA GRANT circumstances, shall
be conclusive. The MUNICIPALITY agrees to pay the full amount shown on or before May 1, 2000, or no
later than 15 days after the invoice date, whichever date is later.
38. After final MDA GRANT REIMBURSEMENT amounts attributable to MUNICIPALITY SPRAY
COSTS and non recoverable costs are calculated or incurred by the MUNICIPALITY are received by the
COUNTY, the COUNTY shall prepare and forward to the MUNICIPALITY an invoice, if necessary, for the
payment of any then remaining unpaid or otherwise un-reimbursed MUNICIPALITY SPRAY COSTS
incurred and paid by the COUNTY in connection with any MUNICIPALITY SPRAY BLOCKS. The
MUNICIPALITY agrees to pay the full amount shown on this invoice within 30 days after the date of the
invoice.
MUNICIPALITY RECORD KEEPING
39. The MUNICIPALITY shall complete all MDA GRANT documents as required and cooperate with
the COUNTY in supplying all necessary or required information, forms, or cost and expense data to the
COUNTY on a timely basis. The MUNICIPALITY agrees that it shall maintain documentation of all costs
incurred and funds disbursed and shall retain all financial reports, supporting documents, and statistical
records until September 30, 2002. The MUNICIPALITY shall maintain any and all records that allow for
comparison of actual MUNICIPALITY outlays with all amounts submitted for REIMBURSEMENT. The
MUNICIPALITY'S overall financial management system must ensure effective control over, and
accountability for all funds received and/or expended. MUNICIPALITY accounting records must be
supported by documents such as canceled checks, invoices, personnel time reports, (e.g., time reports
must show name, date worked, position, brief description of duty or responsibility and number of hours
worked.), receipts or other verifiable proof of payment. The MUNICIPALITY agrees that any
MUNICIPALITY costs and expenses in connection with the 2000 PROGRAM may be subject to an audit
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
by the State of Michigan or the COUNTY at any time. The MUNICIPALITY agrees to cooperate fully with
any State of Michigan or COUNTY auditors in this regard and will allow such auditors complete and open
access to any of the MUNICIPALITY'S 2000 PROGRAM related records. The MUNICIPALITY further
agrees that it shall return any funds it was paid or pay any amount of REIMBURSEMENT it received the
benefit of as a credit or otherwise in connection with the 2000 PROGRAM when MUNICIPALITY records
and documentation fail to support, according to accepted accounting and auditing standards, any
MUNICIPALITY expenses.
MUNICIPALITY PROVIDED INSURANCE
40. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under
this AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any
MUNICIPALITY AGENT, or by anyone for whose acts any of them may be liable.
e. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have
insurance or participate in a mandatory state fund to cover the benefits payable to any
MUNICIPALITY AGENT.
f. Liabilities for damages because of bodily injury, occupational sickness or disease, or
death of his employees.
9. Liabilities for damages because of bodily injury, sickness or disease, or death of any
person other than any MUNICIPALITY AGENT, subject to limits of liability of not less than
$300,000 each occurrence and, when applicable $300,000 annual aggregate, for non-automobile
hazards and as required by law for automobile hazards.
h. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each
occurrence for non-automobile hazards and as required by law for automobile hazards.
Insurance for the preceding two (2) subparagraphs non-automobile hazards on a
combined single limit of liability basis shall not be less than $300,000 each occurrence and when
applicable, $300,000 annual aggregate. The insurance shall be written for not less than any limits
of liability herein specified or required by law, whichever is greater, and shall include contractual
liability insurance as applicable to the MUNICIPALITY'S obligations under the indemnification
provisions of this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
41. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by
the MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
42. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
DISCLAIMER OF ANY COUNTY WARRANTY
43. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and
enter this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to
participate. In making this decision, the MUNICIPALITY has relied entirely upon its own investigation,
and/or has had ample opportunity to conduct such an investigation, of all material facts, applicable laws,
and all such other circumstances that might influence upon the MUNICIPALITY'S decision to enter this
AGREEMENT. The COUNTY shall make available to the MUNICIPALITY, upon request, copies of any
information it receives from the MDA in connection with the 2000 PROGRAM and the AERIAL
SPRAYING.
44. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING
component of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to
any tree by Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy
Moths, or that the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or
effective, or the safest and most effective means of suppressing the Gypsy Moth infestation, or any other
performance-based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational
components of the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING
for the delivery of insecticide, the choice of insecticide, the insecticide application rates, the timing of such
applications, etc., have been established under the terms of the MDA GRANT in which the
MUNICIPALITY has voluntarily consented to participate and assume all risks described and outlined in
this AGREEMENT.
LIMITATION OF LIABILITY
45. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either
PARTY or any third person, whether in an action in contract or tort, whether or not the other PARTY has
been advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder
shall in no event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the
COUNTY. This AGREEMENT is intended to allocate the risks between the COUNTY and the
MUNICIPALITY, and the PARTIES agree that the allocation of each PARTY'S efforts, costs, and
obligations under this AGREEMENT reflect this allocation of risk and the limitations of liability specified
herein.
46. The COUNTY under the terms of the MDA GRANT was limited in the selection and contract terms
with the PESTICIDE APPLICATOR. The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or
liability against the COUNTY for any material defects, errors, mistakes, negligence, or omissions in the
PESTICIDE APPLICATOR RFQ, the bid specifications, the bid procedure, the bid award process, the
PESTICIDE APPLICATOR contract negotiation process, the preparation or execution of the PESTICIDE
APPLICATOR contract, or any other errors or mistakes of fact by the COUNTY in the selection of the
PESTICIDE APPLICATOR. The MUNICIPALITY agrees that at all times and for all purposes under this
AGREEMENT the PESTICIDE APPLICATOR relationship to the COUNTY shall be that of an
INDEPENDENT CONTRACTOR and not a COUNTY AGENT as defined herein. The MUNICIPALITY
hereby agrees to waive any CLAIM(S) or liability against the COUNTY based in any manner upon any act
or omission of the PESTICIDE APPLICATOR.
CANCELLATION
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
47. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
48. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
49. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM
acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-
WIDE SPRAY COSTS/ACRE will exceed $30.00 per acre, the COUNTY shall notify the MUNICIPALITY
in writing of the then anticipated cost. The MUNICIPALITY, within five days after the receipt of such
notice, but in no event after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by
a written to the COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher
than anticipated costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the
MUNICIPALITY paid to the COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is
obligated, shall be returned to the MUNICIPALITY. The COUNTY may also unilaterally cancel this
AGREEMENT should it appear that the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed
$30.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT.
The MUNICIPALITY acknowledges that the MDA may cancel the MDA GRANT at any time. In
the event the MDA GRANT is canceled or otherwise materially reduced in scope for any reason, including
but not limited to a lack of funding, a determination that AERIAL SPRAYING effort is too late to be
effective, or any other operational reason, or should the expectations of the MDA GRANT
REIMBURSEMENT materially change anytime before the SPRAY DAY(S), the COUNTY may also cancel
this AGREEMENT by giving the MUNICIPALITY written notice of such cancellation.
2000 PROGRAM CHANGES
50. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to
cancel this AGREEMENT or otherwise change the total number acres or the configuration of any
MUNICIPALITY SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the
COUNTY incurring any PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated
to pay to the COUNTY the full amount of any and all PENALTIES incurred by the COUNTY. The
MUNICIPALITY agrees that any amount due and owing to the COUNTY as PENALTIES shall be above
and beyond any other amounts otherwise due and owing to the COUNTY under this AGREEMENT. The
MUNICIPALITY shall not be permitted to add, delete, substitute or change the configuration of any
MUNICIPALITY SPRAY BLOCKS as shown on Attachment "A" without the written approval of the
COUNTY and the MDA.
FORCE MAJEURE
51. Neither the COUNTY nor the MDA shall be liable to the MUNICIPALITY or any person for failure
or delay in performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or
delay is caused by circumstances beyond the control of the COUNTY or the MDA, including, without
limitation, failures resulting from weather delays, premature or delayed development of the Gypsy Moth
caterpillars, high winds, unsafe flying conditions, circumstances that make the effectiveness of AERIAL
SPRAYING to suppress the infestation less than optimal, any material changes in the MDA GRANT
and/or REIMBURSEMENT schedules, accidents, labor stoppages, war, any default by the PESTICIDE
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
I 2.
APPLICATOR, the inability to secure necessary materials or labor, governmental acts or regulations, acts
of God, or other causes beyond the COUNTY'S or MDA'S control, whether or not similar to those above.
The COUNTY agrees that, in any such event, the COUNTY shall communicate that fact to the
MUNICIPALITY when such fact(s) becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
52. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance
coverage(s), waivers of liability, liabilities, audit requirements, record-keeping requirements, any
MUNICIPALITY payment obligations to the COUNTY, 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 before the cancellation or
completion of this AGREEMENT, shall survive the cancellation or completion of this AGREEMENT. The
expiration, cancellation, or termination of this AGREEMENT shall be without prejudice to any rights or
claims of either PARTY against the other and shall not relieve either PARTY of any obligations which, by
their nature, survive expiration or termination of this AGREEMENT.
2000 PROGRAM COMPLETION
53. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be
suppressed by AERIAL SPRAYING, or when 60% or more of the forest canopy has already been
defoliated as determined by the COUNTY or the MDA.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
54. The PARTIES reserve to themselves any rights and obligations related to the provision of any
and all of each PARTY'S respective governmental services, authority, responsibilities, and obligations.
Except as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to,
create, diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory,
and/or other legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability,
capacity, immunity, or authority of either the MUNICIPALITY or the COUNTY to any other person or
PARTY.
55. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties
under this AGREEMENT to any other person and/or public or private corporation, entity, or organizations
of any kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
56. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of
the COUNTY Board of Commissioners and the governing FIELD(Legislative Body) of the
MUNICIPALITY. The approval and terms of this AGREEMENT shall be entered in the official minutes
and proceedings of the COUNTY Board of Commissioners and governing FIELD(Legislative Body) of the
MUNICIPALITY and shall also be filed with the office of the Clerk for the COUNTY and the
MUNICIPALITY. In addition, this AGREEMENT, and any subsequent amendments, shall be filed with the
Secretary of State for the State of Michigan by the COUNTY and shall not become effective or
implemented prior to its filing with the Secretary of State.
57. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing FIELD(Legislative Body) of the
MUNICIPALITY. This AGREEMENT shall not be changed, supplemented, or amended except as
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
I Is
provided for herein, and no other act, verbal representation, document, usage or custom shall be deemed
to amend or modify this AGREEMENT.
AUDIT AND RECORD ACCESS
58. As required by the MDA GRANT, the MDA and/or the COUNTY shall have the right to audit the
MUNICIPALITY from time to time, after reasonable written notice of its intended audit, in order to assess
the MUNICIPALITY'S compliance with the terms of this AGREEMENT and to determine whether the
MUNICIPALITY is following generally accepted accounting standards and/or complying with all MDA
GRANT audit requirements and standards. The MUNICIPALITY shall similarly permit authorized State or
federal Agents to make one or more such audits and program reviews.
59. The MDA and/or COUNTY shall have the right to initiate any audit for a period of three (3) years
after the expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be
concluded or otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
60. The project will be subject to an audit by the State prior to or after the final payment. In addition,
Grantees that receive $25,000 or more in federal financial assistance annually shall have an audit
performed in accordance with Federal Circular No. A-128. A copy of the audit is to be submitted to the
Grant Administrator.
61. In conjunction with any audit the MUNICIPALITY shall permit the COUNTY and/or the MDA full
and complete availability and access to:
j. Any and all original personnel records, including, but not limited to, work evaluations,
references, wage records, time sheets and attendance records, of any MUNICIPALITY AGENTS,
as requested, for purposes of program evaluation, fiscal audit pertaining to this AGREEMENT.
k. All original records related to or necessary for determining any MUNICIPALITY
ADMINISTRATIVE COSTS or any MUNICIPALITY costs or expenses related to this
AGREEMENT, and/or any MUNICIPALITY costs or amounts submitted to the MDA for possible
REIMBURSEMENT.
REPAYMENT OF FUNDS RECEIVED BY MUNICIPALITY IN EXCESS OF ACTUAL MDA APPROVED
COSTS AND EXPENSES
62. The MUNICIPALITY agrees to repay the COUNTY, when and as requested, an amount equal to
any and all dollar amounts paid to the MUNICIPALITY by the COUNTY in connection with this
AGREEMENT which, based upon any audit finding or review of MUNICIPALITY'S records of actually
incurred and paid expenses, are determined by the MDA or the COUNTY to:
I. Have been either unreasonable and/or unnecessary MUNICIPALITY costs and expenses
and/or expenses which were not actually incurred and paid by the MUNICIPALITY in connection
with the 2000 PROGRAM. The MDA has defined "Reasonable Costs" as follows: A cost is
reasonable if, in it's nature and amount, it does not exceed that which would be incurred by a
prudent person under the circumstances prevailing at the time the decision was made to incur the
cost. In determining reasonableness of a given costs, consideration shall be given to: 1) whether
or not the items are necessary and reasonable for proper and efficient performance of the
agreement, and 2) Market prices for comparable goods or services, and 3) whether the
individuals concerned acted with prudence in the circumstances considering their responsibilities
to the governmental unit, its employees, the public at large, and the federal government.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16
m. Have been ineligible or inappropriate for the payment of any REIMBURSEMENT to
MUNICIPALITY under the terms and conditions of this AGREEMENT.
n. MUNICIPALITY repayment to the COUNTY, if any, as a result of audit findings or MDA or
COUNTY review of any MUNICIPALITY expenses shall be made by the MUNICIPALITY within
ninety (90) days following receipt of the final audit report or other such notice from the MDA
and/or the COUNTY. The MUNICIPALITY'S obligation to repay the COUNTY, as set forth in this
section, shall be absolute and unconditional and shall not be affected by the occurrence of either
PARTY'S default of any term or condition of this AGREEMENT nor shall any other occurrence or
event relieve, limit, or impair the obligation of the MUNICIPALITY to repay the COUNTY as
provided for herein. The MUNICIPALITY further agrees that the COUNTY may, at its sole option,
recover any such amounts by offsetting any amounts otherwise due and owing to the
MUNICIPALITY by the COUNTY.
MUNICIPALITY CONTRACTS FOR MERCHANDISE AND SERVICES
63. For purchases of services and merchandise made by the MUNICIPALITY or any MUNICIPALITY
sub-contractor against or in anticipation of REIMBURSEMENT under the MDA GRANT, prior approval
must be received from the MDA for any single items costing $1,000 or greater. A formal bid process must
be followed for items of $10,000 or greater. A formal process consists of preparing an RFQ or bid to be
sent to at least five possible bidders. The bid process must be carried out under the direction of the MDA
or its representative. The MUNICIPALITY shall choose the lowest priced responsive and responsible
bidder that meets the requirements of the bid in order to meet State and Federal procurement guidelines.
MUNICIPALITY WAGES
As required by the MDA GRANT, any contract executed between the MUNICIPALITY and a
contractor which requires or involves the employment of construction mechanics, defined as skilled or
unskilled mechanics, laborers, workmen, helpers, associates, or apprentices working on projects funded
or anticipated to be funded in any part from any REIMBURSEMENT from the MDA GRANT but not
including executive, administrative, professional, office or custodial employees, shall contain the following
terms:
a. Rates of wages and fringe benefits to be paid to each class of construction mechanics by
the MUNICIPALITY and all their contractors shall not be less than the wage and fringe benefit
rates prevailing in the locality in which the work is to be performed.
b. In addition, the MUNICIPALITY and all of their contractors agree to comply with all
pertinent provisions of PA 166 of 1965, "An Act to require prevailing wages and fringe benefits on
State projects; to establish the requirements and responsibilities of contracting agents and
bidders; and to prescribe penalties."
SUCCESSORS AND ASSIGNS BOUND
64. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of
them.
NO THIRD-PARTY BENEFIT
65. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 17
be subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of
any person, including, but not limited to, any MUNICIPALITY Resident, any Resident's legal
representative, any organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
66. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
NOTICES
67. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or 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.
CHOICE OF LAW
68. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the
context so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
69. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
70. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
71. This AGREEMENT, consisting of a total of Li pages, including the pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete
and entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all
prior agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further agreed that the
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 18
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 MUNICIPALITY and the
COUNTY in any way related to the subject matter hereof, except as expressly stated herein.
72. For and in consideration of the mutual promises, acknowledgments, and representations set forth
in this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 19
IN WITNESS WHEREOF, L. BROOKS
PATTERSON, County Executive of the COUNTY OF
OAKLAND, hereby acknowledges that he has been
authorized by a resolution of the Oakland County
Board of Commissioners, a certified copy of which is
attached, to execute this AGREEMENT on behalf of
the COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
FIELD(Municipality):
a Michigan Constitutional and Municipal Corporation
IN WITNESS WHEREOF, FIELD(Name), FIELD(
Title) of the FIELD(Municipality), hereby
acknowledges that FIELD(he/she) has been
authorized by a resolution of the FIELD(Legislative
Body) of FIELD(Name of Twp/city/village), a certified
copy of which is attached, to execute this
AGREEMENT on behalf of the MUNICIPALITY, and
hereby accepts and binds the MUNICIPALITY to the
terms and conditions of this AGREEMENT on this
day of , 2000.
L. BROOKS PATIERSON,
County Executive
BY:
BY:
FIELD(Name),
FIELD(Title)
WITNESSED:
BY:
BY:
FIELD(ClerkName),
Clerk
DATE:
DATE:
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 20
I HERE PROVE FOREGOING
L. Brooks Patters
ounty Executive Dat
• ./ •
Resolution #00030 February 24, 2000
Moved by Millard supported by Colasanti the resolution be adopted.
AYES: Garfield, Gregory, Jensen, Law, McCulloch, McPherson, Melton,
Millard, Moffitt, Obrecht, Patterson, Schmid, Sever, Suarez, Taub, Amos, Appel,
Buckley, Causey-Mitchell, Colasanti, Dingeldey, Douglas, Galloway. (23)
NAYS: None. (0)
A sufficient majority having voted therefor, the resolution was adopted.
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, G. William Caddell, 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 February 24, 2000 with the original
record thereof now remaining in my office.
Y/;
In Testimony Whereof, I have hereunto set my hand an affixed the seal of the
County of Oakland at Pontiac, Michigan this 2h da of Februay, 2000.
G. William Caddell, County Clerk
Charter Township of Orion
2525 Joslyn • Lake Orion, Michigan 48360 • (248) 391-0304 • Fax (248) 391-9984
. Bastian, Clerk
CHARTER TOWNSHIP OF ORION
2000 GYPSY MOTH SPRAY PROGRAM
RESOLUTION
Resolved: That the Board of Trustees of the Charter Township of Orion, at the regular
meeting of Monday, January 24, 2000, authorized the Township entering into a Joint
Operating Agreement with Oakland County for the 2000 Gypsy Moth Spray Program,
per the terms of the Agreement including Insurance Requirements, and further authorizes
the Township Supervisor and Clerk to sign the Agreement on behalf of the Township.
On a motion by Wilson, seconded by Tomczak, the Board of Trustees voted as follows
on the Resolution:
AYES: Wilson, Marleau, Bastian, Harrison, Dywasuk, Tomczak
NAYS: None
ABSTAIN: None
ABSENT: Cueny
SUPERVISOR - Colette M. Dywasuk CLERK - Jill D. Bastian TREASURER - James Marleau
TRUSTEES Sandra Dyl • Richard L. Tomczak • JoAnn Van Tassel • Eric S. Wilson
CHARTER TOWNSHIP OF ORION
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
This CHARTER TOWNSHIP OF ORION 2000 GYPSY MOTH JOINT OPERATING AGREEMENT
(hereafter "AGREEMENT") is made and entered into between the CHARTER TOWNSHIP OF ORION, a
Michigan Constitutional and Municipal Corporation whose address is 2525 Joslyn Road, Lake Orion,
Michigan 48360 (hereafter the "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan
Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan
48341 (hereafter the "COUNTY"). In this AGREEMENT, the COUNTY and/or the MUNICIPALITY may also
be referred to as a "PARTY" or the "PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree filled
landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program to
help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY, through this AGREEMENT, provides LOCAL UNITS, an opportunity to join this County-wide
program and realize economies of scale, and cost savings, that they could not achieve independently. This
JOINT OPERATING AGREEMENT is entitled the 2000 Oakland County Gypsy Moth Suppression Program
(hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with an MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor in an attempt to minimize MUNICIPALITY tree damage.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached, incorporated,
and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT", "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS",and "2000 PROGRAM" as defined above, the following are also
defined terms in this AGREEMENT:
a. "AGENT" or "AGENTS", when referred to as either an AGENT or AGENTS of the COUNTY
(e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall be defined
to include any and all of that PARTY'S officers, elected officials, appointed officials, directors, board
members, council members, authorities, boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons' successors
or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in
their personal, representative, or official capacities), and/or any and all persons acting by, through,
under, or in concert with any of them. "AGENT" shall also include any person who was an AGENT
any time during this AGREEMENT but for any reason is no longer employed, appointed, or elected
in that capacity. "AGENT", as defined for any purpose in this AGREEMENT, shall NOT include the
PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to coordinate
and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under this
AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief or
damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct, indirect
or consequential, whether based upon any alleged violation of the constitution (federal or state), any
statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise,
and/or whether commenced or threatened and arising out of any alleged breach of any duty by the
MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this AGREEMENT or
are based on or result in any way from the MUNICIPALITY'S participation in the 2000PROGRAM or
this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and licensed in the State of Michigan. The PESTICIDE APPLICATOR shall
be responsible for the AERIAL SPRAYING, as defined herein, and as defined herein the
PESTICIDE APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers,
boards, directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all persons
acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for under
this AGREEMENT.
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to COUNTY approval, and the required property
owner and/or resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The
MUNICIPALITY SPRAY BLOCKS are specifically identified and described in Attachment "A".
9. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined as
any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in connection
with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be determined by
multiplying the total number of acres contained in all MUNICIPALITY SPRAY BLOCKS times the
"AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre
under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL
UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE SPRAY COST/ACRE shall
be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE
APPLICATOR in connection with all 2000 PROGRAM AERIAL SPRAYING (in all participating
LOCAL UNITS, including the MUNICIPALITY) by the total number of acres within the County of
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR in connection with the
2000 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL
SPRAYING by the PESTICIDE APPLICATOR shall be determined by the established pesticide-flow
rates and spray and volume measures taken on any SPRAY DAY(S). The determination of the total
number of acres within the County of Oakland treated by AERIAL SPRAYING by the PESTICIDE
APPLICATOR shall be final. The COUNTY anticipates that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will be less than $32.00 per acre. However, until the total 2000 PROGRAM acreage
to be sprayed is known, the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE can only be
estimated. If this cost/acre should exceed $32.00 per acre, the PARTIES may cancel this
AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPRAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE APPLICATOR
is scheduled by the COUNTY and the PESTICIDE APPLICATOR. SPRAY DAY(S), in all
participating LOCAL UNITS, including the MUNICIPALITY, are expected to occur sometime
between MAY 5, 2000 and June 10, 2000, depending upon such factors as the daily caterpillar
development reports, the weather, temperature, wind conditions, and other last-minute variables
upon which any decision to spray or postpone AERIAL SPRAYING must be based. The COUNTY
and the PESTICIDE APPLICATOR, shall decide the commencement and sequence of all AERIAL
SPRAYING and SPRAY DAY(S).
j. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related legal
obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of any
MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as provided
below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws any
MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage from
that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
, when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM, will
be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the AERIAL
SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce, withdraw,
or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may subject the
COUNTY to certain "PENALTIES" under its contract with the PESTICIDE APPLICATOR. Decisions
by the COUNTY, or any governmental authority other than the MUNICIPALITY to exclude or
prohibit AERIAL SPRAYING of any partial or entire MUNICIPALITY SPRAY BLOCK shall not be
considered a decision by the MUNICIPALITY to change, withdraw, or cancel the AERIAL
SPRAYING of any MUNICIPALITY SPRAY BLOCK for the purposes of assessing any PENALTIES.
COUNTY COORDINATION RESPONSIBILITIES
2. The COUNTY will enter into a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR, including the development of the required Request for Quotation ("RFQ"),
solicitation and review of all bids, and the final selection and contracting with a qualified PESTICIDE
APPLICATOR to conduct the AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the
2000 PROGRAM. The pesticide applicator contract shall include the following insurance requirements.
INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or
any potential subcontractors:
a. Worker's Compensation Coverage as required by Michigan statute.
Coverage B, Employer's Liability, in the minimum amount of $500,000.00
per coverage.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
a •
b. If you are a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Comprehensive General Liability Coverage in the minimum amount of
$2,500,000.00 combined single limit and $5,000,000.00 aggregate
coverage covering the following exposures:
premise operation
personal injury
products and completed operations
iv. contractual liability - specifically addressing this contract.
c. If you are not a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Your aircraft liability coverage endorsed to cover premises liability in the
minimum amount of $2,500,000.00 combined single limit per occurrence.
d. Auto Fleet Liability in the minimum amount of $500,000.00 per occurrence
and providing coverage for fuel tenders, if applicable, and coverage for
Michigan No-Fault.
e. Aircraft Liability Coverage in the minimum amount of $2,500,000.00
combined single limit per occurrence and $5,000,000.00 in the aggregate
and must specifically contemplate coverage for aerial spraying. In
addition, coverage for Chemical Drift must be provided with the following
limits:
i. $100,000.00 per person
ii. $300,000.00 per accident (no aggregate)
iii. $100,000.00 per accident property damage
iv. $100,000.00 property damage aggregate.
v. Coverage must include damage to property being treated and the
residential exclusion must be removed. This shall be endorsed to
cover target application.
vi. You also must provide an "Additional Interest Endorsement"
issued naming the County of Oakland and each of the following
local governmental entities (hereafter individually "Municipality" or
collectively "Municipalities") located within the County of Oakland
which will be participating in any resulting Contract with any bidder
as there are going to be Spray Blocks located within these
Municipalities and the County will be contracting with each of the
following Municipalities for participation in this Program.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
I n
Charter Township of Highland, Charter Township of Orion,
Township of Rose, Charter Township of Springfield, Charter
Township of White Lake, and City of Rochester Hills.
vii. The "Additional Interest Endorsement" required in the Aircraft
Liability Insurance for the County and each of the Municipalities
shall also include any and all of the County's and each
Municipality's elected officials, appointed officials, officers,
employees, volunteers, boards, commissions, councils, and
committees.
f. The County shall receive the appropriate certificates of insurance
providing evidence of the above coverage(s) prior to work being
performed and which shall provide a minimum of 30 days notice to the
County of any cancellation or material change in coverage(s). All
Certificates of Insurance, and/or duplicate policies from CONTRACTOR
shall contain the following clauses:
"The insurance CONTRACTOR(s) issuing the policy or policies
shall have no recourse against COUNTY for payment of any
premiums or for assessments under and form of policy."
ii. "Any and all deductibles in the above described insurance policies
shall be assumed by and be for the account of, and at the sole risk
of, the CONTRACTOR."
iii. "There will be no additional exclusions running to the additional
insured based upon any actions or activities of the named
insured."
All required insurance will be carried with insurance companies
authorized to do business in the State of Michigan.
h. The CONTRACTOR agrees that the COUNTY shall be legally subrogated
to any rights to recover and/or benefits the CONTRACTOR may have in
any insurance policy and to the full extent of any payment under any
insurance policy is required to make the COUNTY whole for any loss and,
and the CONTRACTOR shall cooperate, and perform any act necessary
to secure such rights on behalf of the COUNTY.
i. The CONTRACTOR agrees that should it fail to satisfy any insurance
obligation as described in Addendum A, the COUNTY, at its sole
discretion, shall have the right to cancel any Contract with the bidder or
Contractor.
Under no circumstances, shall the County have any liability or responsibility for the purchase,
transportation, storage, disposal, or security of any insecticide. In the event of any an order to
cease aerial spraying activities, the County shall not be required to purchase, receive, or be
responsible for any unused insecticide from the Contractor.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
g.
3. The COUNTY shall act as the fiscal agent for the MUNICIPALITY, subject to the terms of this
AGREEMENT, with regard to the financing and initial payment to the PESTICIDE APPLICATOR for all
MUNICIPALITY SPRAY COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all
MUNICIPALITY SPRAY COSTS shall always remain the eventual, final, and exclusive financial
responsibility of the MUNICIPALITY.
4. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT.
5. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2000
PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information to
assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000 PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program options,
the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth infestation to be
available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information to assist the
MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY SPRAY
BLOCKS under the 2000 PROGRAM.
d. Provide the MUNICIPALITY with all necessary operational forms so the MUNICIPALITY
can thoroughly understand the program requirements of this AGREEMENT. The COUNTY shall
also provide procedures and/or operating instructions related to MUNICIPALITY SPRAY BLOCK
marking requirements so that the MUNICIPALITY can appropriately train and assign
MUNICIPALITY AGENTS to perform these obligations.
6. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media. The
COUNTY will provide information and answer questions from the public, community and citizen groups,
LOCAL UNITS, and the media about the Gypsy Moth infestation and AERIAL SPRAYING treatment under
the 2000 PROGRAM.
7. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for
future treatment planning and programs.
8. The COUNTY shall conduct the post treatment evaluation and survey of a random sample of
treated MUNICIPALITY SPRAY BLOCKS and property owners from the treated MUNICIPALITY SPRAY
BLOCKS, using a questionnaire and survey tools to determine the percentage of foliar preservation.
9. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to capture
trends for future program planning.
10. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are necessary
to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL SPRAYING of
all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
11. The MUNICIPALITY warrants that only those such blocks that have been surveyed for egg mass
density, which in the judgment of the MUNICIPALITY meet the eligibility criteria and are located entirely
within the MUNICIPALITY are included in the MUNICIPALITY SPRAY BLOCKS which are further described
in Attachment "A".
12. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet its criteria for inclusion, or which cannot be safely or
effectively treated by AERIAL SPRAYING as decided by the PESTICIDE APPLICATOR.
13. After COUNTY approval of MUNICIPALITY SPRAY BLOCKS, the permission and approval of all
residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS shall also be
sought. The COUNTY shall notify all property owners in the MUNICIPALITY SPRAY BLOCKS at least 30
days before the projected SPRAY DAY(S) of the planned AERIAL SPRAYING. For these purposes, the
MUNICIPALITY agrees to provide, in such quantities as requested, MUNICIPALITY resident and/or property
owner mailing lists, mailing labels, and any other identifying information necessary to facilitate
communications between the COUNTY COORDINATOR and any resident and/or property owner in any
MUNICIPALITY SPRAY BLOCK.
14. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call or
objection with the individual's name, address, telephone number and parcel number. The MUNICIPALITY
shall promptly forward copies of any entries into such written logs and records to the COUNTY
COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be scheduled for
AERIAL SPRAYING after the objection of the resident or property owner has been received. The COUNTY
COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure that the 2000 PROGRAM is
completely understood and verify that the property owner does not wish their property to be included in the
AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any property owner's exclusions
from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust
MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
15. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or between
any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S) the
MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes to
the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report any
additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be mapped
by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING. Maps
shall be accompanied by a written summary that identifies for each proposed MUNICIPALITY SPRAY
BLOCK the number of homes and the number of acres to be sprayed within each MUNICIPALITY SPRAY
BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY
BLOCKS for public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
16. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The MUNICIPALITY
agrees to make the necessary staffing and planning arrangements and adjust, as necessary, any
MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday SPRAY DAY(S)), to
meet its SPRAY DAY(S) obligations on such short notice.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
17. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall be responsible for assuring that all non-spray areas are adequately marked off with balloons so that
the pilot conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY BLOCKS
from adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt removal of all
balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY DAY(S)
operations have been completed.
18. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone for
communicating with the COUNTY COORDINATOR. Except for marking balloon related supplies (e.g.,
balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for providing all
MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK maps,
transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole judgment,
deems are required or beneficial for the completion of any MUNICIPALITY responsibilities under this
AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
19. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all federal,
state, and local laws, ordinances, regulations, and agency requirements in any manner affecting the work or
performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and assist in securing
all necessary certificates and permits from such public authorities as may be required for AERIAL
SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations for safety
precautions under the exclusive control and supervision of any other governmental agency or entity. The
MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary for the
protection of persons and property which may be affected by AERIAL SPRAYING, and will notify the
COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any potentially
dangerous situation. In case of an emergency affecting the safety of any persons or property, the
MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by attempting
to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
20. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON".
The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2000
PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
21. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified MUNICIPALITY
AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this AGREEMENT. The
MUNICIPALITY AGENTS shall be employed and assigned based on appropriate qualifications and other
factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it shall be solely responsible for
furnishing all MUNICIPALITY AGENTS with all job instructions, job descriptions and job specifications and
shall otherwise control, supervise, train or direct MUNICIPALITY AGENTS in the performance of any
MUNICIPALITY duties or obligations under this AGREEMENT. The MUNICIPALITY agrees that the
COUNTY shall have no liability or obligation in this regard.
22. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
...1 •
23. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall be
considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees that
it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or future
wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or
any other statutory or contractual right or benefit based on or in any way related to any MUNICIPALITY
AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S statutory,
contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY AGENT.
The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any and all
CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any COUNTY AGENT
by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise from, or are in any way
related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other employment-related or
based rights, including, but not limited to, those described in this Paragraph.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
24. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
25. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide any
financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset any
MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2000
PROGRAM except as expressly provided for in this AGREEMENT. The MUNICIPALITY agrees that any
and all such MUNICIPALITY SPRAY COSTS and any PENALTIES, shall at all times remain the sole
financial responsibility of the MUNICIPALITY.
26. The MUNICIPALITY agrees that any amount due and owing to the COUNTY under this AGREEMENT,
which is still unpaid at the time the COUNTY distributes funds to the MUNICIPALITY from the Delinquent
Tax Revolving Fund (DTRF), the COUNTY shall be entitled to reduce, set-off, and permanently retain any
amount due to the MUNICIPALITY from Delinquent Tax Revolving Fund (DTRF) by any such amount then
still due and owing the COUNTY pursuant to this AGREEMENT.
COUNTY INVOICES TO MUNICIPALITY
28. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY COSTS. The MUNICIPALITY agrees to
pay the full amount shown on or before May 1, 2000, or no later than 15 days after the invoice date,
whichever date is later.
MUNICIPALITY RECORD KEEPING
29. The MUNICIPALITY shall complete all documents as required and cooperate with the COUNTY in
supplying all necessary or required information to the COUNTY on a timely basis.
MUNICIPALITY PROVIDED INSURANCE
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
30. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under this
AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any MUNICIPALITY
AGENT, or by anyone for whose acts any of them may be liable.
a. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have insurance
or participate in a mandatory state fund to cover the benefits payable to any MUNICIPALITY
AGENT.
b. Liabilities for damages because of bodily injury, occupational sickness or disease, or death
of his employees.
c. Liabilities for damages because of bodily injury, sickness or disease, or death of any person
other than any MUNICIPALITY AGENT, subject to limits of liability of not less than $300,000 each
occurrence and, when applicable $300,000 annual aggregate, for non-automobile hazards and as
required by law for automobile hazards.
d. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each occurrence
for non-automobile hazards and as required by law for automobile hazards.
e. Insurance for the preceding two (2) subparagraphs non-automobile hazards on a combined
single limit of liability basis shall not be less than $300,000 each occurrence and when applicable,
$300,000 annual aggregate. The insurance shall be written for not less than any limits of liability
herein specified or required by law, whichever is greater, and shall include contractual liability
insurance as applicable to the MUNICIPALITY'S obligations under the indemnification provisions of
this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
31. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by the
MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
32. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
DISCLAIMER OF ANY COUNTY WARRANTY
33. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and enter
this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to participate. In
making this decision, the MUNICIPALITY has relied entirely upon its own investigation, and/or has had
ample opportunity to conduct such an investigation, of all material facts, applicable laws, and all such other
circumstances that might influence upon the MUNICIPALITY'S decision to enter this AGREEMENT.
34. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING component
of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to any tree by
Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy Moths, or that
the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or effective, or the
safest and most effective means of suppressing the Gypsy Moth infestation, or any other performance-
based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of
the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING for the delivery of
insecticide, the choice of insecticide, the insecticide application rates, the timing of such applications, etc.,
have been established under the terms of this AGREEMENT in which the MUNICIPALITY has voluntarily
consented to participate and assume all risks described and outlined in this AGREEMENT.
LIMITATION OF LIABILITY
35. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either PARTY
or any third person, whether in an action in contract or tort, whether or not the other PARTY has been
advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder shall in no
event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the COUNTY.
This AGREEMENT is intended to allocate the risks between the COUNTY and the MUNICIPALITY, and the
PARTIES agree that the allocation of each PARTY'S efforts, costs, and obligations under this AGREEMENT
reflect this allocation of risk and the limitations of liability specified herein.
36. The COUNTY was limited in the selection and contract terms with the PESTICIDE APPLICATOR.
The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or liability against the COUNTY for any
material defects, errors, mistakes, negligence, or omissions in the PESTICIDE APPLICATOR RFQ, the bid
specifications, the bid procedure, the bid award process, the PESTICIDE APPLICATOR contract negotiation
process, the preparation or execution of the PESTICIDE APPLICATOR contract, or any other errors or
mistakes of fact by the COUNTY in the selection of the PESTICIDE APPLICATOR. The MUNICIPALITY
agrees that at all times and for all purposes under this AGREEMENT the PESTICIDE APPLICATOR
relationship to the COUNTY shall be that of an INDEPENDENT CONTRACTOR and not a COUNTY
AGENT as defined herein. The MUNICIPALITY hereby agrees to waive any CLAIM(S) or liability against
the COUNTY based in any manner upon any act or omission of the PESTICIDE APPLICATOR.
CANCELLATION
37. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
38. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
39. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM acreage
for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will exceed $32.00 per acre, the COUNTY shall notify the MUNICIPALITY in writing of the
then anticipated cost. The MUNICIPALITY, within five days after the receipt of such notice, but in no event
after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by a written notice to the
COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher than anticipated
costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the MUNICIPALITY paid to the
COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is obligated, shall be returned to
the MUNICIPALITY. The COUNTY may also unilaterally cancel this AGREEMENT should it appear that the
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
A
AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed $32.00 and shall have no further obligation
to the MUNICIPALITY under this AGREEMENT.
2000 PROGRAM CHANGES
40. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to cancel
this AGREEMENT or otherwise change the total number acres or the configuration of any MUNICIPALITY
SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the COUNTY incurring any
PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated to pay to the COUNTY the
full amount of any and all PENALTIES incurred by the COUNTY. The MUNICIPALITY agrees that any
amount due and owing to the COUNTY as PENALTIES shall be above and beyond any other amounts
otherwise due and owing to the COUNTY under this AGREEMENT. The MUNICIPALITY shall not be
permitted to add, delete, substitute or change the configuration of any MUNICIPALITY SPRAY BLOCKS as
shown on Attachment "A" without the written approval of the COUNTY.
FORCE MAJEURE
41. The COUNTY shall not be liable to the MUNICIPALITY or any person for failure or delay in
performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or delay is
caused by circumstances beyond the control of the COUNTY, including, without limitation, failures resulting
from weather delays, premature or delayed development of the Gypsy Moth caterpillars, high winds, unsafe
flying conditions, circumstances that make the effectiveness of AERIAL SPRAYING to suppress the
infestation less than optimal, accidents, labor stoppages, war, any default by the PESTICIDE APPLICATOR,
the inability to secure necessary materials or labor, governmental acts or regulations, acts of God, or other
causes beyond the COUNTY'S control, whether or not similar to those above. The COUNTY agrees that, in
any such event, the COUNTY shall communicate that fact to the MUNICIPALITY when such fact(s)
becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
42. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance coverage(s),
waivers of liability, liabilities, audit requirements, record-keeping requirements, any MUNICIPALITY payment
obligations to the COUNTY, 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 before the cancellation or completion of this AGREEMENT, shall
survive the cancellation or completion of this AGREEMENT. The expiration, cancellation, or termination of
this AGREEMENT shall be without prejudice to any rights or claims of either PARTY against the other and
shall not relieve either PARTY of any obligations which, by their nature, survive expiration or termination of
this AGREEMENT.
2000 PROGRAM COMPLETION
43. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be suppressed
by AERIAL SPRAYING,gr: when 60% or more of the forest canopy has already been defoliated as
determined by the COUNTY.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
44. The PARTIES reserve to themselves any rights and obligations related to the provision of any and
all of each PARTY'S respective governmental services, authority, responsibilities, and obligations. Except
as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to, create,
diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other
legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity,
or authority of either the MUNICIPALITY or the COUNTY to any other person or PARTY.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
45. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties under
this AGREEMENT to any other person and/or public or private corporation, entity, or organizations of any
kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
46. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the
COUNTY Board of Commissioners and the governing Township Board of the MUNICIPALITY. The
approval and terms of this AGREEMENT shall be entered in the official minutes and proceedings of the
COUNTY Board of Commissioners and governing Township Board of the MUNICIPALITY and shall also be
filed with the office of the Clerk for the COUNTY and the MUNICIPALITY. In addition, this AGREEMENT,
and any subsequent amendments, shall be filed with the Secretary of State for the State of Michigan by the
COUNTY and shall not become effective or implemented prior to its filing with the Secretary of State.
47. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing Township Board of the
MUNICIPALITY. This AGREEMENT shall not be changed, supplemented, or amended except as provided
for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend
or modify this AGREEMENT.
AUDIT AND RECORD ACCESS
48. The COUNTY shall have the right to audit the MUNICIPALITY from time to time, after reasonable
written notice of its intended audit, in order to assess the MUNICIPALITY'S compliance with the terms of
this AGREEMENT and to determine whether the MUNICIPALITY is following generally accepted accounting
standards.
49. The COUNTY shall have the right to initiate any audit for a period of three (3) years after the
expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be concluded or
otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
SUCCESSORS AND ASSIGNS BOUND
50. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of them.
NO THIRD-PARTY BENEFIT
51. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to be
subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of any
person, including, but not limited to, any MUNICIPALITY resident, any legal representative, any
organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
52. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
NOTICES
53. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or 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.
CHOICE OF LAW
54. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the context
so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
55. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
56. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
57. This AGREEMENT, consisting of a total of seventeen (17) pages, including the two pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete and
entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all prior
agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further 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 MUNICIPALITY and the COUNTY
in any way related to the subject matter hereof, except as expressly stated herein.
58. For and in consideration of the mutual promises, acknowledgments, and representations set forth in
this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
4
BY: BY:
DATE: DATE: ID, 66
a
IN WITNESS WHEREOF, L. BROOKS PATTERSON,
County Executive of the COUNTY OF OAKLAND,
hereby acknowledges that he has been authorized by
a resolution of the Oakland County Board of
Commissioners, a certified copy of which is attached,
to execute this AGREEMENT on behalf of the
COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
BY:
L. BR9OKS PATTERSON,
County( Executive
WITNESSED:
IN WITNESS WHEREOF, COLETTE M. DYWASUK,
Supervisor of the CHARTER TOWNSHIP OF ORION,
hereby acknowledges that she has been authorized
by a resolution of the Township Board of ORION, a
certified copy of which is attached, to execute this
AGREEMENT on behalf of the MUNICIPALITY, and
hereby accepts and binds the MUNICIPALITY to the
terms and conditi ns of this AGREEMENT on this
Zitday of , 2000.
CHARTER TOWNSHIP OF ORION:
a Michigan Constitutional and Municipal Corporation
BY:
COLETTE M. DYWASUK,
Supervisor
p. BASTIAN,
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
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JOINT OPERATING AGREEMENT -2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - ATTACHMENT "A"
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CHARTER TOWNSHIP OF HIGHLAND
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
This CHARTER TOWNSHIP OF HIGHLAND MUNICIPALITY PARTICIPATION AGREEMENT-2000
OAKLAND COUNTY GYPSY MOTH PROGRAM (hereafter "AGREEMENT') is made and entered into
between the CHARTER TOWNSHIP OF HIGHLAND, a Michigan Constitutional and Municipal Corporation
whose address is 205 N. John St., 44Arliiew249,Highland, Michigan 483574040--(hereafter the
"MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan Constitutional and Municipal Corporation,
whose address is 1200 North Telegraph Road, Pontiac, Michigan 48341 (hereafter the "COUNTY"). In this
AGREEMENT, the COUNTY and/or the MUNICIPALITY may also be referred to as a "PARTY" or the
"PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree filled
landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program to
help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY has chosen to assist qualifying LOCAL UNITS by participating in a statewide treatment
program developed by the Michigan Department of Agriculture (hereafter "MDA"). The MDA program offers
the expertise and experience of the MDA in suppressing the Gypsy Moth infestation plus the possibility of
federal and/or state cost sharing for program expenses through a Michigan Department of Agriculture grant
entitled the Michigan Gypsy Moth Cooperative Suppression Program,2000 Grant Application (hereafter the
"MDA GRANT").
The COUNTY, through this AGREEMENT, provides LOCAL UNITS eligible to participate under the MDA
GRANT, including the MUNICIPALITY, an opportunity to join this County-wide program and realize
economies of scale, cost savings, and possible cost sharing through the MDA GRANT that the
MUNICIPALITY could not achieve independently. This cooperative COUNTY program is entitled the2000
Oakland County Gypsy Moth Suooression Program (hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with a MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor at the MDA determined point in the Gypsy Moth life cycle in
an attempt to minimize MUNICIPALITY tree damage.
The aerial insecticide application and timing aspects for the suppression of the Gypsy Moth in the 2000
PROGRAM are subject to the terms of the MDA GRANT, whereas the MUNICIPALITY'S participation in the
2000 PROGRAM is subordinate to the MDA GRANT terms and subject to this AGREEMENT.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached, incorporated,
and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT", "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS", "MDA", "MDA GRANT" and "2000 PROGRAM" as defined above,
the following are also defined terms in this AGREEMENT:
a. "AGENT" or "AGENTS", when referred to as either an AGENT or AGENTS of the COUNTY
(e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall be defined
to include any and all of that PARTY'S officers, elected officials, appointed officials, directors, board
members, council members, authorities, boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons' successors
or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in
their personal, representative, or official capacities), and/or any and all persons acting by, through,
under, or in concert with any of them. "AGENT" shall also include any person who was an AGENT
any time during this AGREEMENT but for any reason is no longer employed, appointed, or elected
in that capacity. "AGENT", as defined for any purpose in this AGREEMENT, shall NOT include the
PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to coordinate
and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under this
AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief or
damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct, indirect
or consequential, whether based upon any alleged violation of the constitution (federal or state), any
statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise,
and/or whether commenced or threatened and arising out of any alleged breach of any duty by the
MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this AGREEMENT or
are based on or result in any way from the MUNICIPALITY'S participation in the 2000 PROGRAM
or this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and approved by the MDA, selected through an MDA prescribed bidding
process from the MDA list of qualified and approved agricultural aerial pesticide spray contractors
who met the MDA GRANT selection criteria. The PESTICIDE APPLICATOR shall be responsible
for the AERIAL SPRAYING, as defined herein, and as defined herein the PESTICIDE
APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers, boards,
directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all persons
acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for under
the MDA GRANT and/or this AGREEMENT.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
n
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to MDA and COUNTY approval, MDA GRANT
priority and eligibility requirements for REIMBURSEMENT, and the required property owner and/or
resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The MUNICIPALITY
SPRAY BLOCKS are specifically identified and described in Attachment "A".
g. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined as
any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in connection
with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be determined by
multiplying the total number of acres contained in all MUNICIPALITY SPRAY BLOCKS times the
"AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre
under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL
UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE SPRAY COST/ACRE shall
be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE
APPLICATOR in connection with all 2000 PROGRAM AERIAL SPRAYING (in all participating
LOCAL UNITS, including the MUNICIPALITY) by the total number of acres within the County of
Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR in connection with the
2000 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL
SPRAYING by the PESTICIDE APPLICATOR shall be determined by the MDA based upon MDA
established pesticide-flow rates and spray and volume measures taken on any SPRAY DAY(S).
The MDA determination of the total number of acres within the County of Oakland treated by
AERIAL SPRAYING by the PESTICIDE APPLICATOR shall be final. The COUNTY anticipates that
the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will be less than $32.00 per acre. However,
until the total 2000 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTY-WIDE
SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $32.00 per acre, the
PARTIES may cancel this AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE APPLICATOR
is scheduled by the COUNTY, the MDA, and the PESTICIDE APPLICATOR. SPRAY DAY(S), in all
participating LOCAL UNITS, including the MUNICIPALITY, are expected to occur sometime
between MAY 5, 2000 and June 10, 2000, depending upon such factors as the daily caterpillar
development reports, the weather, temperature, wind conditions, and other last-minute variables
upon which any decision to spray or postpone AERIAL SPRAYING must be based. The COUNTY,
with the MDA and the PESTICIDE APPLICATOR, shall decide the commencement and sequence
of all AERIAL SPRAYING and SPRAY DAY(S).
j. "ADMINISTRATIVE COSTS" shall be defined as any and all 2000 PROGRAM costs,
expenses, wages, salaries, fringe benefit costs, equipment, supplies, administrative overhead,
building costs, or any costs and expenses that are incurred and/or paid either by the COUNTY, on
or after October 1, 1999, but before September 30, 2000, (i.e., COUNTY ADMINISTRATIVE
COSTS) or by the MUNICIPALITY on or after October 1, 1999, but before June 30, 2000, (i.e.,
MUNICIPALITY ADMINISTRATIVE COSTS) in connection with the 2000 PROGRAM.
ADMINISTRATIVE COSTS and MUNICIPALITY SPRAY COSTS are mutually exclusive cost
categories. All claimed ADMINISTRATIVE COSTS must have been incurred exclusively for and in
connection with the 2000 PROGRAM. No additional ADMINISTRATIVE COSTS shall be allowed
after the 2000 PROGRAM is ended. "ADMINISTRATIVE COSTS" may be further defined and
limited to "MDA APPROVED ADMINISTRATIVE COSTS".
k. "MDA APPROVED ADMINISTRATIVE COSTS" shall be defined as any and all
ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM by either PARTY
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
which have been approved by the MDA as eligible for possible REIMBURSEMENT under the terms
of the MDA GRANT. The MDA shall solely decide which, if any, ADMINISTRATIVE COSTS
submitted by the COUNTY or the MUNICIPALITY in connection with the 2000 PROGRAM shall be
approved and eligible for REIMBURSEMENT under established MDA GRANT criteria and in what
amount, if any, REIMBURSEMENT shall be paid to the COUNTY.
"REIMBURSEMENT" shall be defined as any MDA GRANT funds received by the
COUNTY because of the COUNTY'S submission of any MUNICIPALITY SPRAY COST, or any
COUNTY or MUNICIPALITY ADMINISTRATIVE COSTS to the MDA which were specifically paid to
the COUNTY and attributable to any specific MUNICIPALITY SPRAY COST or any COUNTY or
MUNICIPALITY ADMINISTRATIVE COSTS. The MDA shall not reimburse the PESTICIDE
APPLICATOR or the MUNICIPALITY directly and all REIMBURSEMENT shall be paid only to the
COUNTY. The MUNICIPALITY agrees that the MDA shall solely decide: the extent, and amount, if
any, of any possible REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or
MUNICIPALITY ADMINISTRATIVE COSTS. The MUNICIPALITY agrees that the MDA GRANT
establishes criteria for MUNICIPALITY REIMBURSEMENT and that not every MUNICIPALITY
SPRAY COST and/or MUNICIPALITY ADMINISTRATIVE COSTS incurred shall be eligible for MDA
approval or REIMBURSEMENT or receive a uniform rate of REIMBURSEMENT. The COUNTY
shall have no obligation to represent, challenge, contest, appeal, or argue for any
REIMBURSEMENT on behalf of the MUNICIPALITY with the MDA.
m. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related legal
obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of any
MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as provided
below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws any
MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage from
that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
, when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM, will
be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the AERIAL
SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce, withdraw,
or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may subject the
COUNTY to certain "PENALTIES" under its contract with the PESTICIDE APPLICATOR. Decisions
by the MDA, the COUNTY, or any governmental authority other than the MUNICIPALITY to exclude
or prohibit AERIAL SPRAYING of any partial or entire MUNICIPALITY SPRAY BLOCK shall not be
considered a decision by the MUNICIPALITY to change, withdraw, or cancel the AERIAL
SPRAYING of any MUNICIPALITY SPRAY BLOCK for the purposes of assessing any PENALTIES.
COUNTY MDA GRANT COORDINATION RESPONSIBILITIES
2. The COUNTY will apply for, attempt to qualify for, and secure possible MDA GRANT
REIMBURSEMENT to reduce the total 2000 PROGRAM costs. The COUNTY, with the cooperation of the
MUNICIPALITY and subject to this AGREEMENT, will undertake all reasonable and necessary
administrative steps required by the Grantee under the MDA GRANT.
3. The COUNTY will enter a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR according to the MDA GRANT required purchasing requirements, including the
development of the required Request for Quotation ("RFQ"), solicitation and review of all bids, and the final
selection and contracting with an MDA approved and qualified PESTICIDE APPLICATOR to conduct the
AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the 2000 PROGRAM. The
pesticide applicator contract shall include the following insurance requirements.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or
any potential subcontractors:
a. Worker's Compensation Coverage as required by Michigan statute.
Coverage B, Employer's Liability, in the minimum amount of $500,000.00
per coverage.
b. If you are a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Comprehensive General Liability Coverage in the minimum amount of
$2,500,000.00 combined single limit and $5,000,000.00 aggregate
coverage covering the following exposures:
premise operation
personal injury
products and completed operations
iv. contractual liability - specifically addressing this contract.
c. If you are not a Fixed Base Operator (F.B.0.), you must provide the
following coverage(s):
Your aircraft liability coverage endorsed to cover premises liability in the
minimum amount of $2,500,000.00 combined single limit per occurrence.
d. Auto Fleet Liability in the minimum amount of $500,000.00 per occurrence
and providing coverage for fuel tenders, if applicable, and coverage for
Michigan No-Fault.
e. Aircraft Liability Coverage in the minimum amount of $2,500,000.00
combined single limit per occurrence and $5,000,000.00 in the aggregate
and must specifically contemplate coverage for aerial spraying. In addition,
coverage for Chemical Drift must be provided with the following limits:
$100,000.00 per person
ii. $300,000.00 per accident (no aggregate)
iii. $100,000.00 per accident property damage
iv. $100,000.00 property damage aggregate.
v. Coverage must include damage to property being treated and the
residential exclusion must be removed. This shall be endorsed to
cover target application.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
i
g.
vi. You also must provide an "Additional Interest Endorsement" issued
naming the County of Oakland and each of the following local
governmental entities (hereafter individually "Municipality" or
collectively "Municipalities") located within the County of Oakland
which will be participating in any resulting Contract with any bidder
as there are going to be Spray Blocks located within these
Municipalities and the County will be contracting with each of the
following Municipalities for participation in this Program.
Charter Township of Highland, Charter Township of Orion,
Township of Rose, Charter Township of Springfield, Charter
Township of White Lake, and City of Rochester Hills.
vii. The "Additional Interest Endorsement" required in the Aircraft
Liability Insurance for the County and each of the Municipalities
shall also include any and all of the County's and each
Municipality's elected officials, appointed officials, officers,
employees, volunteers, boards, commissions, councils, and
committees.
f. The County shall receive the appropriate certificates of insurance providing
evidence of the above coverage(s) prior to work being performed and
which shall provide a minimum of 30 days notice to the County of any
cancellation or material change in coverage(s). All Certificates of
Insurance, and/or duplicate policies from CONTRACTOR shall contain the
following clauses:
i. "The insurance CONTRACTOR(s) issuing the policy or policies
shall have no recourse against COUNTY for payment of any
premiums or for assessments under and form of policy."
ii. "Any and all deductibles in the above described insurance policies
shall be assumed by and be for the account of, and at the sole risk
of, the CONTRACTOR."
iii. "There will be no additional exclusions running to the additional
insured based upon any actions or activities of the named insured."
All required insurance will be carried with insurance companies authorized
to do business in the State of Michigan.
h. The CONTRACTOR agrees that the COUNTY shall be legally subrogated
to any rights to recover and/or benefits the CONTRACTOR may have in
any insurance policy and to the full extent of any payment under any
insurance policy is required to make the COUNTY whole for any loss and,
and the CONTRACTOR shall cooperate, and perform any act necessary to
secure such rights on behalf of the COUNTY.
i. The CONTRACTOR agrees that should it fail to satisfy any insurance
obligation as described in Addendum A, the COUNTY, at its sole
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
discretion, shall have the right to cancel any Contract with the bidder or
Contractor.
Under no circumstances, shall the County have any liability or responsibility for the purchase,
transportation, storage, disposal, or security of any insecticide. In the event of any an order to
cease aerial spraying activities, the County shall not be required to purchase, receive, or be
responsible for any unused insecticide from the Contractor.
4. The COUNTY shall be the sole Grantee under the MDA GRANT and shall act as the MDA GRANT
coordinator and fiscal agent for the MUNICIPALITY, subject to the terms of this AGREEMENT, with regard
to the financing and initial payment to the PESTICIDE APPLICATOR for all MUNICIPALITY SPRAY
COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all MUNICIPALITY SPRAY
COSTS shall always remain the eventual, final, and exclusive financial responsibility of the MUNICIPALITY.
5. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT and the MDA GRANT.
6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2000
PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information to
assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000 PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program options,
the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth infestation to be
available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information from the MDA to assist
the MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY SPRAY
BLOCKS under the 2000 PROGRAM and for possible REIMBURSEMENT under the MDA GRANT.
d. Provide the MUNICIPALITY with all necessary operational forms and MDA GRANT
documents so the MUNICIPALITY can thoroughly understand the MDA GRANT requirements and
REIMBURSEMENT limitations under the MDA GRANT and/or this AGREEMENT. The COUNTY
shall also provide any MDA GRANT procedures and/or operating instructions related to
MUNICIPALITY SPRAY BLOCK, marking requirements so that the MUNICIPALITY can
appropriately train and assign MUNICIPALITY AGENTS to perform these obligations.
7. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media as
required by the MDA GRANT. The COUNTY will provide information and answer questions from the public,
community and citizen groups, LOCAL UNITS, and the media about the Gypsy Moth infestation and
AERIAL SPRAYING treatment under the 2000 PROGRAM.
8. The COUNTY, as required by the MDA GRANT, shall also hold a County-wide public meeting or an
MDA approved alternative method to solicit citizen concerns regarding the 2000 PROGRAM and provide
technical information. The COUNTY, at this meeting, shall explain the 2000 PROGRAM, the insecticide that
will be used, the MUNICIPALITY SPRAY BLOCK qualifying parameters as required in the Environmental
Impact Statement, and collect information regarding environmentally sensitive areas.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
4
9. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for
future treatment planning and programs.
10. The COUNTY, as required by the MDA GRANT, shall conduct the post treatment evaluation and
survey of a random sample of treated MUNICIPALITY SPRAY BLOCKS and property owners from the
treated MUNICIPALITY SPRAY BLOCKS, using MDA approved questionnaire and survey tools to
determine the percentage of foliar preservation necessary to comply with the MDA GRANT requirements.
11. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to capture
trends for future program planning.
12. The COUNTY will consolidate the MUNICIPALITY SPRAY COSTS with all such costs from all
other participating LOCAL UNITS into the combined MDA GRANT required format and submit same to the
MDA for approval and possible REIMBURSEMENT. The COUNTY will similarly combine all
MUNICIPALITY ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM with all such
costs incurred by other participating LOCAL UNITS and the COUNTY and will submit all such 2000
PROGRAM ADMINISTRATIVE COSTS to the MDA for approval and possible REIMBURSEMENT.
13. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are necessary
to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL SPRAYING of
all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
14. The MUNICIPALITY warrants that only those such blocks that have been: surveyed for egg mass
density as required by the MDA, which in the judgment of the MUNICIPALITY meet MDA GRANT eligibility
criteria and are located entirely within the MUNICIPALITY are included in the MUNICIPALITY SPRAY
BLOCKS which are further described in Attachment "A".
15. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet MDA GRANT criteria for inclusion, do not qualify for
any MDA GRANT REIMBURSEMENT, will burden or jeopardize the COUNTY'S compliance with the MDA
GRANT, or unacceptably obligate the COUNTY to pay for MUNICIPALITY SPRAY COSTS beyond
anticipated MDA GRANT REIMBURSEMENT or which cannot be safely or effectively treated by AERIAL
SPRAYING as decided by the PESTICIDE APPLICATOR. The MUNICIPALITY agrees that,
notwithstanding any provision in this AGREEMENT, the MDA also has the absolute right to reject any
MUNICIPALITY SPRAY BLOCKS and/or deny REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS
or ADMINISTRATIVE COSTS for any rejected MUNICIPALITY SPRAY BLOCKS.
16. After COUNTY and MDA approval of MUNICIPALITY SPRAY BLOCKS, the permission and
approval of all residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS shall
also be sought. The COUNTY shall notify all property owners, as required by the MDA GRANT, in the
MUNICIPALITY SPRAY BLOCKS at least 30 days before the projected SPRAY DAY(S) of the planned
AERIAL SPRAYING. For these purposes, the MUNICIPALITY agrees to provide, in such quantities as
requested, MUNICIPALITY resident and/or property owner mailing lists, mailing labels, and any other
identifying information necessary to facilitate communications between the COUNTY COORDINATOR and
any resident and/or property owner in any MUNICIPALITY SPRAY BLOCK.
17. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call or
objection with the individual's name, address, telephone number and parcel number. The MUNICIPALITY
shall promptly forward copies of any entries into such written logs and records to the COUNTY
COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be scheduled for
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
AERIAL SPRAYING after the objection of the resident or property owner has been received. The COUNTY
COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure that the 2000 PROGRAM is
completely understood and verify that the property owner does not wish their property to be included in the
AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any property owner's exclusions
from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust
MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
18. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or between
any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S) the
MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes to
the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report any
additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be mapped
by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING. Maps
shall be accompanied by a written summary on a form provided by the MDA that identifies for each
proposed MUNICIPALITY SPRAY BLOCK the number of homes, the MDA SPRAY BLOCK priority category
and the number of acres to be sprayed within each MUNICIPALITY SPRAY BLOCK. The MUNICIPALITY
shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
19. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The MUNICIPALITY
agrees to make the necessary staffing and planning arrangements and adjust, as necessary, any
MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday SPRAY DAY(S)), to
meet its SPRAY DAY(S) obligations on such short notice.
20. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall ensure that all MUNICIPALITY SPRAY BLOCKS are adequately and properly marked with the
appropriate helium-filled marker balloons or adequate natural landmarks, as specified in the MDA GRANT or
the PESTICIDE APPLICATOR contract. The MUNICIPALITY shall be responsible for providing enough
MUNICIPALITY AGENTS to place such required marker balloons (hereafter "balloon crews") to adequately
identify MUNICIPALITY SPRAY BLOCKS for AERIAL SPRAYING and otherwise help in related SPRAY
DAY(S) activities as requested. The MUNICIPALITY shall be responsible for assuring that all non-spray
areas are adequately marked off with either off-color balloons or by double balloons so that the pilot
conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY BLOCKS from
adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt removal of all
balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY DAY(S)
operations have been completed.
21. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone or suitable
mobile radios for communicating with the COUNTY COORDINATOR. Except for marking balloon related
supplies (e.g., balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for
providing all MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK
maps, transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole
judgment, deems are required or beneficial for the completion of any MUNICIPALITY responsibilities under
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
this AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
22. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all federal,
state, and local laws, ordinances, regulations, and agency requirements in any manner affecting,the work or
performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and assist in securing
all necessary certificates and permits from such public authorities as may be required for AERIAL
SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations for safety
precautions under the exclusive control and supervision of any other governmental agency or entity. The
MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary for the
protection of persons and property which may be affected by AERIAL SPRAYING, and will notify the
COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any potentially
dangerous situation. In case of an emergency affecting the safety of any persons or property, the
MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by attempting
to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
23. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON".
The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2000
PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
24. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified MUNICIPALITY
AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this AGREEMENT. The
MUNICIPALITY AGENTS shall be employed and assigned based on appropriate qualifications and other
factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it shall be solely responsible for
furnishing all MUNICIPALITY AGENTS with all job instructions, job descriptions and job specifications and
shall otherwise control, supervise, train or direct MUNICIPALITY AGENTS in the performance of any
MUNICIPALITY duties or obligations under this AGREEMENT. The MUNICIPALITY agrees that the
COUNTY shall have no liability or obligation in this regard.
25. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner. The
MUNICIPALITY agrees that neither the MUNICIPALITY nor any MUNICIPALITY AGENT will, in any
manner, interfere or prevent the COUNTY from timely completion of any COUNTY obligations under the
MDA GRANT.
26. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall be
considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees that
it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or future
wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
any other statutory or contractual right or benefit based on or in any way related to any MUNICIPALITY
AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S statutory,
contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY AGENT.
The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any and all
CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any COUNTY AGENT
by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise from, or are in any way
related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other employment-related or
based rights, including, but not limited to, those described in this Paragraph.
MDA GRANT LIMITATIONS ON EMPLOYMENT OF MUNICIPALITY AGENTS
27. The MUNICIPALITY shall insure that no member of the legislature of the State of Michigan or any
individual employed by the State shall be permitted to share in any REIMBURSEMENT or other benefit paid
to or received by the MUNICIPALITY from the MDA GRANT.
28. The MUNICIPALITY shall report to the COUNTY within five (5) days after the end of each month,
that this AGREEMENT is in effect, the names, social security numbers and the amount of payment made to
any former State of Michigan employee who:
a. Retired from the State between June 2, 1984 and September 30, 1984 under the provisions
of Act 2 and 3 of the Public Acts of 1984.
b. Is less than 62 years of age; and
c. Performed services purchased by the State under the provisions of the MDA GRANT
during the month. For any month which the MUNICIPALITY has no employees (as described
above) assigned to work performed under the provisions of this AGREEMENT, no report is
required.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
29. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
30. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide any
financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset any
MUNICIPALITY SPRAY COSTS or MUNICIPALITY ADMINISTRATIVE COSTS in connection with the
MUNICIPALITY'S participation in the 2000 PROGRAM except as expressly provided for in this
AGREEMENT. The MUNICIPALITY agrees that any and all such MUNICIPALITY SPRAY COSTS, and any
PENALTIES shall at all times remain the sole financial responsibility of the MUNICIPALITY.
31. The MUNICIPALITY agrees that its participation in the 2000 PROGRAM and/or any and all of its
obligations under this AGREEMENT, including but not limited to the MUNICIPALITY'S payment obligations
to the COUNTY, are NOT contingent, dependent, and/or in any way conditioned upon the eventual receipt
of any REIMBURSEMENT under the MDA GRANT or from any other financial assistance or support from
outside the MUNICIPALITY. The MUNICIPALITY further agrees that any amount due and owing to the
COUNTY under this AGREEMENT, which is still unpaid at the time the COUNTY distributes funds to the
MUNICIPALITY from the Delinquent Tax Revolving Fund (DTRF), the COUNTY shall be entitled to reduce,
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
set-off, and permanently retain any amount due to the MUNICIPALITY from Delinquent Tax Revolving Fund
(DIRE) by any such amount then still due and owing the COUNTY pursuant to this AGREEMENT.
POSSIBLE MDA GRANT REIMBURSEMENT
33. The MUNICIPALITY shall submit all itemized MUNICIPALITY ADMINISTRATIVE COSTS and
related expenses for the 2000 PROGRAM to the COUNTY COORDINATOR no later than June 30, 2000,
and shall provide written documentation for any such costs as required. Possible MUNICIPALITY
ADMINISTRATIVE COST REIMBURSEMENT is dependent upon properly submitted and documented
expenses. The COUNTY shall not be required to submit any MUNICIPALITY ADMINISTRATIVE COSTS
that are either: incurred or submitted after June 30, 2000, not sufficiently documented, or not readily
transferable to the MDA GRANT required format. The COUNTY shall not to be required to speculate,
compile, or calculate any MUNICIPALITY ADMINISTRATIVE COSTS claimed or the purpose(s) for which
any MUNICIPALITY ADMINISTRATIVE COSTS were incurred by the MUNICIPALITY.
34. Upon receipt of any REIMBURSEMENT the COUNTY will prepare a REIMBURSEMENT summary
of all MUNICIPALITY SPRAY COSTS and MDA APPROVED ADMINISTRATIVE COSTS in connection with
the 2000 PROGRAM and the amount of any such REIMBURSEMENT received attributable to any
MUNICIPALITY SPRAY COST and MUNICIPALITY MDA APPROVED ADMINISTRATIVE COSTS. The
MUNICIPALITY agrees that any MUNICIPALITY benefit or interest in any REIMBURSEMENT received by
the COUNTY under the MDA GRANT or under the terms of this AGREEMENT shall be based solely upon
any MDA approved and paid REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred and paid by the MUNICIPALITY and shall not be based, in
any manner, upon any such costs as may have been incurred, claimed, or submitted by the
MUNICIPALITY.
35. The MUNICIPALITY agrees that any MDA GRANT REIMBURSEMENT for any 2000 PROGRAM
costs incurred by either the MUNICIPALITY or the COUNTY are not certain or guaranteed. The PARTIES
further agree that the failure of the COUNTY to receive or qualify for any MDA GRANT REIMBURSEMENT
shall neither relieve the MUNICIPALITY of any financial obligation to the COUNTY nor create any financial
liability for the COUNTY to reimburse the MUNICIPALITY for any and all MUNICIPALITY cost or expenses
associated with or resulting from its participation in the 2000 PROGRAM.
MUNICIPALITY BENEFIT FROM POSSIBLE MDA GRANT REIMBURSEMENT
36. The PARTIES agree that the MUNICIPALITY may be eligible to benefit from any possible MDA
GRANT REIMBURSEMENT to the COUNTY on the following terms:
a. In the event that the COUNTY receives any MDA GRANT REIMBURSEMENT for any part
of any MUNICIPALITY SPRAY COSTS or any MDA APPROVED ADMINISTRATIVE COSTS
incurred and paid by the MUNICIPALITY, the COUNTY shall apply such amount as a credit toward
any amount then unpaid, due and/or owing to the COUNTY from the MUNICIPALITY under this
AGREEMENT. The total amount of REIMBURSEMENT credited toward the payment of
MUNICIPALITY SPRAY COSTS shall be the same amount as the amount of REIMBURSEMENT
received and paid to the COUNTY for all MUNICIPALITY SPRAY BLOCKS. The parties
acknowledge the possibility that some Municipality program-related costs may not be paid before
the time that any Reimbursement is to be credited. It is not the intent of this paragraph to exclude
any bonafide Municipality program cost, for purposes of crediting any Reimbursement, if for some
unusual reason such cost has not yet been paid by the Municipality.
b. If the amount of any direct MUNICIPALITY payments made to the COUNTY for
MUNICIPALITY SPRAY COSTS, plus any REIMBURSEMENT paid to and in the possession of the
COUNTY which is attributable to any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred by the MUNICIPALITY, exceeds the total amount
of all MUNICIPALITY SPRAY COSTS, and any MUNICIPALITY PRO-RATA SHARE OF ALL NON-
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
•
REIMBURSED COUNTY ADMINISTRATIVE COSTS, as defined herein, and any possible
PENALTIES; such excess amounts shall be deemed to have been an overpayment by the
MUNICIPALITY to the COUNTY and any such excess amounts shall be returned to the
MUNICIPALITY.
c. If, however, after all REIMBURSEMENT attributable to any MUNICIPALITY SPRAY
COSTS or MUNICIPALITY ADMINISTRATIVE COSTS has been received by the COUNTY and
credited, as provided for above, there remains any MUNICIPALITY SPRAY COST, any
MUNICIPALITY PRO-RATA SHARE OF ALL NON-REIMBURSED COUNTY ADMINISTRATIVE
COSTS, as defined herein, (and any possible PENALTIES) amounts unpaid and owing to the
COUNTY, the MUNICIPALITY shall be invoiced for the balance due.
d. Any REIMBURSEMENT received by the COUNTY attributable to any MDA APPROVED
ADMINISTRATIVE COSTS incurred and paid by the COUNTY in connection with the 2000
PROGRAM, shall be credited and used by the COUNTY toward offsetting the COUNTY'S costs and
expenses incurred in administering the 2000 PROGRAM, and shall not be credited or used to the
financial benefit of the MUNICIPALITY, in any manner.
COUNTY INVOICES TO MUNICIPALITY
37. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY. This invoice shall be based upon the
COUNTY'S best estimate at the time of the anticipated total MUNICIPALITY SPRAY COSTS minus the
total anticipated REIMBURSEMENT expected to be attributable to all MUNICIPALITY SPRAY COSTS and
expected to be received by the COUNTY from the MDA at a later date. The COUNTY'S estimates for the
purposes of this invoice, based upon its evaluation of then existing MDA GRANT circumstances, shall be
conclusive. The MUNICIPALITY agrees to pay the full amount shown on or before May 1, 2000, or no later
than 15 days after the invoice date, whichever date is later.
38. After final MDA GRANT REIMBURSEMENT amounts attributable to MUNICIPALITY SPRAY
COSTS and non recoverable costs are calculated or incurred by the MUNICIPALITY are received by the
COUNTY, the COUNTY shall prepare and forward to the MUNICIPALITY an invoice, if necessary, for the
payment of any then remaining unpaid or otherwise un-reimbursed MUNICIPALITY SPRAY COSTS
incurred and paid by the COUNTY in connection with any MUNICIPALITY SPRAY BLOCKS. The
MUNICIPALITY agrees to pay the full amount shown on this invoice within 30 days after the date of the
invoice.
MUNICIPALITY RECORD KEEPING
39. The MUNICIPALITY shall complete all MDA GRANT documents as required and cooperate with the
COUNTY in supplying all necessary or required information, forms, or cost and expense data to the
COUNTY on a timely basis. The MUNICIPALITY agrees that it shall maintain documentation of all costs
incurred and funds disbursed and shall retain all financial reports, supporting documents, and statistical
records until September 30, 2003. The MUNICIPALITY shall maintain any and all records that allow for
comparison of actual MUNICIPALITY outlays with all amounts submitted for REIMBURSEMENT. The
MUNICIPALITY'S overall financial management system must ensure effective control over, and
accountability for all funds received and/or expended. MUNICIPALITY accounting records must be
supported by documents such as canceled checks, invoices, personnel time reports, (e.g., time reports must
show name, date worked, position, brief description of duty or responsibility and number of hours worked.),
receipts or other verifiable proof of payment. The MUNICIPALITY agrees that any MUNICIPALITY costs
and expenses in connection with the 2000 PROGRAM may be subject to an audit by the State of Michigan
or the COUNTY at any time. The MUNICIPALITY agrees to cooperate fully with any State of Michigan or
COUNTY auditors in this regard and will allow such auditors complete and open access to any of the
MUNICIPALITY'S 2000 PROGRAM related records. The MUNICIPALITY further agrees that it shall return
any funds it was paid or pay any amount of REIMBURSEMENT it received the benefit of as a credit or
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
otherwise in connection with the 2000 PROGRAM when MUNICIPALITY records and documentation fail to
support, according to accepted accounting and auditing standards, any MUNICIPALITY expenses.
MUNICIPALITY PROVIDED INSURANCE
40. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under this
AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any MUNICIPALITY
AGENT, or by anyone for whose acts any of them may be liable.
e. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have insurance
or participate in a mandatory state fund to cover the benefits payable to any MUNICIPALITY
AGENT.
f. Liabilities for damages because of bodily injury, occupational sickness or disease, or death
of his employees.
9. Liabilities for damages because of bodily injury, sickness or disease, or death of any person
other than any MUNICIPALITY AGENT, subject to limits of liability of not less than $300,000 each
occurrence and, when applicable $300,000 annual aggregate, for non-automobile hazards and as
required by law for automobile hazards.
h. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each occurrence
for non-automobile hazards and as required by law for automobile hazards.
Insurance for the preceding two (2) subparagraphs non-automobile hazards on a combined
single limit of liability basis shall not be less than $300,000 each occurrence and when applicable,
$300,000 annual aggregate. The insurance shall be written for not less than any limits of liability
herein specified or required by law, whichever is greater, and shall include contractual liability
insurance as applicable to the MUNICIPALITY'S obligations under the indemnification provisions of
this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
41. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by the
MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
42. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
DISCLAIMER OF ANY COUNTY WARRANTY
43. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and enter
this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to participate. In
making this decision, the MUNICIPALITY has relied entirely upon its own investigation, and/or has had
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
ample opportunity to conduct such an investigation, of all material facts, applicable laws, and all such other
circumstances that might influence upon the MUNICIPALITY'S decision to enter this AGREEMENT. The
COUNTY shall make available to the MUNICIPALITY, upon request, copies of any information it receives
from the MDA in connection with the 2000 PROGRAM and the AERIAL SPRAYING.
44. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING component
of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to any tree by
Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy Moths, or that
the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or effective, or the
safest and most effective means of suppressing the Gypsy Moth infestation, or any other performance-
based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of
the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING for the delivery of
insecticide, the choice of insecticide, the insecticide application rates, the timing of such applications, etc.,
have been established under the terms of the MDA GRANT in which the MUNICIPALITY has voluntarily
consented to participate and assume all risks described and outlined in this AGREEMENT.
LIMITATION OF LIABILITY
45. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either PARTY
or any third person, whether in an action in contract or tort, whether or not the other PARTY has been
advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder shall in no
event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the COUNTY.
This AGREEMENT is intended to allocate the risks between the COUNTY and the MUNICIPALITY, and the
PARTIES agree that the allocation of each PARTY'S efforts, costs, and obligations under this AGREEMENT
reflect this allocation of risk and the limitations of liability specified herein.
46. The COUNTY under the terms of the MDA GRANT was limited in the selection and contract terms
with the PESTICIDE APPLICATOR. The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or
liability against the COUNTY for any material defects, errors, mistakes, negligence, or omissions in the
PESTICIDE APPLICATOR RFQ, the bid specifications, the bid procedure, the bid award process, the
PESTICIDE APPLICATOR contract negotiation process, the preparation or execution of the PESTICIDE
APPLICATOR contract, or any other errors or mistakes of fact by the COUNTY in the selection of the
PESTICIDE APPLICATOR. The MUNICIPALITY agrees that at all times and for all purposes under this
AGREEMENT the PESTICIDE APPLICATOR relationship to the COUNTY shall be that of an
INDEPENDENT CONTRACTOR and not a COUNTY AGENT as defined herein. The MUNICIPALITY
hereby agrees to waive any CLAIM(S) or liability against the COUNTY based in any manner upon any act or
omission of the PESTICIDE APPLICATOR.
CANCELLATION
47. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
48. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
, I 1
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
49. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM acreage
for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will exceed $32.00 per acre, the COUNTY shall notify the MUNICIPALITY in writing of the
then anticipated cost. The MUNICIPALITY, within five days after the receipt of such notice, but in no event
after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by a written notice to the
COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher than anticipated
costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the MUNICIPALITY paid to the
COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is obligated, shall be returned to
the MUNICIPALITY. The COUNTY may also unilaterally cancel this AGREEMENT should it appear that the
AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed $32.00 and shall have no further obligation
to the MUNICIPALITY under this AGREEMENT.
The MUNICIPALITY acknowledges that the MDA may cancel the MDA GRANT at any time. In the
event the MDA GRANT is canceled or otherwise materially reduced in scope for any reason, including but
not limited to a lack of funding, a determination that AERIAL SPRAYING effort is too late to be effective, or
any other operational reason, or should the expectations of the MDA GRANT REIMBURSEMENT materially
change anytime before the SPRAY DAY(S), the COUNTY may also cancel this AGREEMENT by giving the
MUNICIPALITY written notice of such cancellation.
2000 PROGRAM CHANGES
50. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to cancel
this AGREEMENT or otherwise change the total number acres or the configuration of any MUNICIPALITY
SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the COUNTY incurring any
PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated to pay to the COUNTY the
full amount of any and all PENALTIES incurred by the COUNTY. The MUNICIPALITY agrees that any
amount due and owing to the COUNTY as PENALTIES shall be above and beyond any other amounts
otherwise due and owing to the COUNTY under this AGREEMENT. The MUNICIPALITY shall not be
permitted to add, delete, substitute or change the configuration of any MUNICIPALITY SPRAY BLOCKS as
shown on Attachment "A" without the written approval of the COUNTY and the MDA.
FORCE MAJEURE
51. Neither the COUNTY nor the MDA shall be liable to the MUNICIPALITY or any person for failure or
delay in performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or delay
is caused by circumstances beyond the control of the COUNTY or the MDA, including, without limitation,
failures resulting from weather delays, premature or delayed development of the Gypsy Moth caterpillars,
high winds, unsafe flying conditions, circumstances that make the effectiveness of AERIAL SPRAYING to
suppress the infestation less than optimal, any material changes in the MDA GRANT and/or
REIMBURSEMENT schedules, accidents, labor stoppages, war, any default by the PESTICIDE
APPLICATOR, the inability to secure necessary materials or labor, governmental acts or regulations, acts of
God, or other causes beyond the COUNTY'S or MDA'S control, whether or not similar to those above. The
COUNTY agrees that, in any such event, the COUNTY shall communicate that fact to the MUNICIPALITY
when such fact(s) becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
52. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance coverage(s),
waivers of liability, liabilities, audit requirements, record-keeping requirements, any MUNICIPALITY payment
obligations to the COUNTY, 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
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16
P III I
any events or transactions that occurred before the cancellation or completion of this AGREEMENT, shall
survive the cancellation or completion of this AGREEMENT. The expiration, cancellation, or termination of
this AGREEMENT shall be without prejudice to any rights or claims of either PARTY against the other and
shall not relieve either PARTY of any obligations which, by their nature, survive expiration or termination of
this AGREEMENT.
2000 PROGRAM COMPLETION
53. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be suppressed
by AERIAL SPRAYING, or when 60% or more of the forest canopy has already been defoliated as
determined by the COUNTY or the MDA.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
54. The PARTIES reserve to themselves any rights and obligations related to the provision of any and
all of each PARTY'S respective governmental services, authority, responsibilities, and obligations. Except
as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to, create,
diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other
legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity,
or authority of either the MUNICIPALITY or the COUNTY to any other person or PARTY.
55. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties under
this AGREEMENT to any other person and/or public or private corporation, entity, or organizations of any
kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
56. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the
COUNTY Board of Commissioners and the governing Township Board of the MUNICIPALITY. The
approval and terms of this AGREEMENT shall be entered in the official minutes and proceedings of the
COUNTY Board of Commissioners and governing Township Board of the MUNICIPALITY and shall also be
filed with the office of the Clerk for the COUNTY and the MUNICIPALITY. In addition, this AGREEMENT,
and any subsequent amendments, shall be filed with the Secretary of State for the State of Michigan by the
COUNTY and shall not become effective or implemented prior to its filing with the Secretary of State.
57. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing Township Board of the
MUNICIPALITY. This AGREEMENT shall not be changed, supplemented, or amended except as provided
for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend
or modify this AGREEMENT.
AUDIT AND RECORD ACCESS
58. As required by the MDA GRANT, the MDA and/or the COUNTY shall have the right to audit the
MUNICIPALITY from time to time, after reasonable written notice of its intended audit, in order to assess the
MUNICIPALITY'S compliance with the terms of this AGREEMENT and to determine whether the
MUNICIPALITY is following generally accepted accounting standards and/or complying with all MDA
GRANT audit requirements and standards. The MUNICIPALITY shall similarly permit authorized State or
federal Agents to make one or more such audits and program reviews.
59. The MDA and/or COUNTY shall have the right to initiate any audit for a period of three (3) years
after the expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be
concluded or otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 17
60. The project will be subject to an audit by the State prior to or after the final payment. In addition,
Grantees that receive $25,000 or more in federal financial assistance annually shall have an audit
performed in accordance with Federal Circular No. A-128. A copy of the audit is to be submitted to the
Grant Administrator.
61. In conjunction with any audit the MUNICIPALITY shall permit the COUNTY and/or the MDA full and
complete availability and access to:
j. Any and all original personnel records, including, but not limited to, work evaluations,
references, wage records, time sheets and attendance records, of any MUNICIPALITY AGENTS,
as requested, for purposes of program evaluation, fiscal audit pertaining to this AGREEMENT.
k. All original records related to or necessary for determining any MUNICIPALITY
ADMINISTRATIVE COSTS or any MUNICIPALITY costs or expenses related to this AGREEMENT,
and/or any MUNICIPALITY costs or amounts submitted to the MDA for possible
REIMBURSEMENT.
REPAYMENT OF FUNDS RECEIVED BY MUNICIPALITY IN EXCESS OF ACTUAL MDA APPROVED
COSTS AND EXPENSES
62. The MUNICIPALITY agrees to repay the COUNTY, when and as requested, an amount equal to
any and all dollar amounts paid to the MUNICIPALITY by the COUNTY in connection with this
AGREEMENT which, based upon any audit finding or review of MUNICIPALITY'S records of actually
incurred and paid expenses, are determined by the MDA or the COUNTY to:
Have been either unreasonable and/or unnecessary MUNICIPALITY costs and expenses
and/or expenses which were not actually incurred and paid by the MUNICIPALITY in connection
with the 2000 PROGRAM. The MDA has defined "Reasonable Costs" as follows: A cost is
reasonable if, in it's nature and amount, it does not exceed that which would be incurred by a
prudent person under the circumstances prevailing at the time the decision was made to incur the
cost. In determining reasonableness of a given costs, consideration shall be given to: 1) whether
or not the items are necessary and reasonable for proper and efficient performance of the
agreement, and 2) Market prices for comparable goods or services, and 3) whether the
individuals concerned acted with prudence in the circumstances considering their responsibilities to
the governmental unit, its employees, the public at large, and the federal government.
m. Have been ineligible or inappropriate for the payment of any REIMBURSEMENT to
MUNICIPALITY under the terms and conditions of this AGREEMENT.
n. MUNICIPALITY repayment to the COUNTY, if any, as a result of audit findings or MDA or
COUNTY review of any MUNICIPALITY expenses shall be made by the MUNICIPALITY within
ninety (90) days following receipt of the final audit report or other such notice from the MDA and/or
the COUNTY. The MUNICIPALITY'S obligation to repay the COUNTY, as set forth in this section,
shall be absolute and unconditional and shall not be affected by the occurrence of either PARTY'S
default of any term or condition of this AGREEMENT nor shall any other occurrence or event
relieve, limit, or impair the obligation of the MUNICIPALITY to repay the COUNTY as provided for
herein. The MUNICIPALITY further agrees that the COUNTY may, at its sole option, recover any
such amounts by offsetting any amounts otherwise due and owing to the MUNICIPALITY by the
COUNTY.
MUNICIPALITY CONTRACTS FOR MERCHANDISE AND SERVICES
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 18
I I
11
63. For purchases of services and merchandise made by the MUNICIPALITY or any MUNICIPALITY
sub-contractor against or in anticipation of REIMBURSEMENT under the MDA GRANT, prior approval must
be received from the MDA for any single items costing $1,000 or greater. A formal bid process must be
followed for items of $10,000 or greater. A formal process consists of preparing an RFQ or bid to be sent to
at least five possible bidders. The bid process must be carried out under the direction of the MDA or its
representative. The MUNICIPALITY shall choose the lowest priced responsive and responsible bidder that
meets the requirements of the bid in order to meet State and Federal procurement guidelines.
MUNICIPALITY WAGES
As required by the MDA GRANT, any contract executed between the MUNICIPALITY and a
contractor which requires or involves the employment of construction mechanics, defined as skilled or
unskilled mechanics, laborers, workmen, helpers, associates, or apprentices working on projects funded or
anticipated to be funded in any part from any REIMBURSEMENT from the MDA GRANT but not including
executive, administrative, professional, office or custodial employees, shall contain the following terms:
a. Rates of wages and fringe benefits to be paid to each class of construction mechanics by
the MUNICIPALITY and all their contractors shall not be less than the wage and fringe benefit rates
prevailing in the locality in which the work is to be performed.
b. In addition, the MUNICIPALITY and all of their contractors agree to comply with all
pertinent provisions of PA 166 of 1965, "An Act to require prevailing wages and fringe benefits on
State projects; to establish the requirements and responsibilities of contracting agents and bidders;
and to prescribe penalties."
SUCCESSORS AND ASSIGNS BOUND
64. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of them.
NO THIRD-PARTY BENEFIT
65. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to be
subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of any
person, including, but not limited to, any MUNICIPALITY Resident, any Resident's legal representative, any
organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
66. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
NOTICES
67. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or written notices
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 19
1 •
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.
CHOICE OF LAW
68. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the context
so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
69. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
70. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
71. This AGREEMENT, consisting of a total of twenty-three (23) pages, including the two pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete and
entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all prior
agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further 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 MUNICIPALITY and the COUNTY
in any way related to the subject matter hereof, except as expressly stated herein.
72. For and in consideration of the mutual promises, acknowledgments, and representations set forth in
this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 20
BY:
I I
IN WITNESS WHEREOF, L. BROOKS PATTERSON,
County Executive of the COUNTY OF OAKLAND,
hereby acknowledges that he has been authorized by
a resolution of the Oakland County Board of
Commissioners, a certified copy of which is attached,
to execute this AGREEMENT on behalf of the
COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
L. BR KS PATTERSON,
County Executive
WITNESSED:
BY:
DATE:
IN WITNESS WHEREOF, JOHN P. STAKOE,
Supervisor of the CHARTER TOWNSHIP OF
HIGHLAND, hereby acknowledges that he has been
authorized by a resolution of the Township Board of
HIGHLAND, a certified copy of which is attached, to
execute this AGREEMENT on behalf of the
MUNICIPALITY, and hereby accepts and binds the
MUNICIPALITY to the terms and conditions of this
AGREEMENT on this /3 day of
,T/Pthi , 2000.
CHARTER TOWNSHIP OF HIGHLAND:
a Michigan Constitutional and Municipal Corporation
BY:
2C1L—";7 :)—OHN P. STAKO ,
Supervisor
BY: plA„a,--
WILLIAM E. BRIAN,
Clerk
DATE: 1-13 -.,q000
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 21
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Page CZ of
MUNICIPALITY SPRAY BLOCKS
Charter Township of Highland Regular Board of Trustees Meeting
approved Minutes of January 12, 2000
Page 4 of 4
c. Job Description — Planner.
Supervisor Stakoe provided a draft of the job description for an in-house planner to the Board.
He asked for permission to advertise the position in some planning magazines.
Ms. Sharp moved to authorize the supervisor to advertise for a planner in some planning
magazines. Mr. Hurst supported the motion and after discussion the motion carried with a
unanimous voice vote — seven "yes" votes.
d. Projects — Road Commission.
Mr. Brian moved to approve the expenditure of $20,000 towards graveling a portion of
Livingston Road from Duck Lake Road to Milford Road to be paid out of tri-party funds. Mrs.
Kiley supported the motion and it carried with the following roll call vote: Stakoe — yes, Kiley —
yes, Sharp — yes, Gruber — yes, Dietrich — yes, Hurst — yes, Brian — yes.
e. 2000 Municipality Participation Agreement — Gypsy Moth Suppression Program.
Mr. Hurst moved to approve the gypsy moth suppression program for 2000. Mr. Gruber
supported the motion and it carried with a unanimous voice vote — seven "yes" votes.
List of Bills:
Mr. Hurst moved to approve the list of bills as presented subject to correction. Ms. Sharp
supported the motion and it carried with the following roll call vote: Kiley — yes, Sharp — yes,
Gruber — yes. Dietrich — yes, Hurst — yes. Brian — yes, Stalcoe — yes.
Public Comments:
Sue Parlovecchio asked what the status of the Phase II study on the compost site was. Supervisor
Stakoe reported that the phase II study is due 60 days after closing which has not taken place yet.
John Dawson, 2901 West Wardlov.„ expressed concern that the Township get involved in
building a sewage treatment plant because of the permitting process and non-compliance issues.
He suggested that a committee be formed to look into it.
Adjourn:
At 9:45 p.m. Mr. Brian moved to adjourn. Ms. Sharp supported the motion and it carried with a
unanimous voice vote.
WEB:inlin William E. Brian, Clerk
TOWNSHIP OF ROSE
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
This TOWNSHIP OF ROSE MUNICIPALITY PARTICIPATION AGREEMENT-2000 OAKLAND COUNTY
GYPSY MOTH PROGRAM (hereafter "AGREEMENT") is made and entered into between the TOWNSHIP
OF ROSE, a Michigan Constitutional and Municipal Corporation whose address is 204 Franklin Street
Holly, Michigan 48442 (hereafter the "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan
Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan
48341 (hereafter the "COUNTY"). In this AGREEMENT, the COUNTY and/or the MUNICIPALITY may also
be referred to as a "PARTY" or the "PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree filled
landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program to
help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY has chosen to assist qualifying LOCAL UNITS by participating in a statewide treatment
program developed by the Michigan Department of Agriculture (hereafter "MDA"). The MDA program offers
the expertise and experience of the MDA in suppressing the Gypsy Moth infestation plus the possibility of
federal and/or state cost sharing for program expenses through a Michigan Department of Agriculture grant
entitled the Michigan Gypsy Moth Cooperative Suppression Program.2000 Grant Application (hereafter the
"MDA GRANT").
The COUNTY, through this AGREEMENT, provides LOCAL UNITS eligible to participate under the MDA
GRANT, including the MUNICIPALITY, an opportunity to join this County-wide program and realize
economies of scale, cost savings, and possible cost sharing through the MDA GRANT that the
MUNICIPALITY could not achieve independently. This cooperative COUNTY program is entitled the2000
Oakland County Gypsy Moth Suppression Program (hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with a MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor at the MDA determined point in the Gypsy Moth life cycle in
an attempt to minimize MUNICIPALITY tree damage.
The aerial insecticide application and timing aspects for the suppression of the Gypsy Moth in the 2000
PROGRAM are subject to the terms of the MDA GRANT, whereas the MUNICIPALITY'S participation in the
2000 PROGRAM is subordinate to the MDA GRANT terms and subject to this AGREEMENT.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached, incorporated,
and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT", "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS", "MDA", "MDA GRANT" and "2000 PROGRAM" as defined above,
the following are also defined terms in this AGREEMENT:
a. "AGENT" or "AGENTS", when referred to as either an AGENT or AGENTS of the COUNTY
(e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall be defined
to include any and all of that PARTY'S officers, elected officials, appointed officials, directors, board
members, council members, authorities, boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons' successors
or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in
their personal, representative, or official capacities), and/or any and all persons acting by, through,
under, or in concert with any of them. "AGENT" shall also include any person who was an AGENT
any time during this AGREEMENT but for any reason is no longer employed, appointed, or elected
in that capacity. "AGENT", as defined for any purpose in this AGREEMENT, shall NOT include the
PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to coordinate
and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under this
AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief or
damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct, indirect
or consequential, whether based upon any alleged violation of the constitution (federal or state), any
statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise,
and/or whether commenced or threatened and arising out of any alleged breach of any duty by the
MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this AGREEMENT or
are based on or result in any way from the MUNICIPALITY'S participation in the 2000 PROGRAM
or this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and approved by the MDA, selected through an MDA prescribed bidding
process from the MDA list of qualified and approved agricultural aerial pesticide spray contractors
who met the MDA GRANT selection criteria. The PESTICIDE APPLICATOR shall be responsible
for the AERIAL SPRAYING, as defined herein, and as defined herein the PESTICIDE
APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers, boards,
directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all persons
acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for under
the MDA GRANT and/or this AGREEMENT.
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to MDA and COUNTY approval, MDA GRANT
priority and eligibility requirements for REIMBURSEMENT, and the required property owner and/or
resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The MUNICIPALITY
SPRAY BLOCKS are specifically identified and described in Attachment "A".
g. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined as
any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in connection
with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be determined by
multiplying the total number of acres contained in all MUNICIPALITY SPRAY BLOCKS times the
"AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre
under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL
UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE SPRAY COST/ACRE shall
be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE
APPLICATOR in connection with all 2000 PROGRAM AERIAL SPRAYING (in all participating
LOCAL UNITS, including the MUNICIPALITY) by the total number of acres within the County of
Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR in connection with the
2000 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL
SPRAYING by the PESTICIDE APPLICATOR shall be determined by the MDA based upon MDA
established pesticide-flow rates and spray and volume measures taken on any SPRAY DAY(S).
The MDA determination of the total number of acres within the County of Oakland treated by
AERIAL SPRAYING by the PESTICIDE APPLICATOR shall be final. The COUNTY anticipates that
the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will be less than $32.00 per acre. However,
until the total 2000 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTY-WIDE
SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $32.00 per acre, the
PARTIES may cancel this AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE APPLICATOR
is scheduled by the COUNTY, the MDA, and the PESTICIDE APPLICATOR. SPRAY DAY(S), in all
participating LOCAL UNITS, including the MUNICIPALITY, are expected to occur sometime
between MAY 5, 2000 and June 10, 2000, depending upon such factors as the daily caterpillar
development reports, the weather, temperature, wind conditions, and other last-minute variables
upon which any decision to spray or postpone AERIAL SPRAYING must be based. The COUNTY,
with the MDA and the PESTICIDE APPLICATOR, shall decide the commencement and sequence
of all AERIAL SPRAYING and SPRAY DAY(S).
j. "ADMINISTRATIVE COSTS" shall be defined as any and all 2000 PROGRAM costs,
expenses, wages, salaries, fringe benefit costs, equipment, supplies, administrative overhead,
building costs, or any costs and expenses that are incurred and/or paid either by the COUNTY, on
or after October 1, 1999, but before September 30, 2000, (i.e., COUNTY ADMINISTRATIVE
COSTS) or by the MUNICIPALITY on or after October 1, 1999, but before June 30, 2000, (i.e.,
MUNICIPALITY ADMINISTRATIVE COSTS) in connection with the 2000 PROGRAM.
ADMINISTRATIVE COSTS and MUNICIPALITY SPRAY COSTS are mutually exclusive cost
categories. All claimed ADMINISTRATIVE COSTS must have been incurred exclusively for and in
connection with the 2000 PROGRAM. No additional ADMINISTRATIVE COSTS shall be allowed
after the 2000 PROGRAM is ended. "ADMINISTRATIVE COSTS" may be further defined and
limited to "MDA APPROVED ADMINISTRATIVE COSTS".
k. "MDA APPROVED ADMINISTRATIVE COSTS" shall be defined as any and all
ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM by either PARTY
which have been approved by the MDA as eligible for possible REIMBURSEMENT under the terms
of the MDA GRANT. The MDA shall solely decide which, if any, ADMINISTRATIVE COSTS
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
submitted by the COUNTY or the MUNICIPALITY in connection with the 2000 PROGRAM shall be
approved and eligible for REIMBURSEMENT under established MDA GRANT criteria and in what
amount, if any, REIMBURSEMENT shall be paid to the COUNTY.
I. "REIMBURSEMENT' shall be defined as any MDA GRANT funds received by the
COUNTY because of the COUNTY'S submission of any MUNICIPALITY SPRAY COST, or any
COUNTY or MUNICIPALITY ADMINISTRATIVE COSTS to the MDA which were specifically paid to
the COUNTY and attributable to any specific MUNICIPALITY SPRAY COST or any COUNTY or
MUNICIPALITY ADMINISTRATIVE COSTS. The MDA shall not reimburse the PESTICIDE
APPLICATOR or the MUNICIPALITY directly and all REIMBURSEMENT shall be paid only to the
COUNTY. The MUNICIPALITY agrees that the MDA shall solely decide: the extent, and amount, if
any, of any possible REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or
MUNICIPALITY ADMINISTRATIVE COSTS. The MUNICIPALITY agrees that the MDA GRANT
establishes criteria for MUNICIPALITY REIMBURSEMENT and that not every MUNICIPALITY
SPRAY COST and/or MUNICIPALITY ADMINISTRATIVE COSTS incurred shall be eligible for MDA
approval or REIMBURSEMENT or receive a uniform rate of REIMBURSEMENT. The COUNTY
shall have no obligation to represent, challenge, contest, appeal, or argue for any
REIMBURSEMENT on behalf of the MUNICIPALITY with the MDA.
m. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related legal
obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of any
MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as provided
below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws any
MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage from
that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
" A", when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM, will
be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the AERIAL
SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce, withdraw,
or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may subject the
COUNTY to certain "PENALTIES" under its contract with the PESTICIDE APPLICATOR. Decisions
by the MDA, the COUNTY, or any governmental authority other than the MUNICIPALITY to exclude
or prohibit AERIAL SPRAYING of any partial or entire MUNICIPALITY SPRAY BLOCK shall not be
considered a decision by the MUNICIPALITY to change, withdraw, or cancel the AERIAL
SPRAYING of any MUNICIPALITY SPRAY BLOCK for the purposes of assessing any PENALTIES.
COUNTY MDA GRANT COORDINATION RESPONSIBILITIES
2. The COUNTY will apply for, attempt to qualify for, and secure possible MDA GRANT
REIMBURSEMENT to reduce the total 2000 PROGRAM costs. The COUNTY, with the cooperation of the
MUNICIPALITY and subject to this AGREEMENT, will undertake all reasonable and necessary
administrative steps required by the Grantee under the MDA GRANT.
3. The COUNTY will enter a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR according to the MDA GRANT required purchasing requirements, including the
development of the required Request for Quotation ("RFQ"), solicitation and review of all bids, and the final
selection and contracting with an MDA approved and qualified PESTICIDE APPLICATOR to conduct the
AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the 2000 PROGRAM. The
pesticide applicator contract shall include the following insurance requirements.
INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or
any potential subcontractors:
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
a. Worker's Compensation Coverage as required by Michigan statute.
Coverage B, Employer's Liability, in the minimum amount of $500,000.00
per coverage.
b. If you are a Fixed Base Operator (F.B.0.), you must provide the
following coverage(s):
Comprehensive General Liability Coverage in the minimum amount of
$2,500,000.00 combined single limit and $5,000,000.00 aggregate
coverage covering the following exposures:
i. premise operation
ii. personal injury
iii. products and completed operations
iv. contractual liability - specifically addressing this contract.
c. If you are not a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Your aircraft liability coverage endorsed to cover premises liability in the
minimum amount of $2,500,000.00 combined single limit per occurrence.
d. Auto Fleet Liability in the minimum amount of $500,000.00 per occurrence
and providing coverage for fuel tenders, if applicable, and coverage for
Michigan No-Fault.
e. Aircraft Liability Coverage in the minimum amount of $2,500,000.00
combined single limit per occurrence and $5,000,000.00 in the aggregate
and must specifically contemplate coverage for aerial spraying. In addition,
coverage for Chemical Drift must be provided with the following limits:
i. $100,000.00 per person
ii. $300,000.00 per accident (no aggregate)
iii. $100,000.00 per accident property damage
iv. $100,000.00 property damage aggregate.
v. Coverage must include damage to property being treated and the
residential exclusion must be removed. This shall be endorsed to
cover target application.
vi. You also must provide an "Additional Interest Endorsement" issued
naming the County of Oakland and each of the following local
governmental entities (hereafter individually "Municipality" or
collectively "Municipalities") located within the County of Oakland
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
g.
which will be participating in any resulting Contract with any bidder
as there are going to be Spray Blocks located within these
Municipalities and the County will be contracting with each of the
following Municipalities for participation in this Program.
Charter Township of Highland, Charter Township of Orion,
Township of Rose, Charter Township of Springfield, Charter
Township of White Lake, and City of Rochester Hills.
vii. The "Additional Interest Endorsement" required in the Aircraft
Liability Insurance for the County and each of the Municipalities
shall also include any and all of the County's and each
Municipality's elected officials, appointed officials, officers,
employees, volunteers, boards, commissions, councils, and
committees.
f. The County shall receive the appropriate certificates of insurance providing
evidence of the above coverage(s) prior to work being performed and
which shall provide a minimum of 30 days notice to the County of any
cancellation or material change in coverage(s). All Certificates of
Insurance, and/or duplicate policies from CONTRACTOR shall contain the
following clauses:
i. "The insurance CONTRACTOR(s) issuing the policy or policies
shall have no recourse against COUNTY for payment of any
premiums or for assessments under and form of policy."
ii. "Any and all deductibles in the above described insurance policies
shall be assumed by and be for the account of, and at the sole risk
of, the CONTRACTOR."
iii. "There will be no additional exclusions running to the additional
insured based upon any actions or activities of the named insured."
All required insurance will be carried with insurance companies authorized
to do business in the State of Michigan.
h. The CONTRACTOR agrees that the COUNTY shall be legally subrogated
to any rights to recover and/or benefits the CONTRACTOR may have in
any insurance policy and to the full extent of any payment under any
insurance policy is required to make the COUNTY whole for any loss and,
and the CONTRACTOR shall cooperate, and perform any act necessary to
secure such rights on behalf of the COUNTY.
i. The CONTRACTOR agrees that should it fail to satisfy any insurance
obligation as described in Addendum A, the COUNTY, at its sole
discretion, shall have the right to cancel any Contract with the bidder or
Contractor.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
Under no circumstances, shall the County have any liability or responsibility for the purchase,
transportation, storage, disposal, or security of any insecticide. In the event of any an order to
cease aerial spraying activities, the County shall not be required to purchase, receive, or be
responsible for any unused insecticide from the Contractor.
4. The COUNTY shall be the sole Grantee under the MDA GRANT and shall act as the MDA GRANT
coordinator and fiscal agent for the MUNICIPALITY, subject to the terms of this AGREEMENT, with regard
to the financing and initial payment to the PESTICIDE APPLICATOR for all MUNICIPALITY SPRAY
COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all MUNICIPALITY SPRAY
COSTS shall always remain the eventual, final, and exclusive financial responsibility of the MUNICIPALITY.
5. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT and the MDA GRANT.
6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2000
PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information to
assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000 PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program options,
the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth infestation to be
available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information from the MDA to assist
the MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY SPRAY
BLOCKS under the 2000 PROGRAM and for possible REIMBURSEMENT under the MDA GRANT.
d. Provide the MUNICIPALITY with all necessary operational forms and MDA GRANT
documents so the MUNICIPALITY can thoroughly understand the MDA GRANT requirements and
REIMBURSEMENT limitations under the MDA GRANT and/or this AGREEMENT. The COUNTY
shall also provide any MDA GRANT procedures and/or operating instructions related to
MUNICIPALITY SPRAY BLOCK, marking requirements so that the MUNICIPALITY can
appropriately train and assign MUNICIPALITY AGENTS to perform these obligations.
7. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media as
required by the MDA GRANT. The COUNTY will provide information and answer questions from the public,
community and citizen groups, LOCAL UNITS, and the media about the Gypsy Moth infestation and
AERIAL SPRAYING treatment under the 2000 PROGRAM.
8. The COUNTY, as required by the MDA GRANT, shall also hold a County-wide public meeting or an
MDA approved alternative method to solicit citizen concerns regarding the 2000 PROGRAM and provide
technical information. The COUNTY, at this meeting, shall explain the 2000 PROGRAM, the insecticide that
will be used, the MUNICIPALITY SPRAY BLOCK qualifying parameters as required in the Environmental
Impact Statement, and collect information regarding environmentally sensitive areas.
9. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for
future treatment planning and programs.
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
10. The COUNTY, as required by the MDA GRANT, shall conduct the post treatment evaluation and
survey of a random sample of treated MUNICIPALITY SPRAY BLOCKS and property owners from the
treated MUNICIPALITY SPRAY BLOCKS, using MDA approved questionnaire and survey tools to
determine the percentage of foliar preservation necessary to comply with the MDA GRANT requirements.
11. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to capture
trends for future program planning.
12. The COUNTY will consolidate the MUNICIPALITY SPRAY COSTS with all such costs from all
other participating LOCAL UNITS into the combined MDA GRANT required format and submit same to the
MDA for approval and possible REIMBURSEMENT. The COUNTY will similarly combine all
MUNICIPALITY ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM with all such
costs incurred by other participating LOCAL UNITS and the COUNTY and will submit all such 2000
PROGRAM ADMINISTRATIVE COSTS to the MDA for approval and possible REIMBURSEMENT.
13. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are necessary
to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL SPRAYING of
all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
14. The MUNICIPALITY warrants that only those such blocks that have been: surveyed for egg mass
density as required by the MDA, which in the judgment of the MUNICIPALITY meet MDA GRANT eligibility
criteria and are located entirely within the MUNICIPALITY are included in the MUNICIPALITY SPRAY
BLOCKS which are further described in Attachment "A".
15. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet MDA GRANT criteria for inclusion, do not qualify for
any MDA GRANT REIMBURSEMENT, will burden or jeopardize the COUNTY'S compliance with the MDA
GRANT, or unacceptably obligate the COUNTY to pay for MUNICIPALITY SPRAY COSTS beyond
anticipated MDA GRANT REIMBURSEMENT or which cannot be safely or effectively treated by AERIAL
SPRAYING as decided by the PESTICIDE APPLICATOR. The MUNICIPALITY agrees that,
notwithstanding any provision in this AGREEMENT, the MDA also has the absolute right to reject any
MUNICIPALITY SPRAY BLOCKS and/or deny REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS
or ADMINISTRATIVE COSTS for any rejected MUNICIPALITY SPRAY BLOCKS.
16. After COUNTY and MDA approval of MUNICIPALITY SPRAY BLOCKS, the permission and
approval of all residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS shall
also be sought. The COUNTY shall notify all property owners, as required by the MDA GRANT, in the
MUNICIPALITY SPRAY BLOCKS at least 30 days before the projected SPRAY DAY(S) of the planned
AERIAL SPRAYING. For these purposes, the MUNICIPALITY agrees to provide, in such quantities as
requested, MUNICIPALITY resident and/or property owner mailing lists, mailing labels, and any other
identifying information necessary to facilitate communications between the COUNTY COORDINATOR and
any resident and/or property owner in any MUNICIPALITY SPRAY BLOCK.
17. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call or
objection with the individual's name, address, telephone number and parcel number. The MUNICIPALITY
shall promptly forward copies of any entries into such written logs and records to the COUNTY
COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be scheduled for
AERIAL SPRAYING after the objection of the resident or property owner has been received. The COUNTY
COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure that the 2000 PROGRAM is
completely understood and verify that the property owner does not wish their property to be included in the
AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any property owner's exclusions
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2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust
MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
18. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or between
any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S) the
MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes to
the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report any
additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be mapped
by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING. Maps
shall be accompanied by a written summary on a form provided by the MDA that identifies for each
proposed MUNICIPALITY SPRAY BLOCK the number of homes, the MDA SPRAY BLOCK priority category
and the number of acres to be sprayed within each MUNICIPALITY SPRAY BLOCK. The MUNICIPALITY
shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
19. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The MUNICIPALITY
agrees to make the necessary staffing and planning arrangements and adjust, as necessary, any
MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday SPRAY DAY(S)), to
meet its SPRAY DAY(S) obligations on such short notice.
20. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall ensure that all MUNICIPALITY SPRAY BLOCKS are adequately and properly marked with the
appropriate helium-filled marker balloons or adequate natural landmarks, as specified in the MDA GRANT or
the PESTICIDE APPLICATOR contract. The MUNICIPALITY shall be responsible for providing enough
MUNICIPALITY AGENTS to place such required marker balloons (hereafter "balloon crews") to adequately
identify MUNICIPALITY SPRAY BLOCKS for AERIAL SPRAYING and otherwise help in related SPRAY
DAY(S) activities as requested. The MUNICIPALITY shall be responsible for assuring that all non-spray
areas are adequately marked off with either off-color balloons or by double balloons so that the pilot
conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY BLOCKS from
adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt removal of all
balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY DAY(S)
operations have been completed.
21. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone or suitable
mobile radios for communicating with the COUNTY COORDINATOR. Except for marking balloon related
supplies (e.g., balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for
providing all MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK
maps, transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole
judgment, deems are required or beneficial for the completion of any MUNICIPALITY responsibilities under
this AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
22. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all federal,
state, and local laws, ordinances, regulations, and agency requirements in any manner affecting the work or
performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and assist in securing
all necessary certificates and permits from such public authorities as may be required for AERIAL
SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations for safety
precautions under the exclusive control and supervision of any other governmental agency or entity. The
MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary for the
protection of persons and property which may be affected by AERIAL SPRAYING, and will notify the
COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any potentially
dangerous situation. In case of an emergency affecting the safety of any persons or property, the
MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by attempting
to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
23. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON".
The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2000
PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
24. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified MUNICIPALITY
AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this AGREEMENT. The
MUNICIPALITY AGENTS shall be employed and assigned based on appropriate qualifications and other
factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it shall be solely responsible for
furnishing all MUNICIPALITY AGENTS with all job instructions, job descriptions and job specifications and
shall otherwise control, supervise, train or direct MUNICIPALITY AGENTS in the performance of any
MUNICIPALITY duties or obligations under this AGREEMENT. The MUNICIPALITY agrees that the
COUNTY shall have no liability or obligation in this regard.
25. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner. The
MUNICIPALITY agrees that neither the MUNICIPALITY nor any MUNICIPALITY AGENT will, in any
manner, interfere or prevent the COUNTY from timely completion of any COUNTY obligations under the
MDA GRANT.
26. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall be
considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees that
it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or future
wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or
any other statutory or contractual right or benefit based on or in any way related to any MUNICIPALITY
AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S statutory,
contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY AGENT.
The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any and all
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any COUNTY AGENT
by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise from, or are in any way
related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other employment-related or
based rights, including, but not limited to, those described in this Paragraph.
MDA GRANT LIMITATIONS ON EMPLOYMENT OF MUNICIPALITY AGENTS
27. The MUNICIPALITY shall insure that no member of the legislature of the State of Michigan or any
individual employed by the State shall be permitted to share in any REIMBURSEMENT or other benefit paid
to or received by the MUNICIPALITY from the MDA GRANT.
28. The MUNICIPALITY shall report to the COUNTY within five (5) days after the end of each month,
that this AGREEMENT is in effect, the names, social security numbers and the amount of payment made to
any former State of Michigan employee who:
a. Retired from the State between June 2, 1984 and September 30, 1984 under the provisions
of Act 2 and 3 of the Public Acts of 1984.
b. Is less than 62 years of age; and
c. Performed services purchased by the State under the provisions of the MDA GRANT
during the month. For any month which the MUNICIPALITY has no employees (as described
above) assigned to work performed under the provisions of this AGREEMENT, no report is
required.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
29. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
30. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide any
financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset any
MUNICIPALITY SPRAY COSTS or MUNICIPALITY ADMINISTRATIVE COSTS in connection with the
MUNICIPALITY'S participation in the 2000 PROGRAM except as expressly provided for in this
AGREEMENT. The MUNICIPALITY agrees that any and all such MUNICIPALITY SPRAY COSTS, and any
PENALTIES shall at all times remain the sole financial responsibility of the MUNICIPALITY.
31. The MUNICIPALITY agrees that its participation in the 2000 PROGRAM and/or any and all of its
obligations under this AGREEMENT, including but not limited to the MUNICIPALITY'S payment obligations
to the COUNTY, are NOT contingent, dependent, and/or in any way conditioned upon the eventual receipt
of any REIMBURSEMENT under the MDA GRANT or from any other financial assistance or support from
outside the MUNICIPALITY. The MUNICIPALITY further agrees that any amount due and owing to the
COUNTY under this AGREEMENT, which is still unpaid at the time the COUNTY distributes funds to the
MUNICIPALITY from the Delinquent Tax Revolving Fund (DTRF), the COUNTY shall be entitled to reduce,
set-off, and permanently retain any amount due to the MUNICIPALITY from Delinquent Tax Revolving Fund
(DTRF) by any such amount then still due and owing the COUNTY pursuant to this AGREEMENT.
POSSIBLE MDA GRANT REIMBURSEMENT
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
33. The MUNICIPALITY shall submit all itemized MUNICIPALITY ADMINISTRATIVE COSTS and
related expenses for the 2000 PROGRAM to the COUNTY COORDINATOR no later than June 30, 2000,
and shall provide written documentation for any such costs as required. Possible MUNICIPALITY
ADMINISTRATIVE COST REIMBURSEMENT is dependent upon properly submitted and documented
expenses. The COUNTY shall not be required to submit any MUNICIPALITY ADMINISTRATIVE COSTS
that are either: incurred or submitted after June 30, 2000, not sufficiently documented, or not readily
transferable to the MDA GRANT required format. The COUNTY shall not to be required to speculate,
compile, or calculate any MUNICIPALITY ADMINISTRATIVE COSTS claimed or the purpose(s) for which
any MUNICIPALITY ADMINISTRATIVE COSTS were incurred by the MUNICIPALITY.
34. Upon receipt of any REIMBURSEMENT the COUNTY will prepare a REIMBURSEMENT summary
of all MUNICIPALITY SPRAY COSTS and MDA APPROVED ADMINISTRATIVE COSTS in connection with
the 2000 PROGRAM and the amount of any such REIMBURSEMENT received attributable to any
MUNICIPALITY SPRAY COST and MUNICIPALITY MDA APPROVED ADMINISTRATIVE COSTS. The
MUNICIPALITY agrees that any MUNICIPALITY benefit or interest in any REIMBURSEMENT received by
the COUNTY under the MDA GRANT or under the terms of this AGREEMENT shall be based solely upon
any MDA approved and paid REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred and paid by the MUNICIPALITY and shall not be based, in
any manner, upon any such costs as may have been incurred, claimed, or submitted by the
MUNICIPALITY.
35. The MUNICIPALITY agrees that any MDA GRANT REIMBURSEMENT for any 2000 PROGRAM
costs incurred by either the MUNICIPALITY or the COUNTY are not certain or guaranteed. The PARTIES
further agree that the failure of the COUNTY to receive or qualify for any MDA GRANT REIMBURSEMENT
shall neither relieve the MUNICIPALITY of any financial obligation to the COUNTY nor create any financial
liability for the COUNTY to reimburse the MUNICIPALITY for any and all MUNICIPALITY cost or expenses
associated with or resulting from its participation in the 2000 PROGRAM.
MUNICIPALITY BENEFIT FROM POSSIBLE MDA GRANT REIMBURSEMENT
36. The PARTIES agree that the MUNICIPALITY may be eligible to benefit from any possible MDA
GRANT REIMBURSEMENT to the COUNTY on the following terms:
a. In the event that the COUNTY receives any MDA GRANT REIMBURSEMENT for any part
of any MUNICIPALITY SPRAY COSTS or any MDA APPROVED ADMINISTRATIVE COSTS
incurred and paid by the MUNICIPALITY, the COUNTY shall apply such amount as a credit toward
any amount then unpaid, due and/or owing to the COUNTY from the MUNICIPALITY under this
AGREEMENT. The total amount of REIMBURSEMENT credited toward the payment of
MUNICIPALITY SPRAY COSTS shall be the same amount as the amount of REIMBURSEMENT
received and paid to the COUNTY for all MUNICIPALITY SPRAY BLOCKS. The parties
acknowledge the possibility that some Municipality program-related costs may not be paid before
the time that any Reimbursement is to be credited. It is not the intent of this paragraph to exclude
any bonafide Municipality program cost, for purposes of crediting any Reimbursement, if for some
unusual reason such cost has not yet been paid by the Municipality.
b. If the amount of any direct MUNICIPALITY payments made to the COUNTY for
MUNICIPALITY SPRAY COSTS, plus any REIMBURSEMENT paid to and in the possession of the
COUNTY which is attributable to any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred by the MUNICIPALITY, exceeds the total amount
of all MUNICIPALITY SPRAY COSTS, and any MUNICIPALITY PRO-RATA SHARE OF ALL NON-
REIMBURSED COUNTY ADMINISTRATIVE COSTS, as defined herein, and any possible
PENALTIES; such excess amounts shall be deemed to have been an overpayment by the
MUNICIPALITY to the COUNTY and any such excess amounts shall be returned to the
MUNICIPALITY.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
c. If, however, after all REIMBURSEMENT attributable to any MUNICIPALITY SPRAY
COSTS or MUNICIPALITY ADMINISTRATIVE COSTS has been received by the COUNTY and
credited, as provided for above, there remains any MUNICIPALITY SPRAY COST, any
MUNICIPALITY PRO-RATA SHARE OF ALL NON-REIMBURSED COUNTY ADMINISTRATIVE
COSTS, as defined herein, (and any possible PENALTIES) amounts unpaid and owing to the
COUNTY, the MUNICIPALITY shall be invoiced for the balance due.
d. Any REIMBURSEMENT received by the COUNTY attributable to any MDA APPROVED
ADMINISTRATIVE COSTS incurred and paid by the COUNTY in connection with the 2000
PROGRAM, shall be credited and used by the COUNTY toward offsetting the COUNTY'S costs and
expenses incurred in administering the 2000 PROGRAM, and shall not be credited or used to the
financial benefit of the MUNICIPALITY, in any manner.
COUNTY INVOICES TO MUNICIPALITY
37. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY. This invoice shall be based upon the
COUNTY'S best estimate at the time of the anticipated total MUNICIPALITY SPRAY COSTS minus the
total anticipated REIMBURSEMENT expected to be attributable to all MUNICIPALITY SPRAY COSTS and
expected to be received by the COUNTY from the MDA at a later date. The COUNTY'S estimates for the
purposes of this invoice, based upon its evaluation of then existing MDA GRANT circumstances, shall be
conclusive. The MUNICIPALITY agrees to pay the full amount shown on or before May 1, 2000, or no later
than 15 days after the invoice date, whichever date is later.
38. After final MDA GRANT REIMBURSEMENT amounts attributable to MUNICIPALITY SPRAY
COSTS and non recoverable costs are calculated or incurred by the MUNICIPALITY are received by the
COUNTY, the COUNTY shall prepare and forward to the MUNICIPALITY an invoice, if necessary, for the
payment of any then remaining unpaid or otherwise un-reimbursed MUNICIPALITY SPRAY COSTS
incurred and paid by the COUNTY in connection with any MUNICIPALITY SPRAY BLOCKS. The
MUNICIPALITY agrees to pay the full amount shown on this invoice within 30 days after the date of the
invoice.
MUNICIPALITY RECORD KEEPING
39. The MUNICIPALITY shall complete all MDA GRANT documents as required and cooperate with the
COUNTY in supplying all necessary or required information, forms, or cost and expense data to the
COUNTY on a timely basis. The MUNICIPALITY agrees that it shall maintain documentation of all costs
incurred and funds disbursed and shall retain all financial reports, supporting documents, and statistical
records until September 30, 2003. The MUNICIPALITY shall maintain any and all records that allow for
comparison of actual MUNICIPALITY outlays with all amounts submitted for REIMBURSEMENT. The
MUNICIPALITY'S overall financial management system must ensure effective control over, and
accountability for all funds received and/or expended. MUNICIPALITY accounting records must be
supported by documents such as canceled checks, invoices, personnel time reports, (e.g., time reports must
show name, date worked, position, brief description of duty or responsibility and number of hours worked.),
receipts or other verifiable proof of payment. The MUNICIPALITY agrees that any MUNICIPALITY costs
and expenses in connection with the 2000 PROGRAM may be subject to an audit by the State of Michigan
or the COUNTY at any time. The MUNICIPALITY agrees to cooperate fully with any State of Michigan or
COUNTY auditors in this regard and will allow such auditors complete and open access to any of the
MUNICIPALITY'S 2000 PROGRAM related records. The MUNICIPALITY further agrees that it shall return
any funds it was paid or pay any amount of REIMBURSEMENT it received the benefit of as a credit or
otherwise in connection with the 2000 PROGRAM when MUNICIPALITY records and documentation fail to
support, according to accepted accounting and auditing standards, any MUNICIPALITY expenses.
MUNICIPALITY PROVIDED INSURANCE
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
40. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under this
AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any MUNICIPALITY
AGENT, or by anyone for whose acts any of them may be liable.
e. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have insurance
or participate in a mandatory state fund to cover the benefits payable to any MUNICIPALITY
AGENT.
f. Liabilities for damages because of bodily injury, occupational sickness or disease, or death
of his employees.
9. Liabilities for damages because of bodily injury, sickness or disease, or death of any person
other than any MUNICIPALITY AGENT, subject to limits of liability of not less than $300,000 each
occurrence and, when applicable $300,000 annual aggregate, for non-automobile hazards and as
required by law for automobile hazards.
h. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each occurrence
for non-automobile hazards and as required by law for automobile hazards.
Insurance for the preceding two (2) subparagraphs non-automobile hazards on a combined
single limit of liability basis shall not be less than $300,000 each occurrence and when applicable,
$300,000 annual aggregate. The insurance shall be written for not less than any limits of liability
herein specified or required by law, whichever is greater, and shall include contractual liability
insurance as applicable to the MUNICIPALITY'S obligations under the indemnification provisions of
this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
41. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by the
MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
42. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
DISCLAIMER OF ANY COUNTY WARRANTY
43. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and enter
this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to participate. In
making this decision, the MUNICIPALITY has relied entirely upon its own investigation, and/or has had
ample opportunity to conduct such an investigation, of all material facts, applicable laws, and all such other
circumstances that might influence upon the MUNICIPALITY'S decision to enter this AGREEMENT. The
COUNTY shall make available to the MUNICIPALITY, upon request, copies of any information it receives
from the MDA in connection with the 2000 PROGRAM and the AERIAL SPRAYING.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
44. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING component
of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to any tree by
Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy Moths, or that
the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or effective, or the
safest and most effective means of suppressing the Gypsy Moth infestation, or any other performance-
based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of
the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING for the delivery of
insecticide, the choice of insecticide, the insecticide application rates, the timing of such applications, etc.,
have been established under the terms of the MDA GRANT in which the MUNICIPALITY has voluntarily
consented to participate and assume all risks described and outlined in this AGREEMENT.
LIMITATION OF LIABILITY
45. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either PARTY
or any third person, whether in an action in contract or tort, whether or not the other PARTY has been
advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder shall in no
event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the COUNTY.
This AGREEMENT is intended to allocate the risks between the COUNTY and the MUNICIPALITY, and the
PARTIES agree that the allocation of each PARTY'S efforts, costs, and obligations under this AGREEMENT
reflect this allocation of risk and the limitations of liability specified herein.
46. The COUNTY under the terms of the MDA GRANT was limited in the selection and contract terms
with the PESTICIDE APPLICATOR. The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or
liability against the COUNTY for any material defects, errors, mistakes, negligence, or omissions in the
PESTICIDE APPLICATOR RFQ, the bid specifications, the bid procedure, the bid award process, the
PESTICIDE APPLICATOR contract negotiation process, the preparation or execution of the PESTICIDE
APPLICATOR contract, or any other errors or mistakes of fact by the COUNTY in the selection of the
PESTICIDE APPLICATOR. The MUNICIPALITY agrees that at all times and for all purposes under this
AGREEMENT the PESTICIDE APPLICATOR relationship to the COUNTY shall be that of an
INDEPENDENT CONTRACTOR and not a COUNTY AGENT as defined herein. The MUNICIPALITY
hereby agrees to waive any CLAIM(S) or liability against the COUNTY based in any manner upon any act or
omission of the PESTICIDE APPLICATOR.
CANCELLATION
47. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
48. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
49. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM acreage
for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-WIDE SPRAY
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
COSTS/ACRE will exceed $32.00 per acre, the COUNTY shall notify the MUNICIPALITY in writing of the
then anticipated cost. The MUNICIPALITY, within five days after the receipt of such notice, but in no event
after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by a written notice to the
COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher than anticipated
costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the MUNICIPALITY paid to the
COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is obligated, shall be returned to
the MUNICIPALITY. The COUNTY may also unilaterally cancel this AGREEMENT should it appear that the
AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed $32.00 and shall have no further obligation
to the MUNICIPALITY under this AGREEMENT.
The MUNICIPALITY acknowledges that the MDA may cancel the MDA GRANT at any time. In the
event the MDA GRANT is canceled or otherwise materially reduced in scope for any reason, including but
not limited to a lack of funding, a determination that AERIAL SPRAYING effort is too late to be effective, or
any other operational reason, or should the expectations of the MDA GRANT REIMBURSEMENT materially
change anytime before the SPRAY DAY(S), the COUNTY may also cancel this AGREEMENT by giving the
MUNICIPALITY written notice of such cancellation.
2000 PROGRAM CHANGES
50. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to cancel
this AGREEMENT or otherwise change the total number acres or the configuration of any MUNICIPALITY
SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the COUNTY incurring any
PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated to pay to the COUNTY the
full amount of any and all PENALTIES incurred by the COUNTY. The MUNICIPALITY agrees that any
amount due and owing to the COUNTY as PENALTIES shall be above and beyond any other amounts
otherwise due and owing to the COUNTY under this AGREEMENT. The MUNICIPALITY shall not be
permitted to add, delete, substitute or change the configuration of any MUNICIPALITY SPRAY BLOCKS as
shown on Attachment "A" without the written approval of the COUNTY and the MDA.
FORCE MAJEURE
51. Neither the COUNTY nor the MDA shall be liable to the MUNICIPALITY or any person for failure or
delay in performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or delay
is caused by circumstances beyond the control of the COUNTY or the MDA, including, without limitation,
failures resulting from weather delays, premature or delayed development of the Gypsy Moth caterpillars,
high winds, unsafe flying conditions, circumstances that make the effectiveness of AERIAL SPRAYING to
suppress the infestation less than optimal, any material changes in the MDA GRANT and/or
REIMBURSEMENT schedules, accidents, labor stoppages, war, any default by the PESTICIDE
APPLICATOR, the inability to secure necessary materials or labor, governmental acts or regulations, acts of
God, or other causes beyond the COUNTY'S or MDA'S control, whether or not similar to those above. The
COUNTY agrees that, in any such event, the COUNTY shall communicate that fact to the MUNICIPALITY
when such fact(s) becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
52. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance coverage(s),
waivers of liability, liabilities, audit requirements, record-keeping requirements, any MUNICIPALITY payment
obligations to the COUNTY, 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 before the cancellation or completion of this AGREEMENT, shall
survive the cancellation or completion of this AGREEMENT. The expiration, cancellation, or termination of
this AGREEMENT shall be without prejudice to any rights or claims of either PARTY against the other and
shall not relieve either PARTY of any obligations which, by their nature, survive expiration or termination of
this AGREEMENT.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16
2000 PROGRAM COMPLETION
53. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be suppressed
by AERIAL SPRAYING, or when 60% or more of the forest canopy has already been defoliated as
determined by the COUNTY or the MDA.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
54. The PARTIES reserve to themselves any rights and obligations related to the provision of any and
all of each PARTY'S respective governmental services, authority, responsibilities, and obligations. Except
as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to, create,
diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other
legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity,
or authority of either the MUNICIPALITY or the COUNTY to any other person or PARTY.
55. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties under
this AGREEMENT to any other person and/or public or private corporation, entity, or organizations of any
kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
56. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the
COUNTY Board of Commissioners and the governing Township Board of the MUNICIPALITY. The
approval and terms of this AGREEMENT shall be entered in the official minutes and proceedings of the
COUNTY Board of Commissioners and governing Township Board of the MUNICIPALITY and shall also be
filed with the office of the Clerk for the COUNTY and the MUNICIPALITY. In addition, this AGREEMENT,
and any subsequent amendments, shall be filed with the Secretary of State for the State of Michigan by the
COUNTY and shall not become effective or implemented prior to its filing with the Secretary of State.
57. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing Township Board of the
MUNICIPALITY. This AGREEMENT shall not be changed, supplemented, or amended except as provided
for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend
or modify this AGREEMENT.
AUDIT AND RECORD ACCESS
58. As required by the MDA GRANT, the MDA and/or the COUNTY shall have the right to audit the
MUNICIPALITY from time to time, after reasonable written notice of its intended audit, in order to assess the
MUNICIPALITY'S compliance with the terms of this AGREEMENT and to determine whether the
MUNICIPALITY is following generally accepted accounting standards and/or complying with all MDA
GRANT audit requirements and standards. The MUNICIPALITY shall similarly permit authorized State or
federal Agents to make one or more such audits and program reviews.
59. The MDA and/or COUNTY shall have the right to initiate any audit for a period of three (3) years
after the expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be
concluded or otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
60. The project will be subject to an audit by the State prior to or after the final payment. In addition,
Grantees that receive $25,000 or more in federal financial assistance annually shall have an audit
performed in accordance with Federal Circular No. A-128. A copy of the audit is to be submitted to the
Grant Administrator.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 17
61. In conjunction with any audit the MUNICIPALITY shall permit the COUNTY and/or the MDA full and
complete availability and access to:
j. Any and all original personnel records, including, but not limited to, work evaluations,
references, wage records, time sheets and attendance records, of any MUNICIPALITY AGENTS,
as requested, for purposes of program evaluation, fiscal audit pertaining to this AGREEMENT.
k. All original records related to or necessary for determining any MUNICIPALITY
ADMINISTRATIVE COSTS or any MUNICIPALITY costs or expenses related to this AGREEMENT,
and/or any MUNICIPALITY costs or amounts submitted to the MDA for possible
REIMBURSEMENT.
REPAYMENT OF FUNDS RECEIVED BY MUNICIPALITY IN EXCESS OF ACTUAL MDA APPROVED
COSTS AND EXPENSES
62. The MUNICIPALITY agrees to repay the COUNTY, when and as requested, an amount equal to
any and all dollar amounts paid to the MUNICIPALITY by the COUNTY in connection with this
AGREEMENT which, based upon any audit finding or review of MUNICIPALITY'S records of actually
incurred and paid expenses, are determined by the MDA or the COUNTY to:
I. Have been either unreasonable and/or unnecessary MUNICIPALITY costs and expenses
and/or expenses which were not actually incurred and paid by the MUNICIPALITY in connection
with the 2000 PROGRAM. The MDA has defined "Reasonable Costs" as follows: A cost is
reasonable if, in it's nature and amount, it does not exceed that which would be incurred by a
prudent person under the circumstances prevailing at the time the decision was made to incur the
cost. In determining reasonableness of a given costs, consideration shall be given to: 1) whether
or not the items are necessary and reasonable for proper and efficient performance of the
agreement, and 2) Market prices for comparable goods or services, and 3) whether the
individuals concerned acted with prudence in the circumstances considering their responsibilities to
the governmental unit, its employees, the public at large, and the federal government.
m. Have been ineligible or inappropriate for the payment of any REIMBURSEMENT to
MUNICIPALITY under the terms and conditions of this AGREEMENT.
n. MUNICIPALITY repayment to the COUNTY, if any, as a result of audit findings or MDA or
COUNTY review of any MUNICIPALITY expenses shall be made by the MUNICIPALITY within
ninety (90) days following receipt of the final audit report or other such notice from the MDA and/or
the COUNTY. The MUNICIPALITY'S obligation to repay the COUNTY, as set forth in this section,
shall be absolute and unconditional and shall not be affected by the occurrence of either PARTY'S
default of any term or condition of this AGREEMENT nor shall any other occurrence or event
relieve, limit, or impair the obligation of the MUNICIPALITY to repay the COUNTY as provided for
herein. The MUNICIPALITY further agrees that the COUNTY may, at its sole option, recover any
such amounts by offsetting any amounts otherwise due and owing to the MUNICIPALITY by the
COUNTY.
MUNICIPALITY CONTRACTS FOR MERCHANDISE AND SERVICES
63. For purchases of services and merchandise made by the MUNICIPALITY or any MUNICIPALITY
sub-contractor against or in anticipation of REIMBURSEMENT under the MDA GRANT, prior approval must
be received from the MDA for any single items costing $1,000 or greater. A formal bid process must be
followed for items of $10,000 or greater. A formal process consists of preparing an RFQ or bid to be sent to
at least five possible bidders. The bid process must be carried out under the direction of the MDA or its
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 18
representative. The MUNICIPALITY shall choose the lowest priced responsive and responsible bidder that
meets the requirements of the bid in order to meet State and Federal procurement guidelines.
MUNICIPALITY WAGES
As required by the MDA GRANT, any contract executed between the MUNICIPALITY and a
contractor which requires or involves the employment of construction mechanics, defined as skilled or
unskilled mechanics, laborers, workmen, helpers, associates, or apprentices working on projects funded or
anticipated to be funded in any part from any REIMBURSEMENT from the MDA GRANT but not including
executive, administrative, professional, office or custodial employees, shall contain the following terms:
a. Rates of wages and fringe benefits to be paid to each class of construction mechanics by
the MUNICIPALITY and all their contractors shall not be less than the wage and fringe benefit rates
prevailing in the locality in which the work is to be performed.
b. In addition, the MUNICIPALITY and all of their contractors agree to comply with all
pertinent provisions of PA 166 of 1965, "An Act to require prevailing wages and fringe benefits on
State projects; to establish the requirements and responsibilities of contracting agents and bidders;
and to prescribe penalties."
SUCCESSORS AND ASSIGNS BOUND
64. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of them.
NO THIRD-PARTY BENEFIT
65. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to be
subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of any
person, including, but not limited to, any MUNICIPALITY Resident, any Resident's legal representative, any
organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
66. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
NOTICES
67. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or 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.
CHOICE OF LAW
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 19
68. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the context
so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
69. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
70. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
71. This AGREEMENT, consisting of a total of twenty-four (24) pages, including the three pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete and
entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all prior
agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further 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 MUNICIPALITY and the COUNTY
in any way related to the subject matter hereof, except as expressly stated herein.
72. For and in consideration of the mutual promises, acknowledgments, and representations set forth in
this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 20
CHESTER W. KOOP,
Supervisor
-
(
ALISON K. KALCEC,
BY:
BY:
,/`
DATE: DATE:
IN WITNESS WHEREOF, L. BROOKS PATTERSON,
County Executive of the COUNTY OF OAKLAND,
hereby acknowledges that he has been authorized by
a resolution of the Oakland County Board of
Commissioners, a certified copy of which is attached,
to execute this AGREEMENT on behalf of the
COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
BY:
L. BROOycS PATTERSON,
County Becutive
WITNESSED:
BY:
IN WITNESS WHEREOF, CHESTER W. KOOP,
Supervisor of the TOWNSHIP OF ROSE, hereby
acknowledges that he has been authorized by a
resolution of the Township Board of ROSE, a certified
copy of which is attached, to execute this
AGREEMENT on behalf of the MUNICIPALITY, and
hereby accepts and binds the MUNICIPALITY to the
terms and conditions of this AGREEMENT on this
/5z1-- day of /------ehrziettry , 2000.
TOWNSHIP OF ROSE:
a Michigan Constitutional and Municipal Corporation
Clerk
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 21
YEARoi;
ATTACHMENT 'A'
Page__. of 3_
MUNICIPALITY SPRAY BLOCKS DATE I r."?) / /
TOWNSHIP - Treatment Acreage Summary
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County Coordinator Township
Michigan Department of Agriculture (MON I Pesticide & Plant Pest Management Division
Box 30017, Lansing, MI 481011 (517) 3734751 FAX (517) 331-4540
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MUNICIPALITY PARTICIPATION AGREEMENT -2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - ATTACHME T "A"-
_ 40
Page
MUNICIPALITY MUNICIPALITY SPRAY
MUNICIPALITY PARTICIPATION AGREEMENT - 2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - ATTACHMENT "A"
Page,/_ of 3
MUNICIPALITY SPRAY LOCKS
ROSE TOWNSHIP BOARD OF TRUSTEES
SPECIAL MEETING
January 26, 2000
The following residents were present.
Donald Walls II
Bruce Proper
Supervisor Koop called the special meeting of the Rose Township Board of Trustees to order at
7:00 P.M. at the Rose Township Hall, 204 Franklin Street, Holly, Michigan.
Roll Call: Present — Gordon, Kalcec, Koop, Lopez, Slaughter.
Absent — None.
Also Present — Parvin Lee, Township Attorney.
APPROVAL OF AGENDA
Moved by Lopez, seconded by Gordon, motion carried, to approve the agenda of the special
meeting on January 26, 2000 with the following additions: 4. Gypsy Moth Spraying Contract,
5.B. Mileage Reimbursement with all other items moving down one number.
GYPSY MOTH SPRAYING CONTRACT
Moved by Slaughter, seconded by Gordon, motion carried, to authorize the Clerk and Supervisor
to sign the contract for the Gypsy Moth Program for 2000 with the cost not to exceed $6,000.00.
Areas to be sprayed are Tipsico Lake, Taylor Lake and Big School Lot Lake.
TOWNSHIP POLICY AND PROCEDURES
Personnel — Supervisor and Treasurer
The board went through the balance of the policies and made corrections and changes.
Mileage Reimbursement
Moved by Slaughter, seconded by Gordon, motion carried, to require all township employees
and elected officials to break down their mileage by category, total trips and total mileage
effective 2/1/2000.
RETIREMENT ORDINANCE — CLERK, TRUSTEE GORDON, P. LEE
Parvin Lee, Township Attorney, distributed an ordinance for Officer and Employee Benefits for
consideration by the board.
Rose Township Board of Trustees Special Meeting January 26, 2000
Al' POINTIVIEN IS
Moved by Supervisor Koop, seconded by Kalcec, motion failed, to nominate Andrew Kivari to
the Planning Commission to fill the vacancy created by the decision of Jim Porter not to be re-
appointed to the Planning Commission.
Voting yes — Koop, Kalcec.
Voting no — Lopez, Gordon, Slaughter.
Moved by Lopez, seconded by Kalcec, motion carried, to appoint Michael Brooks to the Zoning
Board of Appeals to fill a vacancy created by the resignation of Ken Kapanka.
PUBLIC COMMENTS
D. Walls asked about any policy regarding Planning Commission members talking to the press.
He felt that compensation in lieu of Blue Cross is unfair because it is taxed.
B. Proper felt that mother-in-law and father-in-law should be included in the five day
bereavement allowance.
ADJOUNMENT
Moved by Gordon, seconded by Slaughter, motion carried, to adjourn the meeting at 9:20 P.M.
Approved/Corrected Patricia A. Walls, Deputy Clerk
2
CHARTER TOWNSHIP OF SPRINGFIELD
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
RECEIVED
JEC 2 2 1999
SPRINGFIELD TOWNSHIP
This CHARTER TOWNSHIP OF SPRINGFIELD 2000 GYPSY MOTH JOINT OPERATING AGREEMENT
(hereafter "AGREEMENT") is made and entered into between the CHARTER TOWNSHIP OF
SPRINGFIELD, a Michigan Constitutional and Municipal Corporation whose address is 650 Broadway, P.O.
Box 38, Davisburg, Michigan 48350-0038 (hereafter the "MUNICIPALITY") and the COUNTY OF
OAKLAND, a Michigan Constitutional and Municipal Corporation, whose address is 1200 North Telegraph
Road, Pontiac, Michigan 48341 (hereafter the "COUNTY"). In this AGREEMENT, the COUNTY and/or the
MUNICIPALITY may also be referred to as a "PARTY" or the "PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree filled
landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program to
help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY, through this AGREEMENT, provides LOCAL UNITS, an opportunity to join this County-wide
program and realize economies of scale, and cost savings, that they could not achieve independently. This
JOINT OPERATING AGREEMENT is entitled the 2000 Oakland County Gypsy Moth Suppression Program
(hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with an MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor in an attempt to minimize MUNICIPALITY tree damage.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached, incorporated,
and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT", "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS",and "2000 PROGRAM" as defined above, the following are also
defined terms in this AGREEMENT:
a. "AGENT" or "AGENTS", when referred to as either an AGENT or AGENTS of the COUNTY
(e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall be defined
to include any and all of that PARTY'S officers, elected officials, appointed officials, directors, board
members, council members, authorities, boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons' successors
or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in
their personal, representative, or official capacities), and/or any and all persons acting by, through,
under, or in concert with any of them. "AGENT' shall also include any person who was an AGENT
any time during this AGREEMENT but for any reason is no longer employed, appointed, or elected
in that capacity. "AGENT", as defined for any purpose in this AGREEMENT, shall NOT include the
PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to coordinate
and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under this
AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief or
damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct, indirect
or consequential, whether based upon any alleged violation of the constitution (federal or state), any
statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise,
and/or whether commenced or threatened and arising out of any alleged breach of any duty by the
MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this AGREEMENT or
are based on or result in any way from the MUNICIPALITY'S participation in the 2000PROGRAM or
this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and licensed in the State of Michigan. The PESTICIDE APPLICATOR shall
be responsible for the AERIAL SPRAYING, as defined herein, and as defined herein the
PESTICIDE APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers,
boards, directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all persons
acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for under
this AGREEMENT.
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to COUNTY approval, and the required property
owner and/or resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The
MUNICIPALITY SPRAY BLOCKS are specifically identified and described in Attachment "A".
9. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined as
any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in connection
with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be determined by
multiplying the total number of acres contained in all MUNICIPALITY SPRAY BLOCKS times the
"AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre
under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL
UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE SPRAY COST/ACRE shall
be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE
APPLICATOR in connection with all 2000 PROGRAM AERIAL SPRAYING (in all participating
LOCAL UNITS, including the MUNICIPALITY) by the total number of acres within the County of
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR in connection with the
2000 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL
SPRAYING by the PESTICIDE APPLICATOR shall be determined by the established pesticide-flow
rates and spray and volume measures taken on any SPRAY DAY(S). The determination of the total
number of acres within the County of Oakland treated by AERIAL SPRAYING by the PESTICIDE
APPLICATOR shall be final. The COUNTY anticipates that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will be less than $32.00 per acre. However, until the total 2000 PROGRAM acreage
to be sprayed is known, the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE can only be
estimated. If this cost/acre should exceed $32.00 per acre, the PARTIES may cancel this
AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPRAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE APPLICATOR
is scheduled by the COUNTY and the PESTICIDE APPLICATOR. SPRAY DAY(S), in all
participating LOCAL UNITS, including the MUNICIPALITY, are expected to occur sometime
between MAY 5, 2000 and June 10, 2000, depending upon such factors as the daily caterpillar
development reports, the weather, temperature, wind conditions, and other last-minute variables
upon which any decision to spray or postpone AERIAL SPRAYING must be based. The COUNTY
and the PESTICIDE APPLICATOR, shall decide the commencement and sequence of all AERIAL
SPRAYING and SPRAY DAY(S).
j. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related legal
obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of any
MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as provided
below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws any
MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage from
that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
, when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM, will
be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the AERIAL
SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce, withdraw,
or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may subject the
COUNTY to certain "PENALTIES" under its contract with the PESTICIDE APPLICATOR. Decisions
by the COUNTY, or any governmental authority other than the MUNICIPALITY to exclude or
prohibit AERIAL SPRAYING of any partial or entire MUNICIPALITY SPRAY BLOCK shall not be
considered a decision by the MUNICIPALITY to change, withdraw, or cancel the AERIAL
SPRAYING of any MUNICIPALITY SPRAY BLOCK for the purposes of assessing any PENALTIES.
COUNTY COORDINATION RESPONSIBILITIES
2. The COUNTY will enter into a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR, including the development of the required Request for Quotation ("RFQ"),
solicitation and review of all bids, and the final selection and contracting with a qualified PESTICIDE
APPLICATOR to conduct the AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the
2000 PROGRAM. The pesticide applicator contract shall include the following insurance requirements.
INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or
any potential subcontractors:
a. Worker's Compensation Coverage as required by Michigan statute.
Coverage B, Employer's Liability, in the minimum amount of $500,000.00
per coverage.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
b. If you are a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Comprehensive General Liability Coverage in the minimum amount of
$2,500,000.00 combined single limit and $5,000,000.00 aggregate
coverage covering the following exposures:
premise operation
personal injury
products and completed operations
iv. contractual liability - specifically addressing this contract.
c. If you are not a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Your aircraft liability coverage endorsed to cover premises liability in the
minimum amount of $2,500,000.00 combined single limit per occurrence.
d. Auto Fleet Liability in the minimum amount of $500,000.00 per occurrence
and providing coverage for fuel tenders, if applicable, and coverage for
Michigan No-Fault.
e. Aircraft Liability Coverage in the minimum amount of $2,500,000.00
combined single limit per occurrence and $5,000,000.00 in the aggregate
and must specifically contemplate coverage for aerial spraying. In
addition, coverage for Chemical Drift must be provided with the following
limits:
i. $100,000.00 per person
ii. $300,000.00 per accident (no aggregate)
iii. $100,000.00 per accident property damage
iv. $100,000.00 property damage aggregate.
v. Coverage must include damage to property being treated and the
residential exclusion must be removed. This shall be endorsed to
cover target application.
vi. You also must provide an "Additional Interest Endorsement"
issued naming the County of Oakland and each of the following
local governmental entities (hereafter individually "Municipality" or
collectively "Municipalities") located within the County of Oakland
which will be participating in any resulting Contract with any bidder
as there are going to be Spray Blocks located within these
Municipalities and the County will be contracting with each of the
following Municipalities for participation in this Program.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
Charter Township of Highland, Charter Township of Orion,
Township of Rose, Charter Township of Springfield, Charter
Township of White Lake, and City of Rochester Hills.
vii. The "Additional Interest Endorsement" required in the Aircraft
Liability Insurance for the County and each of the Municipalities
shall also include any and all of the County's and each
Municipality's elected officials, appointed officials, officers,
employees, volunteers, boards, commissions, councils, and
committees.
f. The County shall receive the appropriate certificates of insurance
providing evidence of the above coverage(s) prior to work being
performed and which shall provide a minimum of 30 days notice to the
County of any cancellation or material change in coverage(s). All
Certificates of Insurance, and/or duplicate policies from CONTRACTOR
shall contain the following clauses:
i. "The insurance CONTRACTOR(s) issuing the policy or policies
shall have no recourse against COUNTY for payment of any
premiums or for assessments under and form of policy."
ii. "Any and all deductibles in the above described insurance policies
shall be assumed by and be for the account of, and at the sole risk
of, the CONTRACTOR."
iii. "There will be no additional exclusions running to the additional
insured based upon any actions or activities of the named
insured."
All required insurance will be carried with insurance companies
authorized to do business in the State of Michigan.
h. The CONTRACTOR agrees that the COUNTY shall be legally subrogated
to any rights to recover and/or benefits the CONTRACTOR may have in
any insurance policy and to the full extent of any payment under any
insurance policy is required to make the COUNTY whole for any loss and,
and the CONTRACTOR shall cooperate, and perform any act necessary
to secure such rights on behalf of the COUNTY.
i. The CONTRACTOR agrees that should it fail to satisfy any insurance
obligation as described in Addendum A, the COUNTY, at its sole
discretion, shall have the right to cancel any Contract with the bidder or
Contractor.
Under no circumstances, shall the County have any liability or responsibility for the purchase,
transportation, storage, disposal, or security of any insecticide. In the event of any an order to
cease aerial spraying activities, the County shall not be required to purchase, receive, or be
responsible for any unused insecticide from the Contractor.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
g.
L.
3. The COUNTY shall act as the fiscal agent for the MUNICIPALITY, subject to the terms of this
AGREEMENT, with regard to the financing and initial payment to the PESTICIDE APPLICATOR for all
MUNICIPALITY SPRAY COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all
MUNICIPALITY SPRAY COSTS shall always remain the eventual, final, and exclusive financial
responsibility of the MUNICIPALITY.
4. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT.
5. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2000
PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information to
assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000 PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program options,
the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth infestation to be
available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information to assist the
MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY SPRAY
BLOCKS under the 2000 PROGRAM.
d. Provide the MUNICIPALITY with all necessary operational forms so the MUNICIPALITY
can thoroughly understand the program requirements of this AGREEMENT. The COUNTY shall
also provide procedures and/or operating instructions related to MUNICIPALITY SPRAY BLOCK
marking requirements so that the MUNICIPALITY can appropriately train and assign
MUNICIPALITY AGENTS to perform these obligations.
6. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media. The
COUNTY will provide information and answer questions from the public, community and citizen groups,
LOCAL UNITS, and the media about the Gypsy Moth infestation and AERIAL SPRAYING treatment under
the 2000 PROGRAM.
7. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for
future treatment planning and programs.
8. The COUNTY shall conduct the post treatment evaluation and survey of a random sample of
treated MUNICIPALITY SPRAY BLOCKS and property owners from the treated MUNICIPALITY SPRAY
BLOCKS, using a questionnaire and survey tools to determine the percentage of foliar preservation.
9. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to capture
trends for future program planning.
10. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are necessary
to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL SPRAYING of
all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
11. The MUNICIPALITY warrants that only those such blocks that have been surveyed for egg mass
density, which in the judgment of the MUNICIPALITY meet the eligibility criteria and are located entirely
within the MUNICIPALITY are included in the MUNICIPALITY SPRAY BLOCKS which are further described
in Attachment "A".
12. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet its criteria for inclusion, or which cannot be safely or
effectively treated by AERIAL SPRAYING as decided by the PESTICIDE APPLICATOR.
13. After COUNTY approval of MUNICIPALITY SPRAY BLOCKS, the permission and approval of all
residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS shall also be
sought. The COUNTY shall notify all property owners in the MUNICIPALITY SPRAY BLOCKS at least 30
days before the projected SPRAY DAY(S) of the planned AERIAL SPRAYING. For these purposes, the
MUNICIPALITY agrees to provide, in such quantities as requested, MUNICIPALITY resident and/or property
owner mailing lists, mailing labels, and any other identifying information necessary to facilitate
communications between the COUNTY COORDINATOR and any resident and/or property owner in any
MUNICIPALITY SPRAY BLOCK.
14. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call or
objection with the individual's name, address, telephone number and parcel number. The MUNICIPALITY
shall promptly forward copies of any entries into such written logs and records to the COUNTY
COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be scheduled for
AERIAL SPRAYING after the objection of the resident or property owner has been received. The COUNTY
COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure that the 2000 PROGRAM is
completely understood and verify that the property owner does not wish their property to be included in the
AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any property owner's exclusions
from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust
MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
15. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or between
any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S) the
MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes to
the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report any
additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be mapped
by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING. Maps
shall be accompanied by a written summary that identifies for each proposed MUNICIPALITY SPRAY
BLOCK the number of homes and the number of acres to be sprayed within each MUNICIPALITY SPRAY
BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY
BLOCKS for public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
16. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The MUNICIPALITY
agrees to make the necessary staffing and planning arrangements and adjust, as necessary, any
MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday SPRAY DAY(S)), to
meet its SPRAY DAY(S) obligations on such short notice.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
17. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall be responsible for assuring that all non-spray areas are adequately marked off with balloons so that
the pilot conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY BLOCKS
from adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt removal of all
balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY DAY(S)
operations have been completed.
18. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone for
communicating with the COUNTY COORDINATOR. Except for marking balloon related supplies (e.g.,
balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for providing all
MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK maps,
transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole judgment,
deems are required or beneficial for the completion of any MUNICIPALITY responsibilities under this
AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
19. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all federal,
state, and local laws, ordinances, regulations, and agency requirements in any manner affecting the work or
performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and assist in securing
all necessary certificates and permits from such public authorities as may be required for AERIAL
SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations for safety
precautions under the exclusive control and supervision of any other governmental agency or entity. The
MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary for the
protection of persons and property which may be affected by AERIAL SPRAYING, and will notify the
COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any potentially
dangerous situation. In case of an emergency affecting the safety of any persons or property, the
MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by attempting
to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
20. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON".
The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2000
PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
21. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified MUNICIPALITY
AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this AGREEMENT. The
MUNICIPALITY AGENTS shall be employed and assigned based on appropriate qualifications and other
factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it shall be solely responsible for
furnishing all MUNICIPALITY AGENTS with all job instructions, job descriptions and job specifications and
shall otherwise control, supervise, train or direct MUNICIPALITY AGENTS in the performance of any
MUNICIPALITY duties or obligations under this AGREEMENT. The MUNICIPALITY agrees that the
COUNTY shall have no liability or obligation in this regard.
22. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
23. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall be
considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees that
it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or future
wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or
any other statutory or contractual right or benefit based on or in any way related to any MUNICIPALITY
AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S statutory,
contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY AGENT.
The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any and all
CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any COUNTY AGENT
by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise from, or are in any way
related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other employment-related or
based rights, including, but not limited to, those described in this Paragraph.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
24. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
25. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide any
financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset any
MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2000
PROGRAM except as expressly provided for in this AGREEMENT. The MUNICIPALITY agrees that any
and all such MUNICIPALITY SPRAY COSTS and any PENALTIES, shall at all times remain the sole
financial responsibility of the MUNICIPALITY.
26. The MUNICIPALITY agrees that any amount due and owing to the COUNTY under this AGREEMENT,
which is still unpaid at the time the COUNTY distributes funds to the MUNICIPALITY from the Delinquent
Tax Revolving Fund (DTRF), the COUNTY shall be entitled to reduce, set-off, and permanently retain any
amount due to the MUNICIPALITY from Delinquent Tax Revolving Fund (DTRF) by any such amount then
still due and owing the COUNTY pursuant to this AGREEMENT.
COUNTY INVOICES TO MUNICIPALITY
28. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY COSTS. The MUNICIPALITY agrees to
pay the full amount shown on or before May 1, 2000, or no later than 15 days after the invoice date,
whichever date is later.
MUNICIPALITY RECORD KEEPING
29. The MUNICIPALITY shall complete all documents as required and cooperate with the COUNTY in
supplying all necessary or required information to the COUNTY on a timely basis.
MUNICIPALITY PROVIDED INSURANCE
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
30. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under this
AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any MUNICIPALITY
AGENT, or by anyone for whose acts any of them may be liable.
a. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have insurance
or participate in a mandatory state fund to cover the benefits payable to any MUNICIPALITY
AGENT.
b. Liabilities for damages because of bodily injury, occupational sickness or disease, or death
of his employees.
c. Liabilities for damages because of bodily injury, sickness or disease, or death of any person
other than any MUNICIPALITY AGENT, subject to limits of liability of not less than $300,000 each
occurrence and, when applicable $300,000 annual aggregate, for non-automobile hazards and as
required by law for automobile hazards.
d. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each occurrence
for non-automobile hazards and as required by law for automobile hazards.
e. Insurance for the preceding two (2) subparagraphs non-automobile hazards on a combined
single limit of liability basis shall not be less than $300,000 each occurrence and when applicable,
$300,000 annual aggregate. The insurance shall be written for not less than any limits of liability
herein specified or required by law, whichever is greater, and shall include contractual liability
insurance as applicable to the MUNICIPALITY'S obligations under the indemnification provisions of
this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
31. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by the
MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
32. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
DISCLAIMER OF ANY COUNTY WARRANTY
33. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and enter
this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to participate. In
making this decision, the MUNICIPALITY has relied entirely upon its own investigation, and/or has had
ample opportunity to conduct such an investigation, of all material facts, applicable laws, and all such other
circumstances that might influence upon the MUNICIPALITY'S decision to enter this AGREEMENT.
34. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING component
of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to any tree by
Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy Moths, or that
the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or effective, or the
safest and most effective means of suppressing the Gypsy Moth infestation, or any other performance-
based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of
the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING for the delivery of
insecticide, the choice of insecticide, the insecticide application rates, the timing of such applications, etc.,
have been established under the terms of this AGREEMENT in which the MUNICIPALITY has voluntarily
consented to participate and assume all risks described and outlined in this AGREEMENT.
LIMITATION OF LIABILITY
35. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either PARTY
or any third person, whether in an action in contract or tort, whether or not the other PARTY has been
advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder shall in no
event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the COUNTY.
This AGREEMENT is intended to allocate the risks between the COUNTY and the MUNICIPALITY, and the
PARTIES agree that the allocation of each PARTY'S efforts, costs, and obligations under this AGREEMENT
reflect this allocation of risk and the limitations of liability specified herein.
36. The COUNTY was limited in the selection and contract terms with the PESTICIDE APPLICATOR.
The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or liability against the COUNTY for any
material defects, errors, mistakes, negligence, or omissions in the PESTICIDE APPLICATOR RFQ, the bid
specifications, the bid procedure, the bid award process, the PESTICIDE APPLICATOR contract negotiation
process, the preparation or execution of the PESTICIDE APPLICATOR contract, or any other errors or
mistakes of fact by the COUNTY in the selection of the PESTICIDE APPLICATOR. The MUNICIPALITY
agrees that at all times and for all purposes under this AGREEMENT the PESTICIDE APPLICATOR
relationship to the COUNTY shall be that of an INDEPENDENT CONTRACTOR and not a COUNTY
AGENT as defined herein. The MUNICIPALITY hereby agrees to waive any CLAIM(S) or liability against
the COUNTY based in any manner upon any act or omission of the PESTICIDE APPLICATOR.
CANCELLATION
37. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
38. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
39. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM acreage
for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will exceed $32.00 per acre, the COUNTY shall notify the MUNICIPALITY in writing of the
then anticipated cost. The MUNICIPALITY, within five days after the receipt of such notice, but in no event
after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by a written notice to the
COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher than anticipated
costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the MUNICIPALITY paid to the
COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is obligated, shall be returned to
the MUNICIPALITY. The COUNTY may also unilaterally cancel this AGREEMENT should it appear that the
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed $32.00 and shall have no further obligation
to the MUNICIPALITY under this AGREEMENT.
2000 PROGRAM CHANGES
40. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to cancel
this AGREEMENT or otherwise change the total number acres or the configuration of any MUNICIPALITY
SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the COUNTY incurring any
PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated to pay to the COUNTY the
full amount of any and all PENALTIES incurred by the COUNTY. The MUNICIPALITY agrees that any
amount due and owing to the COUNTY as PENALTIES shall be above and beyond any other amounts
otherwise due and owing to the COUNTY under this AGREEMENT. The MUNICIPALITY shall not be
permitted to add, delete, substitute or change the configuration of any MUNICIPALITY SPRAY BLOCKS as
shown on Attachment "A" without the written approval of the COUNTY.
FORCE MAJEURE
41. The COUNTY shall not be liable to the MUNICIPALITY or any person for failure or delay in
performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or delay is
caused by circumstances beyond the control of the COUNTY, including, without limitation, failures resulting
from weather delays, premature or delayed development of the Gypsy Moth caterpillars, high winds, unsafe
flying conditions, circumstances that make the effectiveness of AERIAL SPRAYING to suppress the
infestation less than optimal, accidents, labor stoppages, war, any default by the PESTICIDE APPLICATOR,
the inability to secure necessary materials or labor, governmental acts or regulations, acts of God, or other
causes beyond the COUNTY'S control, whether or not similar to those above. The COUNTY agrees that, in
any such event, the COUNTY shall communicate that fact to the MUNICIPALITY when such fact(s)
becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
42. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance coverage(s),
waivers of liability, liabilities, audit requirements, record-keeping requirements, any MUNICIPALITY payment
obligations to the COUNTY, 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 before the cancellation or completion of this AGREEMENT, shall
survive the cancellation or completion of this AGREEMENT. The expiration, cancellation, or termination of
this AGREEMENT shall be without prejudice to any rights or claims of either PARTY against the other and
shall not relieve either PARTY of any obligations which, by their nature, survive expiration or termination of
this AGREEMENT.
2000 PROGRAM COMPLETION
43. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be suppressed
by AERIAL SPRAYING, a. when 60% or more of the forest canopy has already been defoliated as
determined by the COUNTY.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
44. The PARTIES reserve to themselves any rights and obligations related to the provision of any and
all of each PARTY'S respective governmental services, authority, responsibilities, and obligations. Except
as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to, create,
diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other
legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity,
or authority of either the MUNICIPALITY or the COUNTY to any other person or PARTY.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
45. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties under
this AGREEMENT to any other person and/or public or private corporation, entity, or organizations of any
kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
46. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the
COUNTY Board of Commissioners and the governing Township Board of the MUNICIPALITY. The
approval and terms of this AGREEMENT shall be entered in the official minutes and proceedings of the
COUNTY Board of Commissioners and governing Township Board of the MUNICIPALITY and shall also be
filed with the office of the Clerk for the COUNTY and the MUNICIPALITY. In addition, this AGREEMENT,
and any subsequent amendments, shall be filed with the Secretary of State for the State of Michigan by the
COUNTY and shall not become effective or implemented prior to its filing with the Secretary of State.
47. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing Township Board of the
MUNICIPALITY. This AGREEMENT shall not be changed, supplemented, or amended except as provided
for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend
or modify this AGREEMENT.
AUDIT AND RECORD ACCESS
48. The COUNTY shall have the right to audit the MUNICIPALITY from time to time, after reasonable
written notice of its intended audit, in order to assess the MUNICIPALITY'S compliance with the terms of
this AGREEMENT and to determine whether the MUNICIPALITY is following generally accepted accounting
standards.
49. The COUNTY shall have the right to initiate any audit for a period of three (3) years after the
expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be concluded or
otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
SUCCESSORS AND ASSIGNS BOUND
50. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of them.
NO THIRD-PARTY BENEFIT
51. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to be
subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of any
person, including, but not limited to, any MUNICIPALITY resident, any legal representative, any
organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
52. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
NOTICES
53. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or 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.
CHOICE OF LAW
54. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the context
so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
55. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
56. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
57. This AGREEMENT, consisting of a total of nineteen (19) pages, including the four pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete and
entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all prior
agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further 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 MUNICIPALITY and the COUNTY
in any way related to the subject matter hereof, except as expressly stated herein.
58. For and in consideration of the mutual promises, acknowledgments, and representations set forth in
this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
BY:
L. BR KS PATTERSON,
CHARTER TOWNSHIP OF SPRINGFIELD:
a Michigan Constitutional and Municipal Corporation
BY:
COLLIN W. WALLS,
Supervisor
DATE:
BY:
IN WITNESS WHEREOF, L. BROOKS PATTERSON,
County Executive of the COUNTY OF OAKLAND,
hereby acknowledges that he has been authorized by
a resolution of the Oakland County Board of
Commissioners, a certified copy of which is attached,
to execute this AGREEMENT on behalf of the
COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
IN WITNESS WHEREOF, COLLIN W. WALLS,
Supervisor of the CHARTER TOWNSHIP OF
SPRINGFIELD, hereby acknowledges that he has
been authorized by a resolution of the Township
Board of SPRINGFIELD, a certified copy of which is
attached, to execute this AGREEMENT on behalf of
the MUNICIPALITY, and hereby accepts and binds
the MUNICIPALITY to tIMerms and conditions of this
GREEMENT on this /y day of
, 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
County Executive
WITNESSED:
BY:
DATE:
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
MINUTES OF REGULAR MEETING
HELD JANUARY 13, I1O1L
Nancy Strole, Clerk Townshipof Springfield
Form M- 1 -PT The Regie Press, Inc nt, Mtchigan
Call to Order: Supervisor Coilins Wails called the January 13. 2000 regular meeting
to order at 7:30 p.m. at the Springfield Township Hall, 650 Broadway. Davisburg..
Michigan 48350.
Roll Call:
Township Board Present
Collin W. Walls Supervisor
Lois J. Stiles Treasurer
Richard Miller Trustee
Elaine Field-Smith Trustee
Margaret A. Bloom Trustee
Dennis Vallad Trustee
Nancy Strole Clerk
Others Present:
Gregory Need
Charles Oaks
Mary Oosterhof
Agenda Additions & Changes:
Township Attorney
Township Fire Chief
Township Planning Coordinator
Rename items #2 under Old Business: Rezoning Request. Davisburg. Road and Dixie
Highway: Continuation of the Second Reading on C2/, Report and Recommendation
from Planning Commission on OS, and First Reading on OS.
Public Comment:
Tom Weiler. 9291 Hillcrest, felt that it was important the Township take care of their
youths as well as their senior citizens.
Consent Agenda:
Treasurer Stiles moved to approve the January 13, 2000 Consent Agenda as
presented. Trustee Bloom supported the motion. Vote on the motion. Yes:
Walls, Stiles, Miller, Field-Smith, Bloom, Vallad and Strole; no: none; the
motion carried by a 7 to 0 vote.
a) Approval of Minutes: December 9, 1999 Regular Meeting
b) Acceptance of December Treasurer's Report
MINUTES OF REGULAR MEETING
HELD JANUARY 13, 2000
Township of Springfield Nancy Strole, Clerk
"
-Qrmfv1-1.r.7 The Riegle Pless, cc Funt. Michican
c) Receipt of December Reports: Building, Electrical, Plumbing,
Mechanical; Litigation; Fire; Ordinance
d) Authorization payment of bills as presented
e) Report on Y2K systems transition
Report on ZBA and Planning Commission Compensation
g) Adopt resolution opposing QVF unfunded mandate and demanding
compliance with state constitution
h) Proposed rezoning, First Reading: approximately 7.5 acres, part of P.I.
07-18-251-009. Authorize Clerk to public for Second Reading.
i) Authorize Supervisor and Clerk to enter into 2000 Oakland County
Gypsy Moth Program Agreement subject to Township Attorney review
and approval.
Receipt of status report on alleged Dangerous Building compliance
k)
Authorize retaining Code Enforcement, Inc. for selected Building
Department plan review and enforcement assistance.
1) Appoint Larry Zahn as the Planning Commission representative on
Zoning Board of Appeals
m) Communications:
o Receipt of letter from Representative Ruth Johnson regarding
ordinances regulating adult entertainment
o Receipt of letter from Michigan Department of Treasury regarding
Public Employee Health Care Fund Investment Act
Old Business:
1. Township Building Encroachment Correction
Supervisor Walls explained that in addition to the information received last month, the
Township received a correspondence between the Township Attorney and the owner of
the Candle Factory. It was the Township Attorney's recommendation that the Township
Board go into Closed Session to discuss purchasing land to eliminate the encroachment
by the Township on the Candle Factory property.
% Supervisor Walls moved that following the regular Old and New Business items,
the Township Board go into Closed Session to discuss land acquisition. Trustee
Vallad supported the motion. Vote on the motion. Yes: Walls, Stiles, Miller,
Field-Smith, Bloom, Vallad and Strole; no: none; the motion carried by a 7 to 0
vote.
Rezoning Request, Davisburg Road and Dixie Highway: Continuation
of the Second Reading on C2/, Report and Recommendation from
Planning Commission on OS, and First Reading on OS
The applicant (Springfield Investors. LLC) requested a rezoning of the two parcels at the
northwest corner of Dixie Highway and Davisburg Road from R-2 and Office Service
(OS) to C-2. The request wen: through the public hearing process and a recommendation
CHARTER TOWNSHIP OF WHITE LAKE
OAKLAND COUNTY, MICHIGAN
RESOLUTION
At a Special Meeting held the 11 th day of January, 2000, the
White Lake Township Board did hereby agree to enter into an
agreement with Oakland County to participate in the Oakland
County Gypsy Moth Suppression Program.
Motion by: Treasurer Spoor
Support by: Trustee Cathy Morgan Hall
Ayes: 6
Nays: 0
Abstention: 0
Absent: 1
I HEREBY CERTIFY, that I am duly elected and qualified Clerk of
the Charter Township of White Lake, County of Oakland, State of
Michigan, and the keeper of the records of the proceedings of
said resolution duly adopted by a majority vote at a special
meeting of the Township Board legally held January, 11, 2000, at
which a quorum was present.
fti .400-e<- Josephine Spen er, Clerk
CHARTER TOWNSHIP OF WHITE LAKE
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
This CHARTER TOWNSHIP OF WHITE LAKE MUNICIPALITY PARTICIPATION AGREEMENT-2000
OAKLAND COUNTY GYPSY MOTH PROGRAM (hereafter "AGREEMENT') is made and entered into
between the CHARTER TOWNSHIP OF WHITE LAKE, a Michigan Constitutional and Municipal Corporation
whose address is 7525 Highland Road, White Lake, MI 48383-2900 (hereafter the "MUNICIPALITY") and
the COUNTY OF OAKLAND, a Michigan Constitutional and Municipal Corporation, whose address is 1200
North Telegraph Road, Pontiac, Michigan 48341 (hereafter the "COUNTY"). In this AGREEMENT, the
COUNTY and/or the MUNICIPALITY may also be referred to as a "PARTY" or the "PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree filled
landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program to
help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY has chosen to assist qualifying LOCAL UNITS by participating in a statewide treatment
program developed by the Michigan Department of Agriculture (hereafter "MDA"). The MDA program offers
the expertise and experience of the MDA in suppressing the Gypsy Moth infestation plus the possibility of
federal and/or state cost sharing for program expenses through a Michigan Department of Agriculture grant
entitled the Michigan Gypsy Moth Cooperative Suppression Program,2000 Grant Application (hereafter the
"MDA GRANT").
The COUNTY, through this AGREEMENT, provides LOCAL UNITS eligible to participate under the MDA
GRANT, including the MUNICIPALITY, an opportunity to join this County-wide program and realize
economies of scale, cost savings, and possible cost sharing through the MDA GRANT that the
MUNICIPALITY could not achieve independently. This cooperative COUNTY program is entitled the2000
Oakland County Gypsy Moth Suppression Program (hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with a MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor at the MDA determined point in the Gypsy Moth life cycle in
an attempt to minimize MUNICIPALITY tree damage.
The aerial insecticide application and timing aspects for the suppression of the Gypsy Moth in the 2000
PROGRAM are subject to the terms of the MDA GRANT, whereas the MUNICIPALITY'S participation in the
2000 PROGRAM is subordinate to the MDA GRANT terms and subject to this AGREEMENT.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached, incorporated,
and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT", "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS", "MDA", "MDA GRANT' and "2000 PROGRAM" as defined above,
the following are also defined terms in this AGREEMENT:
a. "AGENT' or "AGENTS", when referred to as either an AGENT or AGENTS of the COUNTY
(e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall be defined
to include any and all of that PARTY'S officers, elected officials, appointed officials, directors, board
members, council members, authorities, boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons' successors
or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in
their personal, representative, or official capacities), and/or any and all persons acting by, through,
under, or in concert with any of them. "AGENT" shall also include any person who was an AGENT
any time during this AGREEMENT but for any reason is no longer employed, appointed, or elected
in that capacity. "AGENT", as defined for any purpose in this AGREEMENT, shall NOT include the
PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to coordinate
and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under this
AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief or
damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct, indirect
or consequential, whether based upon any alleged violation of the constitution (federal or state), any
statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise,
and/or whether commenced or threatened and arising out of any alleged breach of any duty by the
MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this AGREEMENT or
are based on or result in any way from the MUNICIPALITY'S participation in the 2000 PROGRAM
or this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and approved by the MDA, selected through an MDA prescribed bidding
process from the MDA list of qualified and approved agricultural aerial pesticide spray contractors
who met the MDA GRANT selection criteria. The PESTICIDE APPLICATOR shall be responsible
for the AERIAL SPRAYING, as defined herein, and as defined herein the PESTICIDE
APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers, boards,
directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all persons
acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for under
the MDA GRANT and/or this AGREEMENT.
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to MDA and COUNTY approval, MDA GRANT
priority and eligibility requirements for REIMBURSEMENT, and the required property owner and/or
resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The MUNICIPALITY
SPRAY BLOCKS are specifically identified and described in Attachment "A".
g. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined as
any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in connection
with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be determined by
multiplying the total number of acres contained in all MUNICIPALITY SPRAY BLOCKS times the
"AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre
under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL
UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE SPRAY COST/ACRE shall
be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE
APPLICATOR in connection with all 2000 PROGRAM AERIAL SPRAYING (in all participating
LOCAL UNITS, including the MUNICIPALITY) by the total number of acres within the County of
Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR in connection with the
2000 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL
SPRAYING by the PESTICIDE APPLICATOR shall be determined by the MDA based upon MDA
established pesticide-flow rates and spray and volume measures taken on any SPRAY DAY(S).
The MDA determination of the total number of acres within the County of Oakland treated by
AERIAL SPRAYING by the PESTICIDE APPLICATOR shall be final. The COUNTY anticipates that
the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will be less than $32.00 per acre. However,
until the total 2000 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTY-WIDE
SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $32.00 per acre, the
PARTIES may cancel this AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE APPLICATOR
is scheduled by the COUNTY, the MDA, and the PESTICIDE APPLICATOR. SPRAY DAY(S), in all
participating LOCAL UNITS, including the MUNICIPALITY, are expected to occur sometime
between MAY 5, 2000 and June 10, 2000, depending upon such factors as the daily caterpillar
development reports, the weather, temperature, wind conditions, and other last-minute variables
upon which any decision to spray or postpone AERIAL SPRAYING must be based. The COUNTY,
with the MDA and the PESTICIDE APPLICATOR, shall decide the commencement and sequence
of all AERIAL SPRAYING and SPRAY DAY(S).
j. "ADMINISTRATIVE COSTS" shall be defined as any and all 2000 PROGRAM costs,
expenses, wages, salaries, fringe benefit costs, equipment, supplies, administrative overhead,
building costs, or any costs and expenses that are incurred and/or paid either by the COUNTY, on
or after October 1, 1999, but before September 30, 2000, (i.e., COUNTY ADMINISTRATIVE
COSTS) or by the MUNICIPALITY on or after October 1, 1999, but before June 30, 2000, (i.e.,
MUNICIPALITY ADMINISTRATIVE COSTS) in connection with the 2000 PROGRAM.
ADMINISTRATIVE COSTS and MUNICIPALITY SPRAY COSTS are mutually exclusive cost
categories. All claimed ADMINISTRATIVE COSTS must have been incurred exclusively for and in
connection with the 2000 PROGRAM. No additional ADMINISTRATIVE COSTS shall be allowed
after the 2000 PROGRAM is ended. "ADMINISTRATIVE COSTS" may be further defined and
limited to "MDA APPROVED ADMINISTRATIVE COSTS".
k. "MDA APPROVED ADMINISTRATIVE COSTS" shall be defined as any and all
ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM by either PARTY
which have been approved by the MDA as eligible for possible REIMBURSEMENT under the terms
of the MDA GRANT. The MDA shall solely decide which, if any, ADMINISTRATIVE COSTS
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
5 r
submitted by the COUNTY or the MUNICIPALITY in connection with the 2000 PROGRAM shall be
approved and eligible for REIMBURSEMENT under established MDA GRANT criteria and in what
amount, if any, REIMBURSEMENT shall be paid to the COUNTY.
I. "REIMBURSEMENT" shall be defined as any MDA GRANT funds received by the
COUNTY because of the COUNTY'S submission of any MUNICIPALITY SPRAY COST, or any
COUNTY or MUNICIPALITY ADMINISTRATIVE COSTS to the MDA which were specifically paid to
the COUNTY and attributable to any specific MUNICIPALITY SPRAY COST or any COUNTY or
MUNICIPALITY ADMINISTRATIVE COSTS. The MDA shall not reimburse the PESTICIDE
APPLICATOR or the MUNICIPALITY directly and all REIMBURSEMENT shall be paid only to the
COUNTY. The MUNICIPALITY agrees that the MDA shall solely decide: the extent, and amount, if
any, of any possible REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or
MUNICIPALITY ADMINISTRATIVE COSTS. The MUNICIPALITY agrees that the MDA GRANT
establishes criteria for MUNICIPALITY REIMBURSEMENT and that not every MUNICIPALITY
SPRAY COST and/or MUNICIPALITY ADMINISTRATIVE COSTS incurred shall be eligible for MDA
approval or REIMBURSEMENT or receive a uniform rate of REIMBURSEMENT. The COUNTY
shall have no obligation to represent, challenge, contest, appeal, or argue for any
REIMBURSEMENT on behalf of the MUNICIPALITY with the MDA.
m. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related legal
obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of any
MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as provided
below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws any
MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage from
that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
, when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM, will
be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the AERIAL
SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce, withdraw,
or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may subject the
COUNTY to certain "PENALTIES" under its contract with the PESTICIDE APPLICATOR. Decisions
by the MDA, the COUNTY, or any governmental authority other than the MUNICIPALITY to exclude
or prohibit AERIAL SPRAYING of any partial or entire MUNICIPALITY SPRAY BLOCK shall not be
considered a decision by the MUNICIPALITY to change, withdraw, or cancel the AERIAL
SPRAYING of any MUNICIPALITY SPRAY BLOCK for the purposes of assessing any PENALTIES.
COUNTY MDA GRANT COORDINATION RESPONSIBILITIES
2. The COUNTY will apply for, attempt to qualify for, and secure possible MDA GRANT
REIMBURSEMENT to reduce the total 2000 PROGRAM costs. The COUNTY, with the cooperation of the
MUNICIPALITY and subject to this AGREEMENT, will undertake all reasonable and necessary
administrative steps required by the Grantee under the MDA GRANT.
3. The COUNTY will enter a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR according to the MDA GRANT required purchasing requirements, including the
development of the required Request for Quotation ("RFQ"), solicitation and review of all bids, and the final
selection and contracting with an MDA approved and qualified PESTICIDE APPLICATOR to conduct the
AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the 2000 PROGRAM. The
pesticide applicator contract shall include the following insurance requirements.
INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or
any potential subcontractors:
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
1
a. Worker's Compensation Coverage as required by Michigan statute.
Coverage B, Employer's Liability, in the minimum amount of $500,000.00
per coverage.
b. If you are a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Comprehensive General Liability Coverage in the minimum amount of
$2,500,000.00 combined single limit and $5,000,000.00 aggregate
coverage covering the following exposures:
i. premise operation
ii. personal injury
iii. products and completed operations
iv. contractual liability - specifically addressing this contract.
c. If you are not a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Your aircraft liability coverage endorsed to cover premises liability in the
minimum amount of $2,500,000.00 combined single limit per occurrence.
d. Auto Fleet Liability in the minimum amount of $500,000.00 per occurrence
and providing coverage for fuel tenders, if applicable, and coverage for
Michigan No-Fault.
e. Aircraft Liability Coverage in the minimum amount of $2,500,000.00
combined single limit per occurrence and $5,000,000.00 in the aggregate
and must specifically contemplate coverage for aerial spraying. In addition,
coverage for Chemical Drift must be provided with the following limits:
i. $100,000.00 per person
ii. $300,000.00 per accident (no aggregate)
iii. $100,000.00 per accident property damage
iv. $100,000.00 property damage aggregate.
v. Coverage must include damage to property being treated and the
residential exclusion must be removed. This shall be endorsed to
cover target application.
vi. You also must provide an "Additional Interest Endorsement" issued
naming the County of Oakland and each of the following local
governmental entities (hereafter individually "Municipality" or
collectively "Municipalities") located within the County of Oakland
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
g.
which will be participating in any resulting Contract with any bidder
as there are going to be Spray Blocks located within these
Municipalities and the County will be contracting with each of the
following Municipalities for participation in this Program.
Charter Township of Highland, Charter Township of Orion,
Township of Rose, Charter Township of Springfield, Charter
Township of White Lake, and City of Rochester Hills.
vii. The "Additional Interest Endorsement" required in the Aircraft
Liability Insurance for the County and each of the Municipalities
shall also include any and all of the County's and each
Municipality's elected officials, appointed officials, officers,
employees, volunteers, boards, commissions, councils, and
committees.
f. The County shall receive the appropriate certificates of insurance providing
evidence of the above coverage(s) prior to work being performed and
which shall provide a minimum of 30 days notice to the County of any
cancellation or material change in coverage(s). All Certificates of
Insurance, and/or duplicate policies from CONTRACTOR shall contain the
following clauses:
i. "The insurance CONTRACTOR(s) issuing the policy or policies
shall have no recourse against COUNTY for payment of any
premiums or for assessments under and form of policy."
ii. "Any and all deductibles in the above described insurance policies
shall be assumed by and be for the account of, and at the sole risk
of, the CONTRACTOR."
iii. "There will be no additional exclusions running to the additional
insured based upon any actions or activities of the named insured."
All required insurance will be carried with insurance companies authorized
to do business in the State of Michigan.
h. The CONTRACTOR agrees that the COUNTY shall be legally subrogated
to any rights to recover and/or benefits the CONTRACTOR may have in
any insurance policy and to the full extent of any payment under any
insurance policy is required to make the COUNTY whole for any loss and,
and the CONTRACTOR shall cooperate, and perform any act necessary to
secure such rights on behalf of the COUNTY.
i. The CONTRACTOR agrees that should it fail to satisfy any insurance
obligation as described in Addendum A, the COUNTY, at its sole
discretion, shall have the right to cancel any Contract with the bidder or
Contractor.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
Under no circumstances, shall the County have any liability or responsibility for the purchase,
transportation, storage, disposal, or security of any insecticide. In the event of any an order to
cease aerial spraying activities, the County shall not be required to purchase, receive, or be
responsible for any unused insecticide from the Contractor.
4. The COUNTY shall be the sole Grantee under the MDA GRANT and shall act as the MDA GRANT
coordinator and fiscal agent for the MUNICIPALITY, subject to the terms of this AGREEMENT, with regard
to the financing and initial payment to the PESTICIDE APPLICATOR for all MUNICIPALITY SPRAY
COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all MUNICIPALITY SPRAY
COSTS shall always remain the eventual, final, and exclusive financial responsibility of the MUNICIPALITY.
5. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT and the MDA GRANT.
6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2000
PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information to
assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000 PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program options,
the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth infestation to be
available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information from the MDA to assist
the MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY SPRAY
BLOCKS under the 2000 PROGRAM and for possible REIMBURSEMENT under the MDA GRANT.
d. Provide the MUNICIPALITY with all necessary operational forms and MDA GRANT
documents so the MUNICIPALITY can thoroughly understand the MDA GRANT requirements and
REIMBURSEMENT limitations under the MDA GRANT and/or this AGREEMENT. The COUNTY
shall also provide any MDA GRANT procedures and/or operating instructions related to
MUNICIPALITY SPRAY BLOCK, marking requirements so that the MUNICIPALITY can
appropriately train and assign MUNICIPALITY AGENTS to perform these obligations.
7. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media as
required by the MDA GRANT. The COUNTY will provide information and answer questions from the public,
community and citizen groups, LOCAL UNITS, and the media about the Gypsy Moth infestation and
AERIAL SPRAYING treatment under the 2000 PROGRAM.
8. The COUNTY, as required by the MDA GRANT, shall also hold a County-wide public meeting or an
MDA approved alternative method to solicit citizen concerns regarding the 2000 PROGRAM and provide
technical information. The COUNTY, at this meeting, shall explain the 2000 PROGRAM, the insecticide that
will be used, the MUNICIPALITY SPRAY BLOCK qualifying parameters as required in the Environmental
Impact Statement, and collect information regarding environmentally sensitive areas.
9. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for
future treatment planning and programs.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
10. The COUNTY, as required by the MDA GRANT, shall conduct the post treatment evaluation and
survey of a random sample of treated MUNICIPALITY SPRAY BLOCKS and property owners from the
treated MUNICIPALITY SPRAY BLOCKS, using MDA approved questionnaire and survey tools to
determine the percentage of foliar preservation necessary to comply with the MDA GRANT requirements.
11. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to capture
trends for future program planning.
12. The COUNTY will consolidate the MUNICIPALITY SPRAY COSTS with all such costs from all
other participating LOCAL UNITS into the combined MDA GRANT required format and submit same to the
MDA for approval and possible REIMBURSEMENT. The COUNTY will similarly combine all
MUNICIPALITY ADMINISTRATIVE COSTS incurred in connection with the 2000 PROGRAM with all such
costs incurred by other participating LOCAL UNITS and the COUNTY and will submit all such 2000
PROGRAM ADMINISTRATIVE COSTS to the MDA for approval and possible REIMBURSEMENT.
13. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are necessary
to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL SPRAYING of
all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
14. The MUNICIPALITY warrants that only those such blocks that have been: surveyed for egg mass
density as required by the MDA, which in the judgment of the MUNICIPALITY meet MDA GRANT eligibility
criteria and are located entirely within the MUNICIPALITY are included in the MUNICIPALITY SPRAY
BLOCKS which are further described in Attachment "A".
15. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet MDA GRANT criteria for inclusion, do not qualify for
any MDA GRANT REIMBURSEMENT, will burden or jeopardize the COUNTY'S compliance with the MDA
GRANT, or unacceptably obligate the COUNTY to pay for MUNICIPALITY SPRAY COSTS beyond
anticipated MDA GRANT REIMBURSEMENT or which cannot be safely or effectively treated by AERIAL
SPRAYING as decided by the PESTICIDE APPLICATOR. The MUNICIPALITY agrees that,
notwithstanding any provision in this AGREEMENT, the MDA also has the absolute right to reject any
MUNICIPALITY SPRAY BLOCKS and/or deny REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS
or ADMINISTRATIVE COSTS for any rejected MUNICIPALITY SPRAY BLOCKS.
16. After COUNTY and MDA approval of MUNICIPALITY SPRAY BLOCKS, the permission and
approval of all residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS shall
also be sought. The COUNTY shall notify all property owners, as required by the MDA GRANT, in the
MUNICIPALITY SPRAY BLOCKS at least 30 days before the projected SPRAY DAY(S) of the planned
AERIAL SPRAYING. For these purposes, the MUNICIPALITY agrees to provide, in such quantities as
requested, MUNICIPALITY resident and/or property owner mailing lists, mailing labels, and any other
identifying information necessary to facilitate communications between the COUNTY COORDINATOR and
any resident and/or property owner in any MUNICIPALITY SPRAY BLOCK.
17. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call or
objection with the individual's name, address, telephone number and parcel number. The MUNICIPALITY
shall promptly forward copies of any entries into such written logs and records to the COUNTY
COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be scheduled for
AERIAL SPRAYING after the objection of the resident or property owner has been received. The COUNTY
COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure that the 2000 PROGRAM is
completely understood and verify that the property owner does not wish their property to be included in the
AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any property owner's exclusions
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust
MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
18. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or between
any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S) the
MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes to
the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report any
additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be mapped
by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING. Maps
shall be accompanied by a written summary on a form provided by the MDA that identifies for each
proposed MUNICIPALITY SPRAY BLOCK the number of homes, the MDA SPRAY BLOCK priority category
and the number of acres to be sprayed within each MUNICIPALITY SPRAY BLOCK. The MUNICIPALITY
shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
19. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The MUNICIPALITY
agrees to make the necessary staffing and planning arrangements and adjust, as necessary, any
MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday SPRAY DAY(S)), to
meet its SPRAY DAY(S) obligations on such short notice.
20. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall ensure that all MUNICIPALITY SPRAY BLOCKS are adequately and properly marked with the
appropriate helium-filled marker balloons or adequate natural landmarks, as specified in the MDA GRANT or
the PESTICIDE APPLICATOR contract. The MUNICIPALITY shall be responsible for providing enough
MUNICIPALITY AGENTS to place such required marker balloons (hereafter "balloon crews") to adequately
identify MUNICIPALITY SPRAY BLOCKS for AERIAL SPRAYING and otherwise help in related SPRAY
DAY(S) activities as requested. The MUNICIPALITY shall be responsible for assuring that all non-spray
areas are adequately marked off with either off-color balloons or by double balloons so that the pilot
conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY BLOCKS from
adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt removal of all
balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY DAY(S)
operations have been completed.
21. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone or suitable
mobile radios for communicating with the COUNTY COORDINATOR. Except for marking balloon related
supplies (e.g., balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for
providing all MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK
maps, transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole
judgment, deems are required or beneficial for the completion of any MUNICIPALITY responsibilities under
this AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
22. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all federal,
state, and local laws, ordinances, regulations, and agency requirements in any manner affecting the work or
performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and assist in securing
all necessary certificates and permits from such public authorities as may be required for AERIAL
SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations for safety
precautions under the exclusive control and supervision of any other governmental agency or entity. The
MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary for the
protection of persons and property which may be affected by AERIAL SPRAYING, and will notify the
COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any potentially
dangerous situation. In case of an emergency affecting the safety of any persons or property, the
MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by attempting
to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
23. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON".
The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2000
PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
24. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified MUNICIPALITY
AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this AGREEMENT. The
MUNICIPALITY AGENTS shall be employed and assigned based on appropriate qualifications and other
factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it shall be solely responsible for
furnishing all MUNICIPALITY AGENTS with all job instructions, job descriptions and job specifications and
shall otherwise control, supervise, train or direct MUNICIPALITY AGENTS in the performance of any
MUNICIPALITY duties or obligations under this AGREEMENT. The MUNICIPALITY agrees that the
COUNTY shall have no liability or obligation in this regard.
25. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner. The
MUNICIPALITY agrees that neither the MUNICIPALITY nor any MUNICIPALITY AGENT will, in any
manner, interfere or prevent the COUNTY from timely completion of any COUNTY obligations under the
MDA GRANT.
26. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall be
considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees that
it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or future
wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or
any other statutory or contractual right or benefit based on or in any way related to any MUNICIPALITY
AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S statutory,
contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY AGENT.
The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any and all
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any COUNTY AGENT
by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise from, or are in any way
related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other employment-related or
based rights, including, but not limited to, those described in this Paragraph.
MDA GRANT LIMITATIONS ON EMPLOYMENT OF MUNICIPALITY AGENTS
27. The MUNICIPALITY shall insure that no member of the legislature of the State of Michigan or any
individual employed by the State shall be permitted to share in any REIMBURSEMENT or other benefit paid
to or received by the MUNICIPALITY from the MDA GRANT.
28. The MUNICIPALITY shall report to the COUNTY within five (5) days after the end of each month,
that this AGREEMENT is in effect, the names, social security numbers and the amount of payment made to
any former State of Michigan employee who:
a. Retired from the State between June 2, 1984 and September 30, 1984 under the provisions
of Act 2 and 3 of the Public Acts of 1984.
b. Is less than 62 years of age; and
c. Performed services purchased by the State under the provisions of the MDA GRANT
during the month. For any month which the MUNICIPALITY has no employees (as described
above) assigned to work performed under the provisions of this AGREEMENT, no report is
required.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
29. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
30. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide any
financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset any
MUNICIPALITY SPRAY COSTS or MUNICIPALITY ADMINISTRATIVE COSTS in connection with the
MUNICIPALITY'S participation in the 2000 PROGRAM except as expressly provided for in this
AGREEMENT. The MUNICIPALITY agrees that any and all such MUNICIPALITY SPRAY COSTS, and any
PENALTIES shall at all times remain the sole financial responsibility of the MUNICIPALITY.
31. The MUNICIPALITY agrees that its participation in the 2000 PROGRAM and/or any and all of its
obligations under this AGREEMENT, including but not limited to the MUNICIPALITY'S payment obligations
to the COUNTY, are NOT contingent, dependent, and/or in any way conditioned upon the eventual receipt
of any REIMBURSEMENT under the MDA GRANT or from any other financial assistance or support from
outside the MUNICIPALITY. The MUNICIPALITY further agrees that any amount due and owing to the
COUNTY under this AGREEMENT, which is still unpaid at the time the COUNTY distributes funds to the
MUNICIPALITY from the Delinquent Tax Revolving Fund (DTRF), the COUNTY shall be entitled to reduce,
set-off, and permanently retain any amount due to the MUNICIPALITY from Delinquent Tax Revolving Fund
(DTRF) by any such amount then still due and owing the COUNTY pursuant to this AGREEMENT.
POSSIBLE MDA GRANT REIMBURSEMENT
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
33. The MUNICIPALITY shall submit all itemized MUNICIPALITY ADMINISTRATIVE COSTS and
related expenses for the 2000 PROGRAM to the COUNTY COORDINATOR no later than June 30, 2000,
and shall provide written documentation for any such costs as required. Possible MUNICIPALITY
ADMINISTRATIVE COST REIMBURSEMENT is dependent upon properly submitted and documented
expenses. The COUNTY shall not be required to submit any MUNICIPALITY ADMINISTRATIVE COSTS
that are either: incurred or submitted after June 30, 2000, not sufficiently documented, or not readily
transferable to the MDA GRANT required format. The COUNTY shall not to be required to speculate,
compile, or calculate any MUNICIPALITY ADMINISTRATIVE COSTS claimed or the purpose(s) for which
any MUNICIPALITY ADMINISTRATIVE COSTS were incurred by the MUNICIPALITY.
34. Upon receipt of any REIMBURSEMENT the COUNTY will prepare a REIMBURSEMENT summary
of all MUNICIPALITY SPRAY COSTS and MDA APPROVED ADMINISTRATIVE COSTS in connection with
the 2000 PROGRAM and the amount of any such REIMBURSEMENT received attributable to any
MUNICIPALITY SPRAY COST and MUNICIPALITY MDA APPROVED ADMINISTRATIVE COSTS. The
MUNICIPALITY agrees that any MUNICIPALITY benefit or interest in any REIMBURSEMENT received by
the COUNTY under the MDA GRANT or under the terms of this AGREEMENT shall be based solely upon
any MDA approved and paid REIMBURSEMENT for any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred and paid by the MUNICIPALITY and shall not be based, in
any manner, upon any such costs as may have been incurred, claimed, or submitted by the
MUNICIPALITY.
35. The MUNICIPALITY agrees that any MDA GRANT REIMBURSEMENT for any 2000 PROGRAM
costs incurred by either the MUNICIPALITY or the COUNTY are not certain or guaranteed. The PARTIES
further agree that the failure of the COUNTY to receive or qualify for any MDA GRANT REIMBURSEMENT
shall neither relieve the MUNICIPALITY of any financial obligation to the COUNTY nor create any financial
liability for the COUNTY to reimburse the MUNICIPALITY for any and all MUNICIPALITY cost or expenses
associated with or resulting from its participation in the 2000 PROGRAM.
MUNICIPALITY BENEFIT FROM POSSIBLE MDA GRANT REIMBURSEMENT
36. The PARTIES agree that the MUNICIPALITY may be eligible to benefit from any possible MDA
GRANT REIMBURSEMENT to the COUNTY on the following terms:
a. In the event that the COUNTY receives any MDA GRANT REIMBURSEMENT for any part
of any MUNICIPALITY SPRAY COSTS or any MDA APPROVED ADMINISTRATIVE COSTS
incurred and paid by the MUNICIPALITY, the COUNTY shall apply such amount as a credit toward
any amount then unpaid, due and/or owing to the COUNTY from the MUNICIPALITY under this
AGREEMENT. The total amount of REIMBURSEMENT credited toward the payment of
MUNICIPALITY SPRAY COSTS shall be the same amount as the amount of REIMBURSEMENT
received and paid to the COUNTY for all MUNICIPALITY SPRAY BLOCKS. The parties
acknowledge the possibility that some Municipality program-related costs may not be paid before
the time that any Reimbursement is to be credited. It is not the intent of this paragraph to exclude
any bonafide Municipality program cost, for purposes of crediting any Reimbursement, if for some
unusual reason such cost has not yet been paid by the Municipality.
b. If the amount of any direct MUNICIPALITY payments made to the COUNTY for
MUNICIPALITY SPRAY COSTS, plus any REIMBURSEMENT paid to and in the possession of the
COUNTY which is attributable to any MUNICIPALITY SPRAY COSTS and/or any MDA
APPROVED ADMINISTRATIVE COSTS incurred by the MUNICIPALITY, exceeds the total amount
of all MUNICIPALITY SPRAY COSTS, and any MUNICIPALITY PRO-RATA SHARE OF ALL NON-
REIMBURSED COUNTY ADMINISTRATIVE COSTS, as defined herein, and any possible
PENALTIES; such excess amounts shall be deemed to have been an overpayment by the
MUNICIPALITY to the COUNTY and any such excess amounts shall be returned to the
MUNICIPALITY.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
c. If, however, after all REIMBURSEMENT attributable to any MUNICIPALITY SPRAY
COSTS or MUNICIPALITY ADMINISTRATIVE COSTS has been received by the COUNTY and
credited, as provided for above, there remains any MUNICIPALITY SPRAY COST, any
MUNICIPALITY PRO-RATA SHARE OF ALL NON-REIMBURSED COUNTY ADMINISTRATIVE
COSTS, as defined herein, (and any possible PENALTIES) amounts unpaid and owing to the
COUNTY, the MUNICIPALITY shall be invoiced for the balance due.
d. Any REIMBURSEMENT received by the COUNTY attributable to any MDA APPROVED
ADMINISTRATIVE COSTS incurred and paid by the COUNTY in connection with the 2000
PROGRAM, shall be credited and used by the COUNTY toward offsetting the COUNTY'S costs and
expenses incurred in administering the 2000 PROGRAM, and shall not be credited or used to the
financial benefit of the MUNICIPALITY, in any manner.
COUNTY INVOICES TO MUNICIPALITY
37. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY. This invoice shall be based upon the
COUNTY'S best estimate at the time of the anticipated total MUNICIPALITY SPRAY COSTS minus the
total anticipated REIMBURSEMENT expected to be attributable to all MUNICIPALITY SPRAY COSTS and
expected to be received by the COUNTY from the MDA at a later date. The COUNTY'S estimates for the
purposes of this invoice, based upon its evaluation of then existing MDA GRANT circumstances, shall be
conclusive. The MUNICIPALITY agrees to pay the full amount shown on or before May 1, 2000, or no later
than 15 days after the invoice date, whichever date is later.
38. After final MDA GRANT REIMBURSEMENT amounts attributable to MUNICIPALITY SPRAY
COSTS and non recoverable costs are calculated or incurred by the MUNICIPALITY are received by the
COUNTY, the COUNTY shall prepare and forward to the MUNICIPALITY an invoice, if necessary, for the
payment of any then remaining unpaid or otherwise un-reimbursed MUNICIPALITY SPRAY COSTS
incurred and paid by the COUNTY in connection with any MUNICIPALITY SPRAY BLOCKS. The
MUNICIPALITY agrees to pay the full amount shown on this invoice within 30 days after the date of the
invoice.
MUNICIPALITY RECORD KEEPING
39. The MUNICIPALITY shall complete all MDA GRANT documents as required and cooperate with the
COUNTY in supplying all necessary or required information, forms, or cost and expense data to the
COUNTY on a timely basis. The MUNICIPALITY agrees that it shall maintain documentation of all costs
incurred and funds disbursed and shall retain all financial reports, supporting documents, and statistical
records until September 30, 2003. The MUNICIPALITY shall maintain any and all records that allow for
comparison of actual MUNICIPALITY outlays with all amounts submitted for REIMBURSEMENT. The
MUNICIPALITY'S overall financial management system must ensure effective control over, and
accountability for all funds received and/or expended. MUNICIPALITY accounting records must be
supported by documents such as canceled checks, invoices, personnel time reports, (e.g., time reports must
show name, date worked, position, brief description of duty or responsibility and number of hours worked.),
receipts or other verifiable proof of payment. The MUNICIPALITY agrees that any MUNICIPALITY costs
and expenses in connection with the 2000 PROGRAM may be subject to an audit by the State of Michigan
or the COUNTY at any time. The MUNICIPALITY agrees to cooperate fully with any State of Michigan or
COUNTY auditors in this regard and will allow such auditors complete and open access to any of the
MUNICIPALITY'S 2000 PROGRAM related records. The MUNICIPALITY further agrees that it shall return
any funds it was paid or pay any amount of REIMBURSEMENT it received the benefit of as a credit or
otherwise in connection with the 2000 PROGRAM when MUNICIPALITY records and documentation fail to
support, according to accepted accounting and auditing standards, any MUNICIPALITY expenses.
MUNICIPALITY PROVIDED INSURANCE
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
40. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under this
AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any MUNICIPALITY
AGENT, or by anyone for whose acts any of them may be liable.
e. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have insurance
or participate in a mandatory state fund to cover the benefits payable to any MUNICIPALITY
AGENT.
f. Liabilities for damages because of bodily injury, occupational sickness or disease, or death
of his employees.
9. Liabilities for damages because of bodily injury, sickness or disease, or death of any person
other than any MUNICIPALITY AGENT, subject to limits of liability of not less than $300,000 each
occurrence and, when applicable $300,000 annual aggregate, for non-automobile hazards and as
required by law for automobile hazards.
h. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each occurrence
for non-automobile hazards and as required by law for automobile hazards.
Insurance for the preceding two (2) subparagraphs non-automobile hazards on a combined
single limit of liability basis shall not be less than $300,000 each occurrence and when applicable,
$300,000 annual aggregate. The insurance shall be written for not less than any limits of liability
herein specified or required by law, whichever is greater, and shall include contractual liability
insurance as applicable to the MUNICIPALITY'S obligations under the indemnification provisions of
this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
41. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by the
MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
42. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
DISCLAIMER OF ANY COUNTY WARRANTY
43. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and enter
this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to participate. In
making this decision, the MUNICIPALITY has relied entirely upon its own investigation, and/or has had
ample opportunity to conduct such an investigation, of all material facts, applicable laws, and all such other
circumstances that might influence upon the MUNICIPALITY'S decision to enter this AGREEMENT. The
COUNTY shall make available to the MUNICIPALITY, upon request, copies of any information it receives
from the MDA in connection with the 2000 PROGRAM and the AERIAL SPRAYING.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
44. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING component
of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to any tree by
Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy Moths, or that
the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or effective, or the
safest and most effective means of suppressing the Gypsy Moth infestation, or any other performance-
based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of
the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING for the delivery of
insecticide, the choice of insecticide, the insecticide application rates, the timing of such applications, etc.,
have been established under the terms of the MDA GRANT in which the MUNICIPALITY has voluntarily
consented to participate and assume all risks described and outlined in this AGREEMENT.
LIMITATION OF LIABILITY
45. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either PARTY
or any third person, whether in an action in contract or tort, whether or not the other PARTY has been
advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder shall in no
event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the COUNTY.
This AGREEMENT is intended to allocate the risks between the COUNTY and the MUNICIPALITY, and the
PARTIES agree that the allocation of each PARTY'S efforts, costs, and obligations under this AGREEMENT
reflect this allocation of risk and the limitations of liability specified herein.
46. The COUNTY under the terms of the MDA GRANT was limited in the selection and contract terms
with the PESTICIDE APPLICATOR. The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or
liability against the COUNTY for any material defects, errors, mistakes, negligence, or omissions in the
PESTICIDE APPLICATOR RFQ, the bid specifications, the bid procedure, the bid award process, the
PESTICIDE APPLICATOR contract negotiation process, the preparation or execution of the PESTICIDE
APPLICATOR contract, or any other errors or mistakes of fact by the COUNTY in the selection of the
PESTICIDE APPLICATOR. The MUNICIPALITY agrees that at all times and for all purposes under this
AGREEMENT the PESTICIDE APPLICATOR relationship to the COUNTY shall be that of an
INDEPENDENT CONTRACTOR and not a COUNTY AGENT as defined herein. The MUNICIPALITY
hereby agrees to waive any CLAIM(S) or liability against the COUNTY based in any manner upon any act or
omission of the PESTICIDE APPLICATOR.
CANCELLATION
47. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
48. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
49. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM acreage
for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-WIDE SPRAY
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
COSTS/ACRE will exceed $32.00 per acre, the COUNTY shall notify the MUNICIPALITY in writing of the
then anticipated cost. The MUNICIPALITY, within five days after the receipt of such notice, but in no event
after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by a written notice to the
COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher than anticipated
costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the MUNICIPALITY paid to the
COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is obligated, shall be returned to
the MUNICIPALITY. The COUNTY may also unilaterally cancel this AGREEMENT should it appear that the
AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed $32.00 and shall have no further obligation
to the MUNICIPALITY under this AGREEMENT.
The MUNICIPALITY acknowledges that the MDA may cancel the MDA GRANT at any time. In the
event the MDA GRANT is canceled or otherwise materially reduced in scope for any reason, including but
not limited to a lack of funding, a determination that AERIAL SPRAYING effort is too late to be effective, or
any other operational reason, or should the expectations of the MDA GRANT REIMBURSEMENT materially
change anytime before the SPRAY DAY(S), the COUNTY may also cancel this AGREEMENT by giving the
MUNICIPALITY written notice of such cancellation.
2000 PROGRAM CHANGES
50. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to cancel
this AGREEMENT or otherwise change the total number acres or the configuration of any MUNICIPALITY
SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the COUNTY incurring any
PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated to pay to the COUNTY the
full amount of any and all PENALTIES incurred by the COUNTY. The MUNICIPALITY agrees that any
amount due and owing to the COUNTY as PENALTIES shall be above and beyond any other amounts
otherwise due and owing to the COUNTY under this AGREEMENT. The MUNICIPALITY shall not be
permitted to add, delete, substitute or change the configuration of any MUNICIPALITY SPRAY BLOCKS as
shown on Attachment "A" without the written approval of the COUNTY and the MDA.
FORCE MAJEURE
51. Neither the COUNTY nor the MDA shall be liable to the MUNICIPALITY or any person for failure or
delay in performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or delay
is caused by circumstances beyond the control of the COUNTY or the MDA, including, without limitation,
failures resulting from weather delays, premature or delayed development of the Gypsy Moth caterpillars,
high winds, unsafe flying conditions, circumstances that make the effectiveness of AERIAL SPRAYING to
suppress the infestation less than optimal, any material changes in the MDA GRANT and/or
REIMBURSEMENT schedules, accidents, labor stoppages, war, any default by the PESTICIDE
APPLICATOR, the inability to secure necessary materials or labor, governmental acts or regulations, acts of
God, or other causes beyond the COUNTY'S or MDA'S control, whether or not similar to those above. The
COUNTY agrees that, in any such event, the COUNTY shall communicate that fact to the MUNICIPALITY
when such fact(s) becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
52. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance coverage(s),
waivers of liability, liabilities, audit requirements, record-keeping requirements, any MUNICIPALITY payment
obligations to the COUNTY, 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 before the cancellation or completion of this AGREEMENT, shall
survive the cancellation or completion of this AGREEMENT. The expiration, cancellation, or termination of
this AGREEMENT shall be without prejudice to any rights or claims of either PARTY against the other and
shall not relieve either PARTY of any obligations which, by their nature, survive expiration or termination of
this AGREEMENT.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16
2000 PROGRAM COMPLETION
53. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be suppressed
by AERIAL SPRAYING, or when 60% or more of the forest canopy has already been defoliated as
determined by the COUNTY or the MDA.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
54. The PARTIES reserve to themselves any rights and obligations related to the provision of any and
all of each PARTY'S respective governmental services, authority, responsibilities, and obligations. Except
as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to, create,
diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other
legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity,
or authority of either the MUNICIPALITY or the COUNTY to any other person or PARTY.
55. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties under
this AGREEMENT to any other person and/or public or private corporation, entity, or organizations of any
kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
56. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the
COUNTY Board of Commissioners and the governing Township Board of the MUNICIPALITY. The
approval and terms of this AGREEMENT shall be entered in the official minutes and proceedings of the
COUNTY Board of Commissioners and governing Township Board of the MUNICIPALITY and shall also be
filed with the office of the Clerk for the COUNTY and the MUNICIPALITY. In addition, this AGREEMENT,
and any subsequent amendments, shall be filed with the Secretary of State for the State of Michigan by the
COUNTY and shall not become effective or implemented prior to its filing with the Secretary of State.
57. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing Township Board of the
MUNICIPALITY. This AGREEMENT shall not be changed, supplemented, or amended except as provided
for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend
or modify this AGREEMENT.
AUDIT AND RECORD ACCESS
58. As required by the MDA GRANT, the MDA and/or the COUNTY shall have the right to audit the
MUNICIPALITY from time to time, after reasonable written notice of its intended audit, in order to assess the
MUNICIPALITY'S compliance with the terms of this AGREEMENT and to determine whether the
MUNICIPALITY is following generally accepted accounting standards and/or complying with all MDA
GRANT audit requirements and standards. The MUNICIPALITY shall similarly permit authorized State or
federal Agents to make one or more such audits and program reviews.
59. The MDA and/or COUNTY shall have the right to initiate any audit for a period of three (3) years
after the expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be
concluded or otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
60. The project will be subject to an audit by the State prior to or after the final payment. In addition,
Grantees that receive $25,000 or more in federal financial assistance annually shall have an audit
performed in accordance with Federal Circular No. A-128. A copy of the audit is to be submitted to the
Grant Administrator.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 17
61. In conjunction with any audit the MUNICIPALITY shall permit the COUNTY and/or the MDA full and
complete availability and access to:
j. Any and all original personnel records, including, but not limited to, work evaluations,
references, wage records, time sheets and attendance records, of any MUNICIPALITY AGENTS,
as requested, for purposes of program evaluation, fiscal audit pertaining to this AGREEMENT.
k. All original records related to or necessary for determining any MUNICIPALITY
ADMINISTRATIVE COSTS or any MUNICIPALITY costs or expenses related to this AGREEMENT,
and/or any MUNICIPALITY costs or amounts submitted to the MDA for possible
REIMBURSEMENT.
REPAYMENT OF FUNDS RECEIVED BY MUNICIPALITY IN EXCESS OF ACTUAL MDA APPROVED
COSTS AND EXPENSES
62. The MUNICIPALITY agrees to repay the COUNTY, when and as requested, an amount equal to
any and all dollar amounts paid to the MUNICIPALITY by the COUNTY in connection with this
AGREEMENT which, based upon any audit finding or review of MUNICIPALITY'S records of actually
incurred and paid expenses, are determined by the MDA or the COUNTY to:
Have been either unreasonable and/or unnecessary MUNICIPALITY costs and expenses
and/or expenses which were not actually incurred and paid by the MUNICIPALITY in connection
with the 2000 PROGRAM. The MDA has defined "Reasonable Costs" as follows: A cost is
reasonable if, in it's nature and amount, it does not exceed that which would be incurred by a
prudent person under the circumstances prevailing at the time the decision was made to incur the
cost. In determining reasonableness of a given costs, consideration shall be given to: 1) whether
or not the items are necessary and reasonable for proper and efficient performance of the
agreement, and 2) Market prices for comparable goods or services, and 3) whether the
individuals concerned acted with prudence in the circumstances considering their responsibilities to
the governmental unit, its employees, the public at large, and the federal government.
m. Have been ineligible or inappropriate for the payment of any REIMBURSEMENT to
MUNICIPALITY under the terms and conditions of this AGREEMENT.
n. MUNICIPALITY repayment to the COUNTY, if any, as a result of audit findings or MDA or
COUNTY review of any MUNICIPALITY expenses shall be made by the MUNICIPALITY within
ninety (90) days following receipt of the final audit report or other such notice from the MDA and/or
the COUNTY. The MUNICIPALITY'S obligation to repay the COUNTY, as set forth in this section,
shall be absolute and unconditional and shall not be affected by the occurrence of either PARTY'S
default of any term or condition of this AGREEMENT nor shall any other occurrence or event
relieve, limit, or impair the obligation of the MUNICIPALITY to repay the COUNTY as provided for
herein. The MUNICIPALITY further agrees that the COUNTY may, at its sole option, recover any
such amounts by offsetting any amounts otherwise due and owing to the MUNICIPALITY by the
COUNTY.
MUNICIPALITY CONTRACTS FOR MERCHANDISE AND SERVICES
63. For purchases of services and merchandise made by the MUNICIPALITY or any MUNICIPALITY
sub-contractor against or in anticipation of REIMBURSEMENT under the MDA GRANT, prior approval must
be received from the MDA for any single items costing $1,000 or greater. A formal bid process must be
followed for items of $10,000 or greater. A formal process consists of preparing an RFQ or bid to be sent to
at least five possible bidders. The bid process must be carried out under the direction of the MDA or its
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 18
representative. The MUNICIPALITY shall choose the lowest priced responsive and responsible bidder that
meets the requirements of the bid in order to meet State and Federal procurement guidelines.
MUNICIPALITY WAGES
As required by the MDA GRANT, any contract executed between the MUNICIPALITY and a
contractor which requires or involves the employment of construction mechanics, defined as skilled or
unskilled mechanics, laborers, workmen, helpers, associates, or apprentices working on projects funded or
anticipated to be funded in any part from any REIMBURSEMENT from the MDA GRANT but not including
executive, administrative, professional, office or custodial employees, shall contain the following terms:
a. Rates of wages and fringe benefits to be paid to each class of construction mechanics by
the MUNICIPALITY and all their contractors shall not be less than the wage and fringe benefit rates
prevailing in the locality in which the work is to be performed.
b. In addition, the MUNICIPALITY and all of their contractors agree to comply with all
pertinent provisions of PA 166 of 1965, "An Act to require prevailing wages and fringe benefits on
State projects; to establish the requirements and responsibilities of contracting agents and bidders;
and to prescribe penalties."
SUCCESSORS AND ASSIGNS BOUND
64. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of them.
NO THIRD-PARTY BENEFIT
65. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to be
subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of any
person, including, but not limited to, any MUNICIPALITY Resident, any Resident's legal representative, any
organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
66. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
NOTICES
67. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or 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.
• 1
CHOICE OF LAW
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 19
•
68. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the context
so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
69. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
70. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
71. This AGREEMENT, consisting of a total of twenty-four (24) pages, including the three pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete and
entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all prior
agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further 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 MUNICIPALITY and the COUNTY
in any way related to the subject matter hereof, except as expressly stated herein.
72. For and in consideration of the mutual promises, acknowledgments, and representations set forth in
this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 20
BY:
•
IN WITNESS WHEREOF, L. BROOKS PATTERSON,
County Executive of the COUNTY OF OAKLAND,
hereby acknowledges that he has been authorized by
a resolution of the Oakland County Board of
Commissioners, a certified copy of which is attached,
to execute this AGREEMENT on behalf of the
COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
L. BRO/OKS PATTERSON,
County Executive
WITNESSED:
IN WITNESS WHEREOF, BONNIE ELLIOTT,
Supervisor of the CHARTER TOWNSHIP OF WHITE
LAKE, hereby acknowledges that he has been
authorized by a resolution of the Township Board of
WHITE LAKE, a certified copy of which is attached, to
execute this AGREEMENT on behalf of the
MUNICIPALITY, and hereby accepts and binds the
MUNICIPALITY to the terms and conditions of this
AGREEMENT on this I). day of
JrAtJuctr y , 2000.
CHARTER TOWNSHIP OF WHITE LAKE:
a Michigan Constitutional and Municipal Corporation
BONNIE ELLIOTT,
Supervisor
BY:
BY:
JOSE
Clerk
HINE SPENCER,
DATE:
DATE: aiz,z.e-a-f-y /a, t.Zooc)
MUNICIPALITY PARTICIPATION AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 21
BY:
ROCHESTER HILLS CITY COUNCIL
RESOLUTION
At a Regular Rochester Hills City Council Meeting held at the Rochester Hills Municipal
Building, 1000 Rochester Hills Drive, Rochester Hills, Oakland County, Michigan, on
Wednesday, January 19, 2000:
Present: Hill, Barnett, Dalton, Duistermars, Golden, Holder, Robbins
Absent: None QUORUM PRESENT
Resolution 2000-0022
MOTION by Robbins, seconded by Barnett,
Resolved, that the Rochester Hills City Council authorizes the execution of the Joint
Operating Agreement to the Oakland County Gypsy Moth Coordinator by the Mayor and
Clerk indicating the intention of this City to participate in the Oakland County Gypsy Moth
Suppression Program in 2000.
Be It Further Resolved, that the Rochester Hills City Council authorizes an amount not
to exceed $28,800 (720 acres x $40) to Oakland County Gypsy ,Moth Suppression
Program for the described gypsy moth management services.
Ayes: Hill, Barnett, Dalton, Duistermars, Golden, Holder, Robbins
Nays: None
Absent: None MOTION CARRIED
I, Beverly A. Jasinski, Rochester Hills City Clerk, do hereby certify that the foregoing is a complete and true copy
of a resolution, the original of which is on file in my office, adopted by the Rochester Hills City Councilat a
Regular Rochester Hills City Council Meeting held thereof on January 19, 2000.
CITY OF ROCHESTER HILLS
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM
This CITY OF ROCHESTER HILLS 2000 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter
"AGREEMENT") is made and entered into between the CITY OF ROCHESTER HILLS, a Michigan
Constitutional and Municipal Corporation whose address is 1000 Rochester Hills Drive, Rochester Hills,
Michigan 48309-3033 (hereafter the "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan
Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan
48341 (hereafter the "COUNTY"). In this AGREEMENT, the COUNTY and/or the MUNICIPALITY may also
be referred to as a "PARTY" or the "PARTIES".
INTRODUCTORY STATEMENTS
The Gypsy Moth infestation presents the potential for immense damage to the many forested and tree filled
landscapes within Oakland County.
Many local governmental units within Oakland County (hereafter "LOCAL UNITS"), including the
MUNICIPALITY, have sought the COUNTY'S assistance in coordinating a large scale treatment program to
help suppress the Gypsy Moth infestation in which the LOCAL UNITS may choose to participate.
The COUNTY, through this AGREEMENT, provides LOCAL UNITS, an opportunity to join this County-wide
program and realize economies of scale, and cost savings, that they could not achieve independently. This
JOINT OPERATING AGREEMENT is entitled the 2000 Oakland County GVDSV Moth Suppression Program
(hereafter the "2000 PROGRAM").
The 2000 PROGRAM is a cooperative effort between the COUNTY and the MUNICIPALITY (and other
eligible participating LOCAL UNITS) which provides that specifically designated areas of qualified forested
MUNICIPALITY acreage will be aerially sprayed with an MDA selected insecticide by an MDA qualified and
approved agricultural pesticide spray contractor in an attempt to minimize MUNICIPALITY tree damage.
NOW THEREFORE, in consideration of these premises and the promises, agreements, representations,
and acknowledgments contained in this AGREEMENT and Attachment "A", which is attached, incorporated,
and made part of this AGREEMENT, it is mutually agreed as follows:
DEFINITIONS
1. As used throughout this AGREEMENT and Attachment "A", whenever any term is defined in this
AGREEMENT and is printed in all uppercase characters, whether in the singular or plural, possessive or
nonpossessive, and/or either within or without quotation marks, it shall be defined, read and interpreted as
provided in this AGREEMENT. Besides the terms "AGREEMENT", "COUNTY", "MUNICIPALITY",
"PARTY", "PARTIES", "LOCAL UNITS",and "2000 PROGRAM" as defined above, the following are also
defined terms in this AGREEMENT:
a. "AGENT" or "AGENTS", when referred to as either an AGENT or AGENTS of the COUNTY
(e.g., COUNTY AGENT), or the MUNICIPALITY (e.g., MUNICIPALITY AGENTS), shall be defined
to include any and all of that PARTY'S officers, elected officials, appointed officials, directors, board
members, council members, authorities, boards, committees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons' successors
or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in
their personal, representative, or official capacities), and/or any and all persons acting by, through,
under, or in concert with any of them. "AGENT" shall also include any person who was an AGENT
any time during this AGREEMENT but for any reason is no longer employed, appointed, or elected
in that capacity. "AGENT", as defined for any purpose in this AGREEMENT, shall NOT include the
PESTICIDE APPLICATOR.
b. "COUNTY COORDINATOR" shall be the individual assigned by the COUNTY to coordinate
and/or perform the many COUNTY responsibilities in the 2000 PROGRAM and under this
AGREEMENT, who shall also be included within the definition of an AGENT of the COUNTY.
c. "CLAIM(S)" shall be defined to include any and all losses, complaints, demands for relief or
damages, suits, causes of action, proceedings, judgments, deficiencies, penalties, costs and
expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness
fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, or any
other amount for which the COUNTY and/or any COUNTY AGENT becomes legally and/or
contractually obligated to pay, or any other liabilities of any kind whatsoever, whether direct, indirect
or consequential, whether based upon any alleged violation of the constitution (federal or state), any
statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise,
and/or whether commenced or threatened and arising out of any alleged breach of any duty by the
MUNICIPALITY or any MUNICIPALITY AGENT under or in connection with this AGREEMENT or
are based on or result in any way from the MUNICIPALITY'S participation in the 2000PROGRAM or
this AGREEMENT.
d. "PESTICIDE APPLICATOR" shall be defined as the person and/or company contracted
with by the COUNTY and licensed in the State of Michigan. The PESTICIDE APPLICATOR shall
be responsible for the AERIAL SPRAYING, as defined herein, and as defined herein the
PESTICIDE APPLICATOR shall include any and all of the PESTICIDE APPLICATOR'S officers,
boards, directors, committees, departments, divisions, trustees, volunteers, employees, agents,
representatives, contractors, subcontractors, predecessors, successors, assigns (whether such
persons act or acted in their personal, representative, or official capacities), and any and all persons
acting by, through, under, or in concert with any of them.
e. "AERIAL SPRAYING" shall be defined as the application of Bacillus thuringiensis
(hereafter, "B.t.") insecticide by the PESTICIDE APPLICATOR during one or more low level
airplane(s) and/or helicopter(s) flights over MUNICIPALITY SPRAY BLOCKS as provided for under
this AGREEMENT.
f. "MUNICIPALITY SPRAY BLOCK" or "MUNICIPALITY SPRAY BLOCKS" shall be defined
as a specifically identified area or areas, which shall also be quantified in terms of the number of
acres included therein, of tree bearing property located entirely within the MUNICIPALITY which
has been selected by the MUNICIPALITY, subject to COUNTY approval, and the required property
owner and/or resident approvals for AERIAL SPRAYING as part of the 2000 PROGRAM. The
MUNICIPALITY SPRAY BLOCKS are specifically identified and described in Attachment "A".
9. "MUNICIPALITY SPRAY COST" or "MUNICIPALITY SPRAY COSTS" shall be defined as
any and all actual amounts paid to the PESTICIDE APPLICATOR by the COUNTY in connection
with the AERIAL SPRAYING of any MUNICIPALITY SPRAY BLOCKS, and shall be determined by
multiplying the total number of acres contained in all MUNICIPALITY SPRAY BLOCKS times the
"AVERAGE COUNTY-WIDE SPRAY COST/ACRE".
h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre
under the 2000 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL
UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE SPRAY COST/ACRE shall
be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE
APPLICATOR in connection with all 2000 PROGRAM AERIAL SPRAYING (in all participating
LOCAL UNITS, including the MUNICIPALITY) by the total number of acres within the County of
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2
Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR in connection with the
2000 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL
SPRAYING by the PESTICIDE APPLICATOR shall be determined by the established pesticide-flow
rates and spray and volume measures taken on any SPRAY DAY(S). The determination of the total
number of acres within the County of Oakland treated by AERIAL SPRAYING by the PESTICIDE
APPLICATOR shall be final. The COUNTY anticipates that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will be less than $32.00 per acre. However, until the total 2000 PROGRAM acreage
to be sprayed is known, the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE can only be
estimated. If this cost/acre should exceed $32.00 per acre, the PARTIES may cancel this
AGREEMENT as provided below.
"SPRAY DAY(S)" shall be defined as the one or more days upon which the AERIAL
SPRAYING of all or part of any MUNICIPALITY SPRAY BLOCKS by the PESTICIDE APPLICATOR
is scheduled by the COUNTY and the PESTICIDE APPLICATOR. SPRAY DAY(S), in all
participating LOCAL UNITS, including the MUNICIPALITY, are expected to occur sometime
between MAY 5, 2000 and June 10, 2000, depending upon such factors as the daily caterpillar
development reports, the weather, temperature, wind conditions, and other last-minute variables
upon which any decision to spray or postpone AERIAL SPRAYING must be based. The COUNTY
and the PESTICIDE APPLICATOR, shall decide the commencement and sequence of all AERIAL
SPRAYING and SPRAY DAY(S).
j. "PENALTIES" shall be defined as any and all additional costs, damages, price increases,
charges, liabilities, penalties, or any other additional monetary costs or amounts or any related legal
obligation incurred by the COUNTY and due to the PESTICIDE APPLICATOR because of any
MUNICIPALITY Default, MUNICIPALITY cancellation of this AGREEMENT except as provided
below, or any MUNICIPALITY decision which reduces, cancels, changes, or withdraws any
MUNICIPALITY SPRAY BLOCK and/or the total MUNICIPALITY SPRAY BLOCKS acreage from
that shown on Attachment "A" except as expressly provided for in this AGREEMENT. The
MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS identified in Attachment
, when combined with those of all other LOCAL UNITS participating in the 2000 PROGRAM, will
be the basis for the PESTICIDE APPLICATOR'S volume based bid and cost/acre for the AERIAL
SPRAYING, and the COUNTY'S subsequent contractual obligation to the PESTICIDE
APPLICATOR. The MUNICIPALITY agrees that any MUNICIPALITY decision to reduce, withdraw,
or change in the MUNICIPALITY SPRAY BLOCK acreage and/or configuration may subject the
COUNTY to certain "PENALTIES" under its contract with the PESTICIDE APPLICATOR. Decisions
by the COUNTY, or any governmental authority other than the MUNICIPALITY to exclude or
prohibit AERIAL SPRAYING of any partial or entire MUNICIPALITY SPRAY BLOCK shall not be
considered a decision by the MUNICIPALITY to change, withdraw, or cancel the AERIAL
SPRAYING of any MUNICIPALITY SPRAY BLOCK for the purposes of assessing any PENALTIES.
COUNTY COORDINATION RESPONSIBILITIES
2. The COUNTY will enter into a contract for all 2000 PROGRAM AERIAL SPRAYING with the
PESTICIDE APPLICATOR, including the development of the required Request for Quotation ("RFQ"),
solicitation and review of all bids, and the final selection and contracting with a qualified PESTICIDE
APPLICATOR to conduct the AERIAL SPRAYING for all MUNICIPALITY SPRAY BLOCKS included in the
2000 PROGRAM. The pesticide applicator contract shall include the following insurance requirements.
INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or
any potential subcontractors:
a. Worker's Compensation Coverage as required by Michigan statute.
Coverage B, Employer's Liability, in the minimum amount of $500,000.00
per coverage.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3
b. If you are a Fixed Base Operator (F.B.0.). you must provide the
following coverage(s):
Comprehensive General Liability Coverage in the minimum amount of
$2,500,000.00 combined single limit and $5,000,000.00 aggregate
coverage covering the following exposures:
premise operation
personal injury
products and completed operations
iv. contractual liability - specifically addressing this contract.
c. If you are not a Fixed Base Operator (F.B.0.), you must provide the
following coverage(s):
Your aircraft liability coverage endorsed to cover premises liability in the
minimum amount of $2,500,000.00 combined single limit per occurrence.
d. Auto Fleet Liability in the minimum amount of $500,000.00 per occurrence
and providing coverage for fuel tenders, if applicable, and coverage for
Michigan No-Fault.
e. Aircraft Liability Coverage in the minimum amount of $2,500,000.00
combined single limit per occurrence and $5,000,000.00 in the aggregate
and must specifically contemplate coverage for aerial spraying. In
addition, coverage for Chemical Drift must be provided with the following
limits:
i. $100,000.00 per person
ii. $300,000.00 per accident (no aggregate)
iii. $100,000.00 per accident property damage
iv. $100,000.00 property damage aggregate.
v. Coverage must include damage to property being treated and the
residential exclusion must be removed. This shall be endorsed to
cover target application.
vi. You also must provide an "Additional Interest Endorsement"
issued naming the County of Oakland and each of the following
local governmental entities (hereafter individually "Municipality" or
collectively "Municipalities") located within the County of Oakland
which will be participating in any resulting Contract with any bidder
as there are going to be Spray Blocks located within these
Municipalities and the County will be contracting with each of the
following Municipalities for participation in this Program.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4
Charter Township of Highland, Charter Township of Orion,
Township of Rose, Charter Township of Springfield, Charter
Township of White Lake, and City of Rochester Hills.
vii. The "Additional Interest Endorsement" required in the Aircraft
Liability Insurance for the County and each of the Municipalities
shall also include any and all of the County's and each
Municipality's elected officials, appointed officials, officers,
employees, volunteers, boards, commissions, councils, and
committees.
f. The County shall receive the appropriate certificates of insurance
providing evidence of the above coverage(s) prior to work being
performed and which shall provide a minimum of 30 days notice to the
County of any cancellation or material change in coverage(s). All
Certificates of Insurance, and/or duplicate policies from CONTRACTOR
shall contain the following clauses:
"The insurance CONTRACTOR(s) issuing the policy or policies
shall have no recourse against COUNTY for payment of any
premiums or for assessments under and form of policy."
"Any and all deductibles in the above described insurance policies
shall be assumed by and be for the account of, and at the sole risk
of, the CONTRACTOR."
"There will be no additional exclusions running to the additional
insured based upon any actions or activities of the named
insured."
All required insurance will be carried with insurance companies
authorized to do business in the State of Michigan.
h. The CONTRACTOR agrees that the COUNTY shall be legally subrogated
to any rights to recover and/or benefits the CONTRACTOR may have in
any insurance policy and to the full extent of any payment under any
insurance policy is required to make the COUNTY whole for any loss and,
and the CONTRACTOR shall cooperate, and perform any act necessary
to secure such rights on behalf of the COUNTY.
The CONTRACTOR agrees that should it fail to satisfy any insurance
obligation as described in Addendum A, the COUNTY, at its sole
discretion, shall have the right to cancel any Contract with the bidder or
Contractor.
Under no circumstances, shall the County have any liability or responsibility for the purchase,
transportation, storage, disposal, or security of any insecticide. In the event of any an order to
cease aerial spraying activities, the County shall not be required to purchase, receive, or be
responsible for any unused insecticide from the Contractor.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5
g.
3. The COUNTY shall act as the fiscal agent for the MUNICIPALITY, subject to the terms of this
AGREEMENT, with regard to the financing and initial payment to the PESTICIDE APPLICATOR for all
MUNICIPALITY SPRAY COSTS. The MUNICIPALITY agrees that, as provided in this AGREEMENT, all
MUNICIPALITY SPRAY COSTS shall always remain the eventual, final, and exclusive financial
responsibility of the MUNICIPALITY.
4. The COUNTY, subject to this AGREEMENT, shall employ such COUNTY AGENTS, provide such
office space, meeting rooms, office and field equipment as necessary to carry out all of the COUNTY'S
responsibilities under this AGREEMENT.
5. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2000
PROGRAM with the MUNICIPALITY who will:
a. Assist the MUNICIPALITY in assessing its Gypsy Moth problem and provide information to
assist MUNICIPALITY officials in deciding whether they wish to participate in the 2000 PROGRAM.
b. Attend various public meetings in the MUNICIPALITY, when the COUNTY deems it
necessary, to explain Gypsy Moth impact on urban forestry and various treatment program options,
the 2000 PROGRAM, and arrange for experts in various aspects of Gypsy Moth infestation to be
available to answer technical questions.
c. Provide the MUNICIPALITY with written materials and information to assist the
MUNICIPALITY in conducting the required Gypsy Moth egg mass evaluations, developing the
required MUNICIPALITY SPRAY BLOCK maps, and attempting to qualify MUNICIPALITY SPRAY
BLOCKS under the 2000 PROGRAM.
d. Provide the MUNICIPALITY with all necessary operational forms so the MUNICIPALITY
can thoroughly understand the program requirements of this AGREEMENT. The COUNTY shall
also provide procedures and/or operating instructions related to MUNICIPALITY SPRAY BLOCK
marking requirements so that the MUNICIPALITY can appropriately train and assign
MUNICIPALITY AGENTS to perform these obligations.
6. The COUNTY shall conduct Gypsy Moth informational and educational activities, issue news
releases before treatment begins, and disseminate Gypsy Moth information to the public via the media. The
COUNTY will provide information and answer questions from the public, community and citizen groups,
LOCAL UNITS, and the media about the Gypsy Moth infestation and AERIAL SPRAYING treatment under
the 2000 PROGRAM.
7. The COUNTY will collect data to determine the effectiveness of the 2000 PROGRAM and begin
plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for
future treatment planning and programs.
8. The COUNTY shall conduct the post treatment evaluation and survey of a random sample of
treated MUNICIPALITY SPRAY BLOCKS and property owners from the treated MUNICIPALITY SPRAY
BLOCKS, using a questionnaire and survey tools to determine the percentage of foliar preservation.
9. The COUNTY shall create and maintain a year-to-year data base on the Gypsy Moth infestation,
including, when possible, information on independent and private Gypsy Moth suppression efforts to capture
trends for future program planning.
10. The COUNTY, subject to the terms of this AGREEMENT, will advance such funds as are necessary
to promptly pay the PESTICIDE APPLICATOR the full amount due and owing for the AERIAL SPRAYING of
all MUNICIPALITY SPRAY BLOCKS upon completion of the AERIAL SPRAYING.
DETERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6
11. The MUNICIPALITY warrants that only those such blocks that have been surveyed for egg mass
density, which in the judgment of the MUNICIPALITY meet the eligibility criteria and are located entirely
within the MUNICIPALITY are included in the MUNICIPALITY SPRAY BLOCKS which are further described
in Attachment "A".
12. The COUNTY shall have the right to reject any MUNICIPALITY SPRAY BLOCKS that in the
COUNTY'S sole judgement and discretion do not meet its criteria for inclusion, or which cannot be safely or
effectively treated by AERIAL SPRAYING as decided by the PESTICIDE APPLICATOR.
13. After COUNTY approval of MUNICIPALITY SPRAY BLOCKS, the permission and approval of all
residents and/or property owners within the proposed MUNICIPALITY SPRAY BLOCKS shall also be
sought. The COUNTY shall notify all property owners in the MUNICIPALITY SPRAY BLOCKS at least 30
days before the projected SPRAY DAY(S) of the planned AERIAL SPRAYING. For these purposes, the
MUNICIPALITY agrees to provide, in such quantities as requested, MUNICIPALITY resident and/or property
owner mailing lists, mailing labels, and any other identifying information necessary to facilitate
communications between the COUNTY COORDINATOR and any resident and/or property owner in any
MUNICIPALITY SPRAY BLOCK.
14. The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any
MUNICIPALITY resident and/or property owner concerning the 2000 PROGRAM by identifying each call or
objection with the individual's name, address, telephone number and parcel number. The MUNICIPALITY
shall promptly forward copies of any entries into such written logs and records to the COUNTY
COORDINATOR. No property or parcel within a MUNICIPALITY SPRAY BLOCK can be scheduled for
AERIAL SPRAYING after the objection of the resident or property owner has been received. The COUNTY
COORDINATOR, or MUNICIPAL AGENT shall contact any objector to ensure that the 2000 PROGRAM is
completely understood and verify that the property owner does not wish their property to be included in the
AERIAL SPRAYING. After being notified, in writing, by the COUNTY of any property owner's exclusions
from the 2000 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust
MUNICIPALITY SPRAY BLOCKS based upon such objections.
MUNICIPALITY SPRAY BLOCK MAPS
15. The MUNICIPALITY agrees to be completely responsible ensuring that, at all times, all
MUNICIPALITY SPRAY BLOCK maps clearly and accurately depict the latest planned MUNICIPALITY
SPRAY BLOCKS scheduled for AERIAL SPRAYING, clearly noting any AERIAL SPRAYING hazards,
restrictions, prohibitions, property owner objections, boundaries, and any non-spray areas within or between
any MUNICIPALITY SPRAY BLOCKS. At least 10 days before the anticipated SPRAY DAY(S) the
MUNICIPALITY shall provide a copy of the then current MUNICIPALITY SPRAY BLOCK maps to the
COUNTY. The MUNICIPALITY agrees that within 24 hours of becoming aware of any required changes to
the MUNICIPALITY SPRAY BLOCK maps provided to the COUNTY, the MUNICIPALITY shall report any
additional changes in writing to the COUNTY COORDINATOR. Before the start of SPRAY DAY(S)
operations, the MUNICIPALITY shall confirm and verify to the COUNTY the accuracy of the AERIAL
SPRAYING maps provided by the MUNICIPALITY. MUNICIPALITY SPRAY BLOCKS shall also be mapped
by the MUNICIPALITY and defined to allow adequate boundary marking for AERIAL SPRAYING. Maps
shall be accompanied by a written summary that identifies for each proposed MUNICIPALITY SPRAY
BLOCK the number of homes and the number of acres to be sprayed within each MUNICIPALITY SPRAY
BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY
BLOCKS for public inspection.
MUNICIPALITY SPRAY DAY(S) OBLIGATIONS
16. The MUNICIPALITY agrees that because of the many factors which must be considered for
effective AERIAL SPRAYING to suppress Gypsy Moths, any scheduling of SPRAY DAY(S) within the
MUNICIPALITY will by necessity occur on very short notice, often less than 24 hours. The MUNICIPALITY
agrees to make the necessary staffing and planning arrangements and adjust, as necessary, any
MUNICIPALITY AGENTS work schedules (including possible weekend and/or holiday SPRAY DAY(S)), to
meet its SPRAY DAY(S) obligations on such short notice.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7
17. Before any AERIAL SPRAYING operations commence on SPRAY DAY(S), the MUNICIPALITY
shall be responsible for assuring that all non-spray areas are adequately marked off with balloons so that
the pilot conducting the AERIAL SPRAYING can visually distinguish the MUNICIPALITY SPRAY BLOCKS
from adjacent non-spray areas. The MUNICIPALITY agrees to be responsible for the prompt removal of all
balloons and/or any other abandoned or discarded SPRAY DAY(S) materials after SPRAY DAY(S)
operations have been completed.
18. The MUNICIPALITY agrees to furnish, at its own expense, each MUNICIPALITY AGENT
participating in SPRAY DAY(S) operations, including each balloon crew, a cellular telephone for
communicating with the COUNTY COORDINATOR. Except for marking balloon related supplies (e.g.,
balloons, string, etc.), the MUNICIPALITY agrees that it shall be exclusively responsible for providing all
MUNICIPALITY AGENTS with all necessary tools, maps, MUNICIPALITY SPRAY BLOCK maps,
transportation, vehicles, and all other tools and equipment that the MUNICIPALITY, in its sole judgment,
deems are required or beneficial for the completion of any MUNICIPALITY responsibilities under this
AGREEMENT. Except as expressly provided for above (i.e., marking balloons, string, etc.), the
MUNICIPALITY agrees that neither the COUNTY nor any COUNTY AGENT shall be required to provide,
furnish, or assign any MUNICIPALITY AGENT with any tools, supplies, or equipment necessary for the
performance of any MUNICIPALITY duty or obligation under this AGREEMENT. This paragraph is not
intended to include any Township obligations for safety precautions under the exclusive control and
supervision of any other governmental agency or entity such as the FAA or the Michigan Department of
Agriculture, or under the sole and exclusive control of the pesticide applicator.
MUNICIPALITY RESPONSIBILITY FOR SAFETY AND COMPLIANCE WITH LAWS
19. The MUNICIPALITY and MUNICIPAL AGENTS shall be responsible for compliance with all federal,
state, and local laws, ordinances, regulations, and agency requirements in any manner affecting the work or
performance of this AGREEMENT. In this regard the MUNICIPALITY shall cooperate and assist in securing
all necessary certificates and permits from such public authorities as may be required for AERIAL
SPRAYING in the MUNICIPALITY. This is not intended to include any Township obligations for safety
precautions under the exclusive control and supervision of any other governmental agency or entity. The
MUNICIPALITY will provide, install and maintain any warning signs and barricades necessary for the
protection of persons and property which may be affected by AERIAL SPRAYING, and will notify the
COUNTY COORDINATOR and other persons directly affected by AERIAL SPRAYING of any potentially
dangerous situation. In case of an emergency affecting the safety of any persons or property, the
MUNICIPALITY and its AGENTS shall act immediately to prevent threatened loss or damage by attempting
to stop any activity or operation affecting safety until the situation is corrected.
MUNICIPALITY AGENTS AND STAFFING
20. The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON".
The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2000
PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the
administration of the 2000 PROGRAM within the MUNICIPALITY.
21. The MUNICIPALITY agrees that it shall employ, train, and assign as many qualified MUNICIPALITY
AGENTS as it deems necessary to perform all MUNICIPALITY obligations under this AGREEMENT. The
MUNICIPALITY AGENTS shall be employed and assigned based on appropriate qualifications and other
factors as decided by the MUNICIPALITY. The MUNICIPALITY agrees that it shall be solely responsible for
furnishing all MUNICIPALITY AGENTS with all job instructions, job descriptions and job specifications and
shall otherwise control, supervise, train or direct MUNICIPALITY AGENTS in the performance of any
MUNICIPALITY duties or obligations under this AGREEMENT. The MUNICIPALITY agrees that the
COUNTY shall have no liability or obligation in this regard.
22. The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS
participating in the 2000 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all
2000 PROGRAM preparations and operations and otherwise conform their activities to comply with the
MUNICIPALITY'S obligations under this AGREEMENT in a timely and responsible manner.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8
23. The MUNICIPALITY agrees that no MUNICIPALITY AGENT, either as a result of or arising out of
any act(s) by any MUNICIPALITY AGENT in the performance of any duty under this AGREEMENT, shall be
considered or asserted to be a COUNTY employee or COUNTY AGENT. The MUNICIPALITY agrees that
it shall be solely and completely liable for any and all MUNICIPALITY AGENTS' past, present, or future
wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or
reimbursements of any kind, including, but not limited to, workers' disability compensation benefits,
unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or
any other statutory or contractual right or benefit based on or in any way related to any MUNICIPALITY
AGENT'S employment status or any alleged violation of any MUNICIPALITY AGENT'S statutory,
contractual, constitutional, or civil rights by the MUNICIPALITY, the COUNTY or any COUNTY AGENT.
The MUNICIPALITY agrees to indemnify and hold harmless the COUNTY from and against any and all
CLAIM(S) which are imposed upon, incurred by, or asserted against the COUNTY or any COUNTY AGENT
by any MUNICIPALITY AGENT and/or which are based upon, result from, or arise from, or are in any way
related to any MUNICIPALITY AGENT'S wages, compensation, benefits, or other employment-related or
based rights, including, but not limited to, those described in this Paragraph.
MUNICIPALITY FINANCIAL OBLIGATION TO COUNTY
24. In consideration of the COUNTY'S promises and efforts under this AGREEMENT, the
MUNICIPALITY agrees to pay the COUNTY the full amount of any and all:
a. MUNICIPALITY SPRAY COSTS, including, but not limited to, any amounts that the
COUNTY advanced, paid, or incurred in connection with the AERIAL SPRAYING of any
MUNICIPALITY SPRAY BLOCKS, AND
b. PENALTIES, as defined in this AGREEMENT.
25. The PARTIES agree that the COUNTY shall have no obligation to offset, defray, and/or provide any
financial support to the MUNICIPALITY in connection with the 2000 PROGRAM to defray or offset any
MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2000
PROGRAM except as expressly provided for in this AGREEMENT. The MUNICIPALITY agrees that any
and all such MUNICIPALITY SPRAY COSTS and any PENALTIES, shall at all times remain the sole
financial responsibility of the MUNICIPALITY.
26. The MUNICIPALITY agrees that any amount due and owing to the COUNTY under this AGREEMENT,
which is still unpaid at the time the COUNTY distributes funds to the MUNICIPALITY from the Delinquent
Tax Revolving Fund (DTRF), the COUNTY shall be entitled to reduce, set-off, and permanently retain any
amount due to the MUNICIPALITY from Delinquent Tax Revolving Fund (DTRF) by any such amount then
still due and owing the COUNTY pursuant to this AGREEMENT.
COUNTY INVOICES TO MUNICIPALITY
28. On or about March 30, 2000, the COUNTY shall prepare and forward to the MUNICIPALITY an
invoice for payment to the COUNTY for MUNICIPALITY SPRAY COSTS. The MUNICIPALITY agrees to
pay the full amount shown on or before May 1, 2000, or no later than 15 days after the invoice date,
whichever date is later.
MUNICIPALITY RECORD KEEPING
29. The MUNICIPALITY shall complete all documents as required and cooperate with the COUNTY in
supplying all necessary or required information to the COUNTY on a timely basis.
MUNICIPALITY PROVIDED INSURANCE
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9
30. The MUNICIPALITY shall provide such insurance as will protect it from liabilities set forth below,
which may arise out of or result from the MUNICIPALITY'S participation in the 2000 PROGRAM under this
AGREEMENT, whether such liabilities arise out of the actions of the MUNICIPALITY or any MUNICIPALITY
AGENT, or by anyone for whose acts any of them may be liable.
a. Liabilities under workers' disability compensation, disability benefit and other similar
employee benefit act. Any non-resident MUNICIPALITY AGENT (e.g., subcontractors) shall have
insurance for benefits payable under Michigan's Workers' Disability Compensation Law for any
employee resident of and hired in Michigan; and as respects any other employee protected by
workers' disability compensation laws of any other state. The MUNICIPALITY shall have insurance
or participate in a mandatory state fund to cover the benefits payable to any MUNICIPALITY
AGENT.
b. Liabilities for damages because of bodily injury, occupational sickness or disease, or death
of his employees.
c. Liabilities for damages because of bodily injury, sickness or disease, or death of any person
other than any MUNICIPALITY AGENT, subject to limits of liability of not less than $300,000 each
occurrence and, when applicable $300,000 annual aggregate, for non-automobile hazards and as
required by law for automobile hazards.
d. Liabilities for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom, subject to a limit of liability of not less than $50,000 each occurrence
for non-automobile hazards and as required by law for automobile hazards.
e. Insurance for the preceding two (2) subparagraphs non-automobile hazards on a combined
single limit of liability basis shall not be less than $300,000 each occurrence and when applicable,
$300,000 annual aggregate. The insurance shall be written for not less than any limits of liability
herein specified or required by law, whichever is greater, and shall include contractual liability
insurance as applicable to the MUNICIPALITY'S obligations under the indemnification provisions of
this AGREEMENT.
MUNICIPALITY INDEMNIFICATION OF COUNTY
31. The MUNICIPALITY agrees to indemnify, defend, and hold harmless the COUNTY and/or any
COUNTY AGENT from any CLAIM(S), loss or damage connected to or resulting from any work done by the
MUNICIPALITY and/or any MUNICIPALITY AGENT(S) under this AGREEMENT, unless such loss or
damage is caused by the MUNICIPALITY and/or MUNICIPALITY AGENT(S) following direct instructions
from a COUNTY AGENT(S).
32. The MUNICIPALITY shall be solely and completely responsible for all other actions of any
MUNICIPALITY AGENT(S).
The COUNTY shall be responsible for all actions of its AGENTS.
DISCLAIMER OF ANY COUNTY WARRANTY
33. The MUNICIPALITY acknowledges that its decision to participate in the 2000 PROGRAM and enter
this AGREEMENT is voluntary and with full knowledge, and that it is under no obligation to participate. In
making this decision, the MUNICIPALITY has relied entirely upon its own investigation, and/or has had
ample opportunity to conduct such an investigation, of all material facts, applicable laws, and all such other
circumstances that might influence upon the MUNICIPALITY'S decision to enter this AGREEMENT.
34. The MUNICIPALITY agrees that this AGREEMENT does not and is not intended to create or
include any COUNTY warranty, promise, or guaranty, either express or implied, of any kind or nature
whatsoever, including any IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR
ANY PARTICULAR PURPOSE in favor of the MUNICIPALITY, any MUNICIPALITY AGENTS, or any
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10
property owner or any other person residing in the MUNICIPALITY that the AERIAL SPRAYING component
of the 2000 PROGRAM will result in any specific reduction or prevention of any damage to any tree by
Gypsy Moths, any restoration or benefit to any tree already infested or weakened by Gypsy Moths, or that
the 2000 PROGRAM and/or AERIAL SPRAYING contemplated therein is either safe or effective, or the
safest and most effective means of suppressing the Gypsy Moth infestation, or any other performance-
based 2000 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of
the 2000 PROGRAM, including, but not limited to, the decision to use AERIAL SPRAYING for the delivery of
insecticide, the choice of insecticide, the insecticide application rates, the timing of such applications, etc.,
have been established under the terms of this AGREEMENT in which the MUNICIPALITY has voluntarily
consented to participate and assume all risks described and outlined in this AGREEMENT.
LIMITATION OF LIABILITY
35. Except as expressly provided otherwise in this AGREEMENT, in no event shall the PARTIES be
liable for any indirect, incidental, special or consequential damages, or damages incurred by either PARTY
or any third person, whether in an action in contract or tort, whether or not the other PARTY has been
advised of the possibility of such damages. The COUNTY'S liability for any damages hereunder shall in no
event exceed the total MUNICIPALITY SPRAY COST amounts paid by MUNICIPALITY to the COUNTY.
This AGREEMENT is intended to allocate the risks between the COUNTY and the MUNICIPALITY, and the
PARTIES agree that the allocation of each PARTY'S efforts, costs, and obligations under this AGREEMENT
reflect this allocation of risk and the limitations of liability specified herein.
36. The COUNTY was limited in the selection and contract terms with the PESTICIDE APPLICATOR.
The MUNICIPALITY, accordingly, agrees to waive any CLAIM(S) or liability against the COUNTY for any
material defects, errors, mistakes, negligence, or omissions in the PESTICIDE APPLICATOR RFQ, the bid
specifications, the bid procedure, the bid award process, the PESTICIDE APPLICATOR contract negotiation
process, the preparation or execution of the PESTICIDE APPLICATOR contract, or any other errors or
mistakes of fact by the COUNTY in the selection of the PESTICIDE APPLICATOR. The MUNICIPALITY
agrees that at all times and for all purposes under this AGREEMENT the PESTICIDE APPLICATOR
relationship to the COUNTY shall be that of an INDEPENDENT CONTRACTOR and not a COUNTY
AGENT as defined herein. The MUNICIPALITY hereby agrees to waive any CLAIM(S) or liability against
the COUNTY based in any manner upon any act or omission of the PESTICIDE APPLICATOR.
CANCELLATION
37. Either the COUNTY or the MUNICIPALITY may cancel this AGREEMENT for any reason without
incurring any penalty or liability to any PARTY as a result before March 1, 2000, by delivering a written
notice of cancellation of this AGREEMENT to the other PARTY.
38. The COUNTY may also cancel this AGREEMENT at anytime should the MUNICIPALITY
"DEFAULT" on any obligation under this AGREEMENT. "DEFAULT" is defined as the failure of the
MUNICIPALITY and/or any MUNICIPALITY AGENT to fulfill any MUNICIPALITY obligations under this
AGREEMENT. If time permits, but not otherwise, upon DEFAULT the COUNTY shall notify the
MUNICIPALITY in writing of any DEFAULT and provide the MUNICIPALITY an opportunity to correct the
situation. If after a reasonable period to cure the DEFAULT, the MUNICIPALITY has not corrected the
circumstances giving rise to the notice, the COUNTY may cancel this AGREEMENT and terminate the
MUNICIPALITY'S further participation in the 2000 PROGRAM.
39. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2000 PROGRAM acreage
for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY-WIDE SPRAY
COSTS/ACRE will exceed $32.00 per acre, the COUNTY shall notify the MUNICIPALITY in writing of the
then anticipated cost. The MUNICIPALITY, within five days after the receipt of such notice, but in no event
after the SPRAY DAY(S) have been scheduled, may cancel this AGREEMENT by a written notice to the
COUNTY. If the MUNICIPALITY cancels this AGREEMENT, based upon these higher than anticipated
costs, as provided for in this Paragraph, all MUNICIPAL SPRAY COSTS that the MUNICIPALITY paid to the
COUNTY, less any applicable PENALTIES for which the MUNICIPALITY is obligated, shall be returned to
the MUNICIPALITY. The COUNTY may also unilaterally cancel this AGREEMENT should it appear that the
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11
AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE will exceed $32.00 and shall have no further obligation
to the MUNICIPALITY under this AGREEMENT.
2000 PROGRAM CHANGES
40. The MUNICIPALITY agrees that after March 1, 2000, should any MUNICIPALITY decision to cancel
this AGREEMENT or otherwise change the total number acres or the configuration of any MUNICIPALITY
SPRAY BLOCKS from that shown in Attachment "A" for any reason result in the COUNTY incurring any
PENALTIES, as defined above, the MUNICIPALITY shall be liable and obligated to pay to the COUNTY the
full amount of any and all PENALTIES incurred by the COUNTY. The MUNICIPALITY agrees that any
amount due and owing to the COUNTY as PENALTIES shall be above and beyond any other amounts
otherwise due and owing to the COUNTY under this AGREEMENT. The MUNICIPALITY shall not be
permitted to add, delete, substitute or change the configuration of any MUNICIPALITY SPRAY BLOCKS as
shown on Attachment "A" without the written approval of the COUNTY.
FORCE MAJEURE
41. The COUNTY shall not be liable to the MUNICIPALITY or any person for failure or delay in
performance of any AERIAL SPRAYING obligation under this AGREEMENT if such failure or delay is
caused by circumstances beyond the control of the COUNTY, including, without limitation, failures resulting
from weather delays, premature or delayed development of the Gypsy Moth caterpillars, high winds, unsafe
flying conditions, circumstances that make the effectiveness of AERIAL SPRAYING to suppress the
infestation less than optimal, accidents, labor stoppages, war, any default by the PESTICIDE APPLICATOR,
the inability to secure necessary materials or labor, governmental acts or regulations, acts of God, or other
causes beyond the COUNTY'S control, whether or not similar to those above. The COUNTY agrees that, in
any such event, the COUNTY shall communicate that fact to the MUNICIPALITY when such fact(s)
becomes reasonably known.
EFFECT OF CANCELLATION OR TERMINATION
42. The MUNICIPALITY agrees that any and all MUNICIPALITY 2000 PROGRAM obligations,
including, but not limited to, any and all indemnification and hold harmless promises, insurance coverage(s),
waivers of liability, liabilities, audit requirements, record-keeping requirements, any MUNICIPALITY payment
obligations to the COUNTY, 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 before the cancellation or completion of this AGREEMENT, shall
survive the cancellation or completion of this AGREEMENT. The expiration, cancellation, or termination of
this AGREEMENT shall be without prejudice to any rights or claims of either PARTY against the other and
shall not relieve either PARTY of any obligations which, by their nature, survive expiration or termination of
this AGREEMENT.
2000 PROGRAM COMPLETION
43. The AGREEMENT will be deemed completed when all MUNICIPALITY SPRAY BLOCKS have
received the AERIAL SPRAYING planned, or when the Gypsy Moth larvae are too mature to be suppressed
by AERIAL SPRAYING, or when 60% or more of the forest canopy has already been defoliated as
determined by the COUNTY.
NO DELEGATION OF ANY GOVERNMENTAL AUTHORITY
44. The PARTIES reserve to themselves any rights and obligations related to the provision of any and
all of each PARTY'S respective governmental services, authority, responsibilities, and obligations. Except
as expressly provided otherwise herein, this AGREEMENT does not, and is not intended to, create,
diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other
legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity,
or authority of either the MUNICIPALITY or the COUNTY to any other person or PARTY.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12
45. The PARTIES agree that they may not assign, delegate, contract, subcontract or otherwise,
transfer, promise, commit, or lend the other PARTY'S responsibilities, services, obligations, or duties under
this AGREEMENT to any other person and/or public or private corporation, entity, or organizations of any
kind except as expressly provided herein.
AGREEMENT APPROVAL AND AMENDMENT
46. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the
COUNTY Board of Commissioners and the governing City Council of the MUNICIPALITY. The approval
and terms of this AGREEMENT shall be entered in the official minutes and proceedings of the COUNTY
Board of Commissioners and governing City Council of the MUNICIPALITY and shall also be filed with the
office of the Clerk for the COUNTY and the MUNICIPALITY. In addition, this AGREEMENT, and any
subsequent amendments, shall be filed with the Secretary of State for the State of Michigan by the
COUNTY and shall not become effective or implemented prior to its filing with the Secretary of State.
47. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent
resolutions of the COUNTY Board of Commissioners and the governing City Council of the MUNICIPALITY.
This AGREEMENT shall not be changed, supplemented, or amended except as provided for herein, and no
other act, verbal representation, document, usage or custom shall be deemed to amend or modify this
AGREEMENT.
AUDIT AND RECORD ACCESS
48. The COUNTY shall have the right to audit the MUNICIPALITY from time to time, after reasonable
written notice of its intended audit, in order to assess the MUNICIPALITY'S compliance with the terms of
this AGREEMENT and to determine whether the MUNICIPALITY is following generally accepted accounting
standards.
49. The COUNTY shall have the right to initiate any audit for a period of three (3) years after the
expiration of this AGREEMENT. Any audit initiated within this three (3) year period shall be concluded or
otherwise terminated no later than four (4) years after the expiration of this AGREEMENT.
SUCCESSORS AND ASSIGNS BOUND
50. The Parties agree that this AGREEMENT shall be binding upon each of them and, to the extent
permitted by law, upon their administrators, contractors, subcontractors, representatives, executors,
trustees, successors and assigns, and all persons acting by, through, under, or in concert with any of them.
NO THIRD-PARTY BENEFIT
51. Except as expressly provided herein for the benefit of the PARTIES, this AGREEMENT does not,
and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise,
benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) and/or any right to be
subrogated to any PARTY's rights in this AGREEMENT, and/or any other right of any kind, in favor of any
person, including, but not limited to, any MUNICIPALITY resident, any legal representative, any
organization, any alleged unnamed beneficiary or assignee, and/or any other person.
SEVERABILITY
52. Except as otherwise expressly provided for in this AGREEMENT, should any term or provision of
this AGREEMENT be declared or be decided by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions of this AGREEMENT shall not be affected thereby. Notwithstanding
the above, to the extent that any MUNICIPALITY promise to indemnify and hold harmless the COUNTY in
this AGREEMENT may become unenforceable or uncollectible, the MUNICIPALITY shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law toward the payment and
satisfaction of any CLAIM(S) against the COUNTY.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13
NOTICES
53. The PARTIES shall send, by first class mail, all correspondence and written notices required or
permitted by this AGREEMENT to the other PARTY'S signatory to this AGREEMENT, or that signatory's
successor in office, to the addresses shown in this AGREEMENT. All correspondence or 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.
CHOICE OF LAW
54. 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 under all circumstances 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, possessive or nonpossessive, shall be deemed to include the other whenever the context
so suggests or requires.
NO IMPLIED WAIVERS OF RIGHTS UNDER THIS AGREEMENT
55. Absent an express written waiver, the failure of any PARTY to pursue any right granted under this
AGREEMENT shall not be deemed a waiver of that right regarding any existing or subsequent breach or
default under this AGREEMENT. No failure or delay by any PARTY in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right,
power or privilege preclude any other or further exercise of any other right, power or privilege.
CAPTIONS
56. The paragraph numbers, headings, and captions contained in this AGREEMENT are intended for
the convenience of the reader and not intended to have any substantive meaning and/or be interpreted as
part of the AGREEMENT.
CONCLUSION
57. This AGREEMENT, consisting of a total of nineteen (19) pages, including the four pages of
Attachment "A" which is incorporated into and made part of this AGREEMENT, constitutes the complete and
entire AGREEMENT between the MUNICIPALITY and the COUNTY and fully supersedes any and all prior
agreements or contemporaneous representations or understandings, verbal or oral, between them
concerning and in any way related to the subject matter of this AGREEMENT. It is further 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 MUNICIPALITY and the COUNTY
in any way related to the subject matter hereof, except as expressly stated herein.
58. For and in consideration of the mutual promises, acknowledgments, and representations set forth in
this AGREEMENT, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the COUNTY and the MUNICIPALITY hereby agree to be bound by the above terms and
provisions.
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14
BY:
DATE: DATE: / - c. c)
IN WITNESS WHEREOF, L. BROOKS PATTERSON,
County Executive of the COUNTY OF OAKLAND,
hereby acknowledges that he has been authorized by
a resolution of the Oakland County Board of
Commissioners, a certified copy of which is attached,
to execute this AGREEMENT on behalf of the
COUNTY, and hereby accepts and binds the
COUNTY to the terms and conditions of this
AGREEMENT on this day of , 2000.
FOR THE COUNTY OF OAKLAND:
a Michigan Constitutional and Municipal Corporation
BY:
L. BRO9KS PATTERSON,
County xecutive
WITNESSED:
BY:
IN WITNESS WHEREOF, PAT SOMERVILLE,
Mayor of the CITY OF ROCHESTER HILLS, hereby
acknowledges that he has been authorized by a
resolution of the City Council of ROCHESTER HILLS,
a certified copy of which is attached, to execute this
AGREEMENT on behalf of the MUNICIPALITY, and
hereby accepts and binds the MUNICIPALITY to the
terms and conditions of this AGREEMENT on this
day of , 2000.
CITY OF ROCHESTER HILLS:
a Michigan Constitutional and Municipal Corporation
PAT SOMERVILLE,
Mayor
BY:
BEVERLfi A. J66INSKI,
CIek
JOINT OPERATING AGREEMENT
2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15
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JOINT OPERATING AGREEMENT- 2000 OAKLAND COUNTY GYPSY MOTH PROGRAM - ATTACHMENT -A"
Page V of V
MUNICIPALITY SPRAY BLOCKS