Loading...
HomeMy WebLinkAboutResolutions - 2001.02.22 - 26396MISCELLANEOUS RESOLUTION # 01046 February 22,2001 BY: PUBLIC SERVICES COMMITTEE, DAVID MOFFITT, CHAIRPERSON IN RE: PUBLIC SERVICES DEPARTMENT/MSU EXTENSION - 2001 GYPSY MOTH SUPPRESSION PROGRAM JOINT BIDDING UNIT To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: 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 provides local units an opportunity to join this County-wide program and realize economies of scale, cost savings, that local units could not achieve independently; and WHEREAS the County has chosen to assist qualifying local units by participating in both a state- wide treatment program developed by the Michigan Department of Agriculture (MDA) entitled the, "2001 Michigan Department of Agriculture Cooperative Gypsy Moth Suppression Program"; and a parallel program entitled the "2001 Oakland County Gypsy Moth Suppression Program" for local units choosing to spray at lower insect infestation levels; and WHEREAS the Urban Cooperation Act (MCL 124.501 et.seq.) provides legislation which enables Oakland County to enter into inter-local agreements; and WHEREAS the County of Macomb wishes to combine acreage with Oakland County and form a joint bidding unit, solely for the bidding process, to realize economies of scale; and WHEREAS the Counties would issue a single Request for Quotation to potential contractors for the aerial application of Bacillus thuringiensis, commonly known as B.t., each county will enter into an individual contract with the selected contractor; and WHEREAS this bidding unit in no way compromises the specific requirements of Oakland County for the aerial application and enables the County to realize the same cost savings; and WHEREAS the attached JOINT BIDDING AGREEMENT between the Counties of Oakland and Macomb is submitted for Board action. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves entering into the attached JOINT BIDDING AGREEMENT with the above named county, and authorizes the Oakland County Executive to execute this Agreement on behalf of the County of Oakland. Chairperson, on behalf of the Public Services Committee, I move adoption of the foregoing resolution. PUBLIC SERVICES COMMITTEE: Motion carried unanimously on a roll call vote with Obrecht absent. L. BROOKS PATTERSQN, Executive and.county }IN HERTEL, Chairman Macomb County Board of Commissioners JOINT BIDDING AGREEMENT The parties hereto, the Counties of Macomb and Oakland, Michigan (hereinafter "COUNTIES"), in an effort to reduce costs and enjoy some economies of scale by combining the acreage in Macomb and Oakland to be sprayed for infestations of Lymantria dispar, commonly known as the gypsy moth, agree as follows: 1. The COUNTIES hereby agree to issue a single Request for Quotations to potential contractors for the aerial spraying of acreage in all counties. 2. The COUNTIES agree that by jointly issuing a Request for Quotations, each County will utilize the same contractor for aerial spraying. 3. The COUNTIES agree that each County will individually enter into a contract for aerial spraying with the mutually selected contractor. 4. The COUNTIES agree that Oakland County will act as the -"host" county for purposes of the bidding process. 5. This Agreement to join together as a contracting unit is for the 2001 Cooperative Gypsy Moth Suppression Program. Dated: Dated: «CVT» JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM This «CVT» 2001 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT') is made and entered into between the «CVT», a Michigan Constitutional and Municipal Corporation whose address is «ADDRESS», «CITY», «STATE» «ZIP» (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 2001 Oakland County Gypsy Moth Suppression Program (hereafter the "2001 PROGRAM"). The 2001 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 "2001 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 2001 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 2001 PROGRAM 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 2001 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". JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre under the 2001 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 2001 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 2001 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 $35.00 per acre. However, until the total 2001 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTY-WIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $35.00 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, 2001 and June 10, 2001, 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 "A", when combined with those of all other LOCAL UNITS participating in the 2001 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 2001 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 2001 PROGRAM. The contract shall include the following insurance requirements. JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3 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: i. premise operation ii. 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. JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 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. Township of Rose, Charter Townhsip of Springfield and the 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. JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 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. (A-20) Notwithstanding Paragraph IB-2 in the RFQ, and 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. 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 2001 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 2001 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 2001 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 2001 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 2001 PROGRAM. 7. The COUNTY will collect data to determine the effectiveness of the 2001 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 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 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 2001 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 2001 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 2001 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 JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 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. 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, JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 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 2001 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2001 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 2001 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2001 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. 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 AGENTS 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.d 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: e. 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. JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 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 2001 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2001 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 27. On or about March 30, 2001, 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, 2001, or no later than 15 days after the invoice date, whichever date is later. MUNICIPALITY RECORD KEEPING 28. 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 29. 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 2001 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. f. 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. 9. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. h. 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. 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. j. 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 JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 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 30. 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). 31. 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 32. The MUNICIPALITY acknowledges that its decision to participate in the 2001 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. 33. 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 2001 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 2001 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 2001 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2001 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 34. 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. JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 • CHOICE OF LAW 53. 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 54. 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 55. 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 56. This AGREEMENT, consisting of a total of eighteen (18) 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. 57. 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 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 BY: BY: L. BROOKS PATTERSON, County Executive «SupervisorMayor», «Title» 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 , 2001. IN WITNESS WHEREOF,«SupervisorMayor», «Title» of the «CVT», hereby acknowledges that «HeShe» has been authorized by a resolution of the «Governing_Body» of «CVT», 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 , 2001. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation a Michigan Constitutional and Municipal Corporation WITNESSED: «Clerk», Clerk JOINT OPERATING AGREEMENT 2001 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 THE FOREGOING RESOLtir - I p. $ I Resolution #01046 February 22, 2001 Moved by Crawford supported by Gregory the resolution be adopted. AYES: Appel, Brian, Buckley, Causey-Mitchell, Crawford, Douglas, Galloway, Garfield, Gregory, McPherson, Melton, Millard, Moss, Patterson, Sever, Suarez, Taub, Webster, Amos. (19) NAYS: None. (0) A sufficient majority having voted therefor, the resolution was adopted. axy5 L. titters on. County Executive Date STA'.7E 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 Oak:and County Board of Commissioners on February 22, 2001 with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 22 .4d day/tf February, 2001. William Caddell, County Clerk