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HomeMy WebLinkAboutResolutions - 2004.05.06 - 27601MISCELLANEOUS RESOLUTION #04 118 May 6, 2004 BY: Public Services Committee, Hugh D. Crawford, Chairperson IN RE: DEPARTMENT OF PUBLIC SERVICES/MSU EXTENSION — 2004 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 2004 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 Bacillus thuringiensis by an MDA qualified and licensed agricultural pesticide spray contractor in a attempt to minimize municipal tree damage; and WHEREAS the County has chosen to assist local units by providing a program entitled the "2004 Oakland County Gypsy Moth Suppression Program" for local units choosing to spray at lower insect thresholds that do not qualify for MDA Gypsy Moth program; enabling the realization of economies of scale; and WHEREAS the Cities of Auburn Hills and Rochester Hills, and the Townships of Addison, Oakland, Orion, Oxford, and Waterford has submitted acreage for the 2004 program; and WHEREAS the attached 2004 Oakland County Gypsy Moth Suppression Program Joint Operating Agreement is submitted for Board action. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves entering into the attached JOINT OPERATING AGREEMENT - 2004 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- 2004 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, the Oakland County Board of Commissioners authorizes the Oakland County Executive to execute and enter into each of these Agreements 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 Public Services Committee Vote: Motion carried on a roll call vote with Potter absent. to "-."1 .ç fl ;tar- r‘ CO' TOWNSHIP OF ADDISON JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM c, ri;;IG7 This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT') iste ae entered into between the TOWNSHIP OF ADDISON, a Michigan Constitutional and Municipal rporation whose address is 1440 Rochester Road, Leonard, MI 48367 (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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 "2004 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 ' any and all of that PARTY'S officers, elected officials, appointed officials, directors, boi- embers, council members, authorities, boards, committees, commissions, JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM — Page 1 cr.). 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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 2004 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 COUNTY to the PESTICIDE APPLICATOR in connection with all 2004 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 2004 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ 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 2004 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Township of Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter Township of Waterford, the City of Auburn Hills, 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: 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." "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. (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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 g. 3. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM. 8.The COUNTY will collect data to determine the effectiveness of the 2004 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. 9. 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 tool to determine the percentage of foliar preservation. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 10. The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 SPRAY BLOCK, The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection. MUNICIPALITY SPRAY DAY(S) OBLIGATIONS 17 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. 18. 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. 19. 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 20 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 22d 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 AGENTS 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 AGENTS 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 28: On or about April 30, 2004, 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 June 1, 2004, 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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. 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). 33. The COUNTY shall be responsible for all actions of its AGENTS. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35. 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 38. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYWIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 that, by their nature, survive expiration or termination of this AGREEMENT. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 2004 PROGRAM COMPLETION 44. 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 51. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 NO THIRD-PARTY BENEFIT 52. 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 53. 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 uncollectable, 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 54, 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 55. 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 56. 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 57. 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 58. This AGREEMENT, consisting of a total of seventeen (17) pages, including the one page 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation BY: L. BROOKS`PATTERSON County Executive WITNESSED: BY: IN WITNESS WHEREOF, A. Robert Koski, of the TOWNSHIP OF ADDISON, hereby acknowledges that has been authorized by a resolution of the of, 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 termsrd condippn% of this AGREEMENT on this 3"day of 11.4-6-- ,2004. TOWNSHIP OF ADDISON: a Michigan Constitutional and Municipal Corporation BY a evtat ‘dj" A. ROBERT KOSKI, Supervisor BY: PAULINE BENNETT, Clerk DATE: DATE: JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 Block 4 4 of Homes # of Visitors Priority Categories 2 I 3 Acres) 4 1 49 15 k 0Q1 i 58 f2 Total Total Total Year 2004 Page 1 of 1 TOWNSHIP — Treatment Acreage Summary ADDISON TOWNSHIP Total Total Total Total Category 1 Category 2 & 3 Category 4 & 5 Residential-multiple Public & private recreational Public & private special use 2904 JOINT OPERATING AGREEMENT GYPSY MOTH PROGRAM ATTACHMENT "A' Page 1 of 1 • CITY OF AUBURN HILLS JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT') entered into between the CITY OF AUBURN HILLS, a Michigan Constitutional and Municia whose address is 1827 North Squirrel Road, Auburn Hills, MI 48326-2753 (hereafter the "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan Constitutional and Municilla whose address is 1200 North Telegraph Road, Pontiac, Michigan 48341 (hereafter the "C this AGREEMENT, the COUNTY and/or the MUNICIPALITY may also be referred to as a "PARTIES". CO C7-4 rn -0 77" c") rn • rri adexand CorptatiorVi CorptrelatiorT- -i- TY")c=ln TY"-ei the- 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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 "2004 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 1 • 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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 2004 PROGRAM for all acres treated by AERIAL SPRAYING in all JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 I • 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 2004 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 2004 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ shall include the following insurance requirements. INSURANCE REQUIREMENTS. The following is required of the every Contractor and/or any potential subcontractors: JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3 a. Workers 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 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Municipalities and the County will be contracting with each of the following Municipalities for participation in this Program. Township of Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter Township of Waterford, the City of Auburn Hills, 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. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 g. spraying activities, the County shall not be required to purchase, receive, or be responsible for any unused insecticide from the Contractor. 3. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM. 8.The COUNTY will collect data to determine the effectiveness of the 2004 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 g. 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 tool to determine the percentage of foliar preservation. 10. The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 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 17 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. 18. 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. 19. 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 20 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. 22d 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 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. COUNTY INVOICES TO MUNICIPALITY 28. On or about April 30, 2004, 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 June 1, 2004, 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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 $60,000 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 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). JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 82. The MUNICIPALITY shall be solely and completely responsible for all other actions of any MUNICIPALITY AGENT(S). 33. The COUNTY shall be responsible for all actions of its AGENTS. DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35. 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 8. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYWIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 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 that, by their nature, survive expiration or termination of this AGREEMENT. 2004 PROGRAM COMPLETION 44, 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 - .51. 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 52. 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 53. 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 uncollectable, 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 54. 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 55. 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 56. 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 57. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 - .CONCLUSION 58. This AGREEMENT, consisting of a total of seventeen (17) pages, including the one page 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 BY: BY: L. BROOKS PA TTERSON, CountrExecutive MARI HARVEY-EDW6RDS, Major BY: BY: DATE: DATE: ,"1/ 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation IN WITNESS WHEREOF, Mad Harvey-Edwards, of the CITY OF AUBURN HILLS, hereby acknowledges that has been authorized by a resolution of the of, 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 terrrits and conditi n of this AGREEMENT on this 7 day ot , 2004. CITY OF AUBURN HILLS: a Michigan Constitutional and Municipal Corporation WITNESSED: r/eL LINDA F. SHANNON, Clerk JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Pa 16 Year 2004 Page 1 of 1 TOWNSHIP — Treatment Acreage Summary CITY OF AUBURN HILLS Priority Categories (Acres) _ Block # # of Homes # of Visitors 1 2 3 4 5 132 74 2 49 43 _ _ Total Total Total Total Total Total Total 181 117 Category 1 Category 2 & 3 Category 4 & 5 Residential-multiple Public & private recreational Public & private special use 2004 JOINT OPERATING AGREEMENT GYPSY MOTH PROGRAM ATTACHMENT "A" Page 1 of 1 --/ CITY OF AUBURN HILLS RESOLUTION At a regular meeting of the City Council of the City of Auburn Hills, Oakland County, Michigan, held io the Council Chambers at 1827 N. Squirrel Road, Auburn Hills MI 48326 at 6:30 p.m. on the le day of February, 2004 the following resolution was offered by Councilperson Knight and supported by Councilperson Pillsbury: 71. Recommendation on Participation in Oakland County Gypsy Moth Program - to approve the agreement between the City of Auburn Hills and Oakland County for the 2004 Oakland County Gypsy Moth Program and authorize the Mayor and City Clerk to execute the agreement on behalf of the City. To approve the agreement between the City of Auburn Hills and Oakland County for the 2004 Oakland County Gypsy Moth Program and authorize the Mayor and City Clerk to execute the agreement on behalf of the City. VOTE: Yes: Harvey-Edwards, Kittle, Knight, Luenberger, McDonald, Newkirk, Pillsbury No: None RESOLUTION NO. 04.16.054 RESOLUTION ADOPTED STATE OF MICHIGAN) COUNTY OF OAKLAND) I, the undersigned, duly qualified and appointed City Clerk of the City of Auburn Hills, Oakland County, Michigan do hereby certify that the foregoing is a true and qomplete copy of a resolution adopted at a regular meeting of the City Council held on the 16 t" day of February, 2004, the original of which is on file in my office. IN WITNESS WHEREOF, 1 have hereunto affixed my official signature on this 20th day of February, 2004. . , Linda F. Shannon, City Clerk City of Auburn Hills )SS )SS rn tn.!. CHARTER TOWNSHIP OF OAKLAND (-) JOINT OPERATING AGREEMENT JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM c. CO r'71) r- % This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMEN *s rnga an entered into between the CHARTER TOWNSHIP OF OAKLAND, a Michigan Constitution and Municipal Corporation whose address is 4393 Collins Road, Rochester, MI 48306-1670 (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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 "2004 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, JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 1 I 0 1 Wit 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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 2004 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 a 1 SPRAY COST/ACRE shall be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE APPLICATOR in connection with all 2004 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 2004 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ 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 2004 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Township of Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter Township of Waterford, the City of Auburn Hills, 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: 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." "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. (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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 g. 3. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM, 8.The COUNTY will collect data to determine the effectiveness of the 2004 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. 9. 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 tool to determine the percentage of foliar preservation. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 10. The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 SPRAY BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection. MUNICIPALITY SPRAY DAY(S) OBLIGATIONS 17 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. 18. 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. 19. 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 20 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 22d 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 AGENTS 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 • 28. On or about April 30, 2004, 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 June 1, 2004, or no later than 16 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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. 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). 33. The COUNTY shall be responsible for all actions of its AGENTS. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35. 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 38. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 I 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYWIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 that, by their nature, survive expiration or termination of this AGREEMENT. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 2004 PROGRAM COMPLETION 44. 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 51. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 # •• NO THIRD-PARTY BENEFIT 52. 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. SEVEFtABILITY 53. 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 uncollectable, 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 54. 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 55. 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 66. 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 57. 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 58. This AGREEMENT, consisting of a total of seventeen (17) pages, including the one page 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation L. BROCYKS PATTERSON, County Executive IN WITNESS WHEREOF, Susan L. Hoffman, of the CHARTER TOWNSHIP OF OAKLAND, hereby acknowledges that has been authorized by a resolution of the of, 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 Jan u , 2004. CHARTER TOWNSHIP OF OAKLAND: a Michigan Constitutional and Municipal Corporation SUSAN L. HOFFMAN; Supervisor BY: WITNESSED: BY: BY: Aocc)7). LISA M. PLATZ, Clerk JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 • s, Year 2004 Page 1 of 1 TOWNSHIP — Treatment Acreage Summary OAKLAND TOWNSHIP Priority Categories (Acres Block # # of Homes # of Visitors 1 2 3 4 5 1 13 50 2 24 30 3 56 35 , , , Total Total Total Total Total Total Total 93 115 Category 1 Category 2 & 3 Category 4 & 5 Residential-multiple Public & private recreational Public & private special use 2004 JOINT OPERATING AGREEMENT GYPSY MOTH PROGRAM ATTACHMENT "A" Page 1 of 1 Notary PubTi" Charter Township of Oakland 4393 Collins Road, Rochester, Michigan 48306-1670 Telephone: (248) 651-4440 Fax: (248) 651-7340 CHARTER TOWNSHIP OF OAKLAND BOARD OF TRUSTEES RESOLUTION TO PARTICIPATE IN A JOINT OPERATING AGREEMENT FOR THE 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM MOVED BY EDWARDS, SECONDED BY BOLTZ, to recommend participation in a Joint Operating Agreement for the 2004 Oakland County Gypsy Moth Program as presented by the Michigan State University Extension/Oakland County Gypsy Moth Suppression Program Coordinator Carol Lenchek. Ayes: Edwards, Boltz, Derian, Platz, Hoffman Nays: None Absent: Creps, Phillips Adopted this 27th day of January, 2004 Charter Township of Oakland , By: ,YI-A-°0t-)7 1.Phthr Lisa M. Platz Township Clerk Subscribed and Sworn to before me this a -ph day of 2004 o.eir-ele- My commission expires OS"- 1/ - CHARTER TOWNSHIP OF ORION JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM \c This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT') iiiaded entered into between the CHARTER TOWNSHIP OF ORION, a Michigan Constitutional an unicipg1 i-- 54:. Corporation whose address is 2525 Joslyn Road, Lake Orion, MI 48360 (hereafter the "MU PALIp(") and the COUNTY OF OAKLAND, a Michigan Constitutional and Municipal Corporation, whose) ddresi is 1200 North Telegraph Road, Pontiac, Michigan 48341 (hereafter the "COUNTY"). In this AG MEM", 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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 "2004 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, JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 1 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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 2004 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 COUNTY to the PESTICIDE APPLICATOR in connection with all 2004 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 2004 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ 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 2004 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Township of Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter Township of Waterford, the City of Auburn Hills, 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. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 g. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM. 8.The COUNTY will collect data to determine the effectiveness of the 2004 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. 9. 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 tool to determine the percentage of foliar preservation. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 16. The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 SPRAY BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection. MUNICIPALITY SPRAY DAY(S) OBLIGATIONS 17 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. 18. 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. 19. 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 20. 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 2c1 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 2e. On or about April 30, 2004, 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 June 1, 2004, 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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. 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). 33. The COUNTY shall be responsible for all actions of its AGENTS. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35. 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 38. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYWIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 that, by their nature, survive expiration or termination of this AGREEMENT. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 2004 PROGRAM COMPLETION 44. 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 51. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 WO THIRD-PARTY BENEFIT 52. 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 53. 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 uncollectable, 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 54. 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 55. 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 56. 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 57. 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 58. This AGREEMENT, consisting of a total of seventeen (17) pages, including the one page 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 fap GERALD A. ASUK, Supervisor BY: BROO County E cutive SON, BY: DATE: DATE: BY: 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation IN WITNESS WHEREOF, Gerald A. Dywasuk, of the CHARTER TOWNSHIP OF ORION, hereby acknowledges that has been authorized by a resolution of the of, 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 "4- day of ,2004. CHARTER TOWNSHIP OF ORION: a Michigan Constitutional and Municipal Corporation WITNESSED: J114 D. BASTIAN, rk JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 •1. Year 2004 Page 1 of 1 TOWNSHIP — Treatment Acreage Summary ORION TOWNSHIP Priority Categories (Acres Block # # of Homes 14 of Visitors 1 2 3 4 5 1 42 29 _ _ Total Total Total Total Total Total Total 42 29 Category 1 Category 2 & 3 Category 4 & 5 Residential-multiple Public & private recreational Public & private special use 2004 JOINT OPERATING AGREEMENT GYPSY MOTH PROGRAM ATTACHMENT "A" Page 1 of 1 CHARTER TOWNSHIP OF ORION BOARD OF TRUSTEES MINUTES, REGULAR MEETING, MONDAY, FEBRUARY 2,2004 8. PENDING BUSINESS E. 2004 Gypsy Moth Joint Operating Agreement. Moved by Gingell, seconded by Tomczak to authorize the 2004 Gypsy Moth Joint Operating Agreement with Oakland County, as presented, for spraying 29 acres in and around Sunset Hills Subdivision and directed the Supervisor and Clerk to sign the Agreement, on behalf of the Township. AYES: Gingell, Dywasuk, Wilsher, Tomczak, Marleau, Fetzer, Bastian. NAYS: None. ABSENT: None. Certification: I, Jill D. Bastian, duly elected Clerk of the Charter Township of Orion, do hereby certify that the foregoing is a true copy of a motion made by the Charter Township of Orion Board of Trustees at a regular meeting held on Monday, February 2, 2004, at the Orion Township Hall, 2525 Joslyn Rd., Lake Orion, MI. Bastian, Clerk [miter Township,of Orion Date: 6 5 I" 6 CHARTER TOWNSHIP OF OXFORD JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM ....,--, _3 --r..ry-I. ..., -.. ,,,,-....., - n r••rk ' -c, .•-••A t's 7.1, ' . -'' CI T.< , ''' '" ,--, '-,-) '-'-' CC) — -0 ---k ' \ --.. c-) 's it:. ..4. c- , rz, r rci 0 ir--.3 This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT") is made and entered into between the CHARTER TOWNSHIP OF OXFORD, a Michigan Constitutional and Municipal Corporation whose address is 18 West Burdick Street, P.O. Box 3, Oxford, MI 48371 (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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 '2004 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, JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 1 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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-WOE SPRAY COST/ACRE". h. "AVERAGE COUNTY-WIDE SPRAY COST/ACRE" shall be defined as average cost/acre under the 2004 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 SPRAY COST/ACRE shall be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE APPLICATOR in connection with all 2004 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 2004 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3 b. If you are a Fixed Base (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 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. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Township of Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter Township of Waterford, the City of Auburn Hills, 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: 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." "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. (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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM Page 5 g. 3. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM. 8.The COUNTY will collect data to determine the effectiveness of the 2004 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. 9. 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 tool to determine the percentage of foliar preservation. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 10.- The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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. DgfERMINATION OF MUNICIPALITY SPRAY BLOCKS TO BE TREATED 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 owners exclusions from the 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 SPRAY BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection. MUNICIPALITY SPRAY DAY(S) OBLIGATIONS 17 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. 18. 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. 19. 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 20 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 22d 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 AGENTS 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 • 28. On or about April 30, 2004, 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 June 1, 2004, 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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. 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). 33. The COUNTY shall be responsible for all actions of its AGENTS. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 • DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35. 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 38. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 • 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYWIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 that, by their nature, survive expiration or termination of this AGREEMENT. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 2004 PROGRAM COMPLETION 44. 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 51. 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, arid all persons acting by, through, under, or in concert with any of them. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 • NO-THIRD-PARTY BENEFIT 52. 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 53. 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 uncollectable, 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 54. 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 55. 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 56. 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 57. 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 58. This AGREEMENT, consisting of a total of seventeen (17) pages, including the one page 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 pricir 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 BY: BY: BROOKSERSON, County Executive WILLIAM DUNN, Supervisor DATE: DATE: --Z/Z -9/0 • 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation IN WITNESS WHEREOF, William Dunn, of the CHARTER TOWNSHIP OF OXFORD, hereby acknowledges that has been authorized by a resolution of the of, 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 thip AGREEMENT on this /it kt day of , 2004. CHARTER TOWNSHIP OF OXFORD: a Michigan Constitutional and Municipal Corporation VVITNESSED: BY: BY _AARA J. SANDERSO 5 N Clerk JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 Year 2004 Page 1 of 1 TOWNSHIP — Treatment Acreage Summary OXFORD TOWNSHIP Priority Categories (Acres) _ lock # # of Homes # of Visitors 1 , 2 3 4 5 1 17 40 , 2 2 40 , 3 64 58 _ , , , _ Total Total k Total Total Total Total Total 83 138 Category 1 Category 2 & 3 Category 4 & 5 Residential-multiple Public & private recreational Public & private special use 2004 JOINT OPERATING AGREEMENT GYPSY MOTH PROGRAM ATTACHMENT "A" Page 1 of 1 Michigan Department of Agriculture (MIDA) I Pesticide & Plant Pest Management Division P.O. Box 30017, Lansing, MI 43909 (517) 373-975D FAX (517) 335-4540 EGG MASS SURVEY DATA SHEET BLOCK ELIGIBILITY LOCATION County Town Line Range Line Section Township/Munidpality Priority Category ' Block 4 * i we_v4t sA/ /e, •6 • a-5-- tvitf ,e__6 1 TREES (please /) SPECIES PRESENT: @Irak 0 Aspen 0 Birch 0 Beech 0 WP 0 Willow Other % of Host Canopy EGG MASSES (please /) Sl7-E: 0Dirne 0 Nickel (see back) e(Narter AGE RATIO: Er 1,.<ore New 0 More Old 0 Equal 1 BLOCK QUALIFICATIONS # of NOM= (residential) *of Visitors (recreational/ special use) Block Size (acres) (Category 1 & 5) (Category 2,3,4,5) , PLOT # EGG MASSES ADDRESS/ PLOT LOCATION / /----‹ , c:92,0 ,-56----1/eA/ et9A.e.S . - c‘..a_,4e -7"2".6-e-- /4--,e. 9 A/7 c›? -7 153 6Et/--Al PA&._.< .'6 0 r ,g,e /--e-- fr-,a, 4/7- Of x /e.., 7 9)S0 ,_--tie-/il /2,4"es -a.; ,a4A , — ,a e..,— 7 -e. - w; a ,L-• , ......51E.1/ .0A7A---c oilf - • • , . - Total 4 of new egg masses in qualified plots # qualifying plots X 40 Average density per acre for block COMMENTS: ('i.e. reason to treat I counts are marginal, blow in Potential, etc.) BLOCK MAP North nnn•n•n••••.. (Use additional sheet(*) if necessary) inOctaleggrneasurvirm.oct Rev 2124100 Prepared By: Date / / SIZE: 01Dime 0 Nickel El<iarter (see back) AGE RATIO: 3-<ore New 0 More Old 0 Equal Michigan Department of Agriculture (MEM)/ Pesticide & Plant Pest Management Division P.O. Box 30017, Lansing, MI 48909 (517)373-9751- FAX (517) 335-4540 EGG MASS SURVEY DATA SHEET BLOCK ELIGIBILITY LOCATION , r County Town Line Range Line Section Township/Munidpality Priority Category Block # 02 0/9/e69 /1.Z2 6-/(/ /a 6. /--g aei-7-e're-Je3 / TREES (please ) SPECIES PRESENT: Er-O...ak 0 Aspen 0 Birch 0 Beech 0 WP 0 Willow Other 19,6 efic-w-el % of Host Canopy EGG MASSES (please BLOCK QUALIFICATIONS * of Homes (residential) 1 $ of Visitors (recreational( special use) Block Size (acres) (Category 1 & 5) (Category 2,3,4,5) PLOT * EGG MASSES - ADDRESS/ PLOT LOCATION / JO,c-11.12 fs" ft z.1 - 6,/f/ tra/r/A///1.4" ,5-,4 -...6 —"="49:3,4 _ ..3 e) ,ek .A.... we,teA4' ,49SeLfo.c_r_S cl_ „v,..--,---_-,velf.- _ ,e7/1.1 e/4."-&- r 1 2 ....-6, c- e -.62A2N - Nal .0 F ,5/4 / 9 01.- • . , . . - _ Total # of new egg masses in qualified plots ÷ *qualifying plats X 40 = Average density per acre for block COMMENTS: (i.e. reason to treat if counts are marginal, blow in Potential, etc.) BLOCK MAP North (Use additional sti..t4s Ifnecessem s:CcLOleggrvutssurtrfnneoct Rev lit24/00 Prepared By: Date _F / Michigan Department of Agriculture (MCA) / Pesticide & Plant Pest Management Division P.O. Box 30017, Lansing, MI 40909 (517) 373-9751- FAX (517) 335-4540 EGG MASS SURVEY DATA SHEET BLOCK ELIGIBILITY LOCATION County To Line Range Line Section Township/Municipality Priority Category Block # r 4WC1g111-6 -CAW Mg • —.._47. O,e •Ce9,ed6 __I TREES (please I ) SPECIES PRESENT: 0 Aspen ca---sr; 0 Beech 0 0 Wilicriv Other % of Host Canopy EGG MASSES (please /) I SIZE: Chime El Nickel Cif-Ct---rarter (see back) BLOCK QUALIFICATIONS AGE RATIO: CII"‘e New 0 More Oki 0 Equal * of Homes (residential) * of Visitors (recreational/ special use) Block Size (acres) (Category 1 & 5) (Category 2,3,4,5) PLOT # EGG MASSES ' ADDRESS/ PLOT LOCATION / _-_4 . di,a/V ril/Z--ntt) ,27. 6. c° 34/bW-6,44-7 c>1 3703 OP.,/i/ &61-4/ - 7.6.- 17Jr./ _co_4:Aze ify,e. foul - ntiv.z)x_. /.9.9.5.s.s o,./ 7.56---,-- ,,,a /2., cp.e..7‘... . cted.JArro.- 1/4•F-- T../ ÷ 10 3 -7..-- fl,7 4re" &ili&L .0,-- ......47-e- Le. -7--ir --..›7 ,, A., A ,dei ielf: 7-- 64,, ,•64°(f-A/4-2 gj .._5.._ 366.2 c:s--/A7-c46ie-Z._',60eivr-a/ Total # of new egg masses in qualified plots *quafifying plots X 40 Average density per acre for block North COMMENTS: (Le. reason to treat N counts are marginal, blow in • Potential, etc.) BLOCK MAP (Use acklItIorui1 sheet(s) If necssaary) s:Octlieggmassurvfmoct flay 1124100 Prepared By: Date 71 CHARTER TOWNSHIP OF OXFORD COUNTY OF OAKLAND STATE OF MICHIGAN RESOLUTION 2004 GYPSY MOTH SUPPRESSION PROGRAM JOINT OPERATING AGREEMENT 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 County-wide treatment program; and WHEREAS, the treatment program offers the expertise and experience of the County in suppressing the gypsy moth infestation; and WHEREAS, the County provides local units an opportunity to join this County-wide program and realize economies of scale and cost savings, that local units could not achieve independently; and WHEREAS, the 2004 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 biological selected insecticide by an MDA qualified and approved agricultural pesticide spray contractor in an attempt to minimize municipal tree damage; and WHEREAS, the Municipality has submitted acreage for the 2004 program; and WHEREAS, the attached 2004 Gypsy Moth Suppression Program Joint Operating Agreement is submitted for Board action. NOW THEREFORE BE IT RESOLVED that this Municipality hereby approved entering into the attached JOINT OPERATING AGREEMENT - 2004 OAKLAND COUNTY GYPSY MOTH SUPPRESSION PROGRAM. MOVED: Clerk Sanderson SECONDED: Trustee Clancy AYES: Clancy Kniffen. Dywasuk. Dunn, Ferrari, Sanderson Clara J. Sanders Township Clerk CMC 72 NAYS: None ABSENT: Fitchena Adopted at a regular meeting of the Charter Township of Oxford Board of Trustees held on the 1 l' day of February 2004. Clara J. Sanderscin, CMC Township Clerk STATE OF MICHIGAN )SS COUNTY OF OAKLAND I, Clara J. Sanderson, CMC, duly elected Clerk of the Charter Township of Oxford, do hereby certify that the foregoing is a complete and true copy of a Resolution adopted by the Charter Township of Oxford at a meeting of the Board of Trustees held on the I l th day of February 2004. CITY OF ROCHESTER HILLS JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM -er) . f-T1:20 This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT") 4Elt entered into between the CITY OF ROCHESTER HILLS, a Michigan Constitutional and M Corporation whose address is 1000 Rochester Hills Drive, Rochester Hills, MI 48309-3033 "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan Constitutional and Municip Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan 48341 (hereal "COUNTY"). In this AGREEMENT, the COUNTY and/or the MUNICIPALITY may also be ref "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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 "2004 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 t- rn aaeaed ,*1 ipal eafteothe - A the -0 d to 43,..? a r ;--r1 .%) C. 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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 2004 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 2004 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 2004 PROGRAM. The total number of acres within the County of Oakland treated by AERIAL SPRAYING by the PESTICIDE APPLICATOR shall be JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ 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. b. If you are a Fixed Base Operator (F.B.0.), you must provide the following coverage(s): JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 3 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 coverade(s): Your aircraft liability coverage endorsed to cover premises liability in the minimum amount of $2,500,000.00 combined single limit per occurrence. cl. 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 Insured 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 Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Township of Waterford, the City of Auburn Hills, 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. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 g. 3. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM. 8.The COUNTY will collect data to determine the effectiveness of the 2004 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. 9. 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 tool to determine the percentage of foliar preservation. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 10. The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 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 17 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. completed. 19. 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 20 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 MUNICIPALITY 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 ' 22d 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 28, On or about April 30, 2004, 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 June 1, 2004, 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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 arid, 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. 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). 33. The COUNTY shall be responsible for all actions of its AGENTS. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 10 DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35, 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 38. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYWIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 that, by their nature, survive expiration or termination of this AGREEMENT. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 2004 PROGRAM COMPLETION 44. 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 51. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 NO THIRD-PARTY BENEFIT 52. 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 53. 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 uncollectable, 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 54. 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 55. 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 56. 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 57. 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 58. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 15 rj'1=6 L. BROOKS PATTERSON, BY: County Executive WITNESSED: BY: r PAT SOMERVILLE, Mayor BY: BEVERLY AIJASINSKI Clerk DATE: DATE: e 177 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constituti9nal and Municipal Corporation IN WITNESS WHEREOF, Patricia Somerville, of the CITY OF ROCHESTER HILLS, hereby acknowledges that has been authorized by a resolution of the of, 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 , 2004. CITY OF ROCHESTER HILLS: a Michigan Constitutional and Municipal Corporation JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 ROCHESTER HILLS CITY COUNCIL RESOLUTION At a Regular Rochester Hills City Council Meeting held at 1000 Rochester Hills Drive, Rochester Hills, Oakland County, Michigan, on Wednesday, January 21, 2004. Present: President John Dalton; Members Bryan Barnett, Jim Duistermars, Melinda Hill, Barbara Holder, Linda Raschke Absent: Member Gerald Robbins QUORUM PRESENT Resolution A0769-2004—R0514 MOTION by Hill, seconded by Raschke, Resolved that the Rochester Hills City Council authorizes the Mayor and City Clerk to execute the Joint Operating Agreement to the Oakland County Gypsy Moth Coordinator, indicating the intention of the City to participate in the Oakland County Gypsy Moth Suppression Program in 2004. Resolved that the Rochester Hills City Council authorizes an amount not-to-exceed $88,500 (1,770 acres x $50) to Oakland County Gypsy Moth Suppression Program for gypsy moth management services for 2004. Ayes: Dalton, Barnett, Duistermars, Hill, Holder, Raschke Nays: None Absent: Robbins MOTION CARRIED Adopted at a Regular Rochester Hills City Council Meeting held on January 21, 2004. I, Beverly A. Jasinski, Rochester Hills City Clerk, do hereby certify that the foregoing is a complete and true copy of Resolution A0769-2004—R0514, the original of which is on file in my office, adopted by the Rochester Hills City Council at a Regular Rochester Hills City Council Meeting held thereof on Wednesday, January 21, 2004. ar6 st ,,Z Beverl A. J ' ski, City Clerk CitV of Rochester Hills p. 4 CHARTER TOWNSHIP OF WATERFORD JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM rrl This 2004 GYPSY MOTH JOINT OPERATING AGREEMENT (hereafter "AGREEMENT') it: ade entered into between the CHARTER TOWNSHIP OF WATERFORD, a Michigan Constituti I and :473 Municipal Corporation whose address is 6200 Civic Center Drive, Waterford, MI 48329-377 1 1 ereat(er the "MUNICIPALITY") and the COUNTY OF OAKLAND, a Michigan Constitutional and Mull' al r9 Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan 48341 (hereáftr thec ) 3.71 c, "COUNTY"). In this AGREEMENT, the COUNTY and/or the MUNICIPALITY may also be reA red tEis 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 Countywide program and realize economies of scale, and cost savings, that they could not achieve independently. This JOINT OPERATING AGREEMENT is entitled the 2004 Oakland County Gypsy Moth Suppression Program (hereafter the "2004 PROGRAM"). The 2004 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 non-possessive, 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 "2004 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, JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 1 sm44 t -.n cr, 0 --P" ..2: 2Zrr c") rn 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 2004 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 2004 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 2004 PROGRAM. The MUNICIPALITY SPRAY BLOCKS are specifically identified and summarized 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 2004 PROGRAM for all acres treated by AERIAL SPRAYING in all participating LOCAL UNITS, including the MUNICIPALITY. The AVERAGE COUNTY-WIDE JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 2 SPRAY COST/ACRE shall be determined by dividing the total dollar amount paid by the COUNTY to the PESTICIDE APPLICATOR in connection with all 2004 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 2004 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 COUNTYWIDE SPRAY COSTS/ACRE will be less than $50.00 per acre. However, until the total 2004 PROGRAM acreage to be sprayed is known, the AVERAGE COUNTYWIDE SPRAY COSTS/ACRE can only be estimated. If this cost/acre should exceed $50.00 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, 2004 and June 10, 2004, 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 summarized on Attachment "A" except as expressly provided for in this AGREEMENT. The MUNICIPALITY acknowledges that the MUNICIPALITY SPRAY BLOCKS summarized in Attachment "A", when combined with those of all other LOCAL UNITS participating in the 2004 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 2004 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 2004 PROGRAM. The RFQ 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 2004 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) $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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 4 Township of Addison, Charter Township of Oakland, Charter Township of Orion, Charter Township of Oxford, Charter Township of Waterford, the City of Auburn Hills, 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. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 5 g. 3. If, upon reviewing bids submitted, the above-referenced minimum insurance requirements raise the cost of treatment substantially, the County may, in its sole discretion, lower the minimum insurance requirements for the selected contractor. The County will notify the Municipality if insurance specifications in Paragraph 2 are lowered. If the Municipality determines, in its sole discretion, that the lowered insurance requirements are unacceptable, the Municipality may cancel its participation in the program by sending written notice to the County within ten days of receiving the amended insurance specifications. 4. 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. 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. 6. The COUNTY will appoint a COUNTY COORDINATOR to coordinate the administration of the 2004 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 2004 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 2004 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 2004 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. 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. 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 2004 PROGRAM. 8.The COUNTY will collect data to determine the effectiveness of the 2004 PROGRAM and begin plans for future treatment programs and submit reports on Gypsy Moth infestation to the MUNICIPALITY for future treatment planning and programs. 9. 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 tool to determine the percentage of foliar preservation. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 6 10. The COUNTY shall create and maintain a year-to-year database on the Gypsy Moth infestation, including, when possible, information on independent and private Gypsy Moth suppression efforts to capture trends for future program planning. 11 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 12 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 summarized in Attachment "A". 13 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. 14 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. 15 The MUNICIPALITY agrees to maintain a written log of all calls and/or objections from any MUNICIPALITY resident and/or property owner concerning the 2004 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 2004 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 2004 PROGRAM, the MUNICIPALITY must update maps to reflect property exclusion and adjust MUNICIPALITY SPRAY BLOCKS based upon such objections. MUNICIPALITY SPRAY BLOCK MAPS 16 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 7 SPRAY BLOCK. The MUNICIPALITY shall always maintain a current map of the planned MUNICIPALITY SPRAY BLOCKS for public inspection. MUNICIPALITY SPRAY DAY(S) OBLIGATIONS 17 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. 18. 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. 19. 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 20 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 that 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 21d The MUNICIPALITY shall designate a MUNICIPALITY AGENT as the "MUNICIPALITY LIAISON". The MUNICIPALITY LIAISON shall supervise all MUNICIPALITY AGENTS participating in the 2004 PROGRAM and shall be available to assist, as necessary, the COUNTY COORDINATOR in the administration of the 2004 PROGRAM within the MUNICIPALITY. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 8 22d 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. 23d The MUNICIPALITY shall be solely responsible for seeing that all MUNICIPALITY AGENTS participating in the 2004 PROGRAM fully cooperate with the COUNTY COORDINATOR in completing all 2004 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. 24 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 AGENTS 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 25d 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: 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. 26 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 2004 PROGRAM to defray or offset any MUNICIPALITY SPRAY COSTS in connection with the MUNICIPALITY'S participation in the 2004 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. 27The 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 9 28. On or about April 30, 2004, 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 June 1, 2004, 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 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 2004 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. 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. Liabilities for damages because of bodily injury, occupational sickness or disease, or death of his employees. 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. 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). 33. The COUNTY shall be responsible for all actions of its AGENTS. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM- Page 10 DISCLAIMER OF ANY COUNTY WARRANTY 34. The MUNICIPALITY acknowledges that its decision to participate in the 2004 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. 35. 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 2004 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 2004 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 2004 PROGRAM outcome. The MUNICIPALITY agrees that the major operational components of the 2004 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 36. 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. 37. 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 38. 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, 2004, by delivering a written notice of cancellation of this AGREEMENT to the other PARTY. 39. 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 11 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 2004 PROGRAM. 40. If, after the PESTICIDE APPLICATOR contract is finalized and the total 2004 PROGRAM acreage for AERIAL SPRAYING is known, should it become apparent that the AVERAGE COUNTY- WIDE SPRAY COSTS/ACRE will exceed $50.00 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 COUNTYVVIDE SPRAY COSTS/ACRE will exceed $50.00 and shall have no further obligation to the MUNICIPALITY under this AGREEMENT. 2004 PROGRAM CHANGES 41. The MUNICIPALITY agrees that after March 1, 2004, 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 summarized 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 summarized on Attachment "A" without the written approval of the COUNTY. FORCE MAJEURE 42. 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 43. The MUNICIPALITY agrees that any and all MUNICIPALITY 2004 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 that, by their nature, survive expiration or termination of this AGREEMENT. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 12 ' 2004 PROGRAM COMPLETION 44, 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 45. 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. 46. 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 47. This AGREEMENT shall not become effective prior to the approval by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 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. 48. Except as expressly provided herein, this AGREEMENT may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and the governing 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 49. 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. 50. 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 51. 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. JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 13 NO THIRD-PARTY BENEFIT 52. 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 53. 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 uncollectable, 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 54. 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 55. 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 56. 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 57. 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 58. This AGREEMENT, consisting of a total of seventeen (17) pages, including the one page 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 JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 14 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. 59. 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 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM Page 15 BY: CARL W. SOLDEN, Supervisor L. BROOKS/PATTERSON, County Exe•Qive VVITNESSED: 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 , 2004. FOR THE COUNTY OF OAKLAND: a Michigan Constitutional and Municipal Corporation IN WITNESS WHEREOF, Carl W. Solden, of the CHARTER TOWNSHIP OF WATERFORD, hereby acknowledges that has been authorized by a resolution of the of, 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 , 2004. CHARTER TOWNSHIP OF WATERFORD: a Michigan Constitutional and Municipal Corporation BY: V a/jeffez,,,, Clerk DATE: DATE: JOINT OPERATING AGREEMENT 2004 OAKLAND COUNTY GYPSY MOTH PROGRAM - Page 16 Year 2004 Page 1 of 1 TOWNSHIP — Treatment Acreage Summary WATERFORD TOWNSHIP Priority Categories (Acres) Block # # of Homes # of Visitors 1 2 3 4 5 1 161 40 2 53 30 3 9 30 4 150 60 5 69 30 Total Total Total Total Total Total Total 442 190 Category 1 Residential-multiple Category 2 & 3 Public & private recreational Category 4 & 5 Public & private special use 2004 JOINT OPERATING AGREEMENT GYPSY MOTH PROGRAM ATTACHMENT "A" Page 1 of 1 Gypsy Moth Survey Fall 2003 Lr r C:;-Vity r7i :a`escr LV Taw 4 of new egg masse n quarriecl pkg., ) squashing 00,4 X 40 Average density per ace for blocfc 5- BLOCK MAP North A.3rict,,iture 040,41: ;:413'i P4st V,aragener.t 7:1 S. F,rr..orc)o,::, 3, 7riversa C:ty:M14-,:l!.3, (7.11i "r`,AX EGG MASS SURVEY DATA SET BLOCK ELI OCATICN E ILITY -,t- TREES ea 1' SPC(c5 PPcSENT• Cak 0 Asaer, 0 Birctt 0 Beee., 0 'No 0 Willow c2t1s.er % of Hos: Carlop! EC3G MASSES alza. 0Cirr,e. Cuarter I 'See Oa-Jr) BLOCK QUALIFICATIONS AGE R.AT1C: X Mo;e New 0 More 122cl 0Eol:al of i-tomes (resgien ai) of V,sttors veveattorlaii spec;ai use) iock "Sze ,ar:fe ) (Catesory 1 & $) (7..aZegory Z.3,4,5) IN PLOT r, EGG MASSES ADDRESS/ PLOT LOCATION 1 , I' .., r. ,i, , c_-_ A.-- V V, (7- (LI( IMIIHWEIMMI WO 11111110111.11111 ' - 1 AI , 02.. MEM= t a . li AM 4- - , < i rii....),--71- tc COMMENTS: (i.e. reason Is treat W Curt s are marginal, ttgai Lt Pot Oaf, etc) t C L.CA)K-C- -TLY-AzN) 1(9 ir rr,1 BLOCK 7:1,1C:BILITY OCATION Mirr,n %yen Lr ury !Lb !..7.7Tcr.....1 ;;;,Vegcrif ) I . ,. i Nickel I I (see :ack) Cusner AGE Mose Old Tow At of new egg xnassee in cuatdied pots ) (111044r9 Plots t-) X 40 * Average density pm' ems for Nock COMMENTS: (i.e. reason to treat if counts are marginal, bow fl Poterit. e:: ) 6-3 PAR cc-Lc . 3 North BLOCK MAP :eparz7e-::f f;.,.ir.2-111'eitc.,-.1,e; 7.'-'*a "L'1,st 4,•arz-jelmeir , :„, S. EGG MASS SURVEY DATA SHEET TREES SPECIES Pq=SitN'T: )(Oak 0 0 sircr, 0 3e 0 W 0 Willow Other. I 't'D of rlost CancOy EGG v:ASSES n•••••nn•••n BLOCK QUALIFICATIONS $ of picnIes ' reslceritlal) $ of Vsitors (recteatonaU speclai use) I Elock Sze (acres) (Catego 1 & Si (Category 2.3.4,5) I 30 I 1 I PLOT I 'EGG i SES ACORZSI PLOT LOAT1ON ti (4a. so, s gem .1 e , 1 BLOCK Et.iS5', CCATION ! , TREES EGG MASSES(....;!ei3e 1 TZF.,: DE: i me nicxei Curter AGE PATIC7 Edual Mcre New Mort Old COMMENTS: (Le, reason to treat if ecunts ars mar)nal. tiow Poten1, N4(-t...+05(71- t?- C,U-S t- Sc44c)c---,L. North BLOCK MAP micican Cprr f.4“;”*ic4iture PW:aide P3St YJnac,-,er,*,eit 7:1 S. E:11 ,,,,,:%t EGG MASS SURVEY DATA SHE .4-7 SPECIES PPE5EN7: Aspen J Eiron Sencn WP 0 VPfiew Otrer % of Host Canopy BLOCK CUALIF;CATIONS 0 cf Hcrles ,„res4enta;) 4 of Visitors Verjeatdflali peca Boci &L.* (3crts) i:Catt-31:,.ry 1 4 5.; (Category 2,3,4,5) Jo 1 ....--1 PLOT I EGG S3E3 0 & L T LOCATION I - : '-'' - J - r 1 -5- , 1.-..) I -4, Total I of new e;g masSes in qualified plots ) * quaifying plots X 40 a Average density per acre for block C)--7:>:- -1— DOirre 0 Nickel 1 North BLOCK MAP Mizhigari parf'rnent f AGri'.:41;Lire iMCA!Pesticio'e Pf.a7; M3na5ernent 71' EGG MASS SURVEY DATA SH:4 '":T 'BLOCK EL:GSLITY • ()CATION TREES 1-4*-,e ) I r • I SPcCt=3 7-:;cSENT: Ci(Oak mow, 0 5w 0 9etc:1 0 WP 0 Willow Other Pa /CC7)14/( I % e HOIS Calopy EGG MASSE SIZE: (Set ::aclei Ouartsg AGE PAM: Mcre New More Old BLOCK QUALIFICATIONS * of Visitors (recealionaV specal use) Biocx. Ize ores) (Category I & 5) (Category Z3,4,5) PLOT E3Q 1 $ 0 $: PLOT LOCATION 100 2-7 1 (CI (7 tiVer / 41/ 7t) 4.4 _. Al / ..) 1 in A LL Jg,L4 id " Adt L-1/24 r7T; rt-i* C P ir_ , C., k f Iota/ *If new egg masses in du I Wafting Piatl X 40 X Average density per ace for block ) gO COMMENTS: (i.e. resson.to treat if counts are marginal4 alow in Potential, le1/4J(Lk.) St..) OZ- I - ,it K37- . . T7Nn r \ ( AGE t More New 0 More E.4uar COMMENTS: (i.e. reason to treat If mums are marrlinal, bbow in Prerttaf.. et.) BLOCK MAP North I Lc161.4 ‘.1` ALA N71— •• Mg1 7.:tez.ar-.11ert 5.•':::::,:ture PIStiCi4d P',3n_t Pest MaraTenitr,".: EGG MASS SU7-1VEY DATA SHEET Lc,,c,K •-n IC:BILITY OCATION • • TREES please T ) • I SPECIES PRESENT: ;Sr Oak 0 Aspen 0 Sirct 0 Bee.c:!: 0 'IV? 0 Wow Cther SP I S of Host Caro;), •••••••••• EGG MASSES /) SIZE: Doirme ,ArQuarter (see bacic) BLOCK QUALIFICATIONS or s-tc.Tes (resglenta) 4 of V!sitors (recreatiortaV sp.?.c.:ai '.:3 ) Et:ock Sao 1 acres (Catt;ory 1 '4 5) (Category 2.3,4,5) Jo PLOT 4 EGG MASS ,tDDRESSI PLOT LOCATION S0 P AfT1C4:: , f -r 6A K— 1' Przy vai -7/ ic) — 6 ,-.Niq)( cti‘ Dx14 1 C E 'll•JAV S AI 7 3 f/1g.k. it-r- lyz0A.A.)1AJ&Dok:- —0- 3. f/A4-6Rvt 3 -77zu,v1c. c 0 i K... - ik s/Ai k LC' CA L - PCN, ( --r-pc4.- Total ti of new egg masses in qtaig)ed PA3 6`D ) 0 atianYing Ofcts , X 40* Average density per acre for block g 1-2 0 4 BOARD OF TRUSTEES Carl W. Solden, Supervisor Betty Fortino, Clerk Dee A. Minton, Treasurer Paul E. Deni, Trustee Todd Fox, Trustee David J. Maloney, Trustee Bette O'Shea, Trustee Betty Fortino Clerk WATERFORD A CHARTER TOWNSHIP 5200 Civic Center Drive Waterford, Michigan 48329-3773 Telephone: 248-674-6266 • Fax: 248-674-5455 www.twp.waterford.mi.us February 3, 2004 Carol Lenchek, Coordinator Oakland County Gypsy Moth Suppression Program 1200 N. Telegraph, north office bldg. Pontiac, MI 48341 Dear Carol: At the regular meeting of the Waterford Township Board, held January 26, 2004, the following resolution was adopted: Moved by Deni, Supported by Maloney, RESOLVED, to approve the 2004 Gypsy Moth Joint Operating Agreement with Oakland County. Motion carried unanimously. STATE OF MICHIGAN) )SS. COUNTY OF OAKLAND) I. THE UNDERSIGNED, the duly elected and qualified Clerk of the Charter Township of Waterford, do hereby certify that the above resolution, approved at the January 26, 2004 regular meeting of the Waterford Township Board to approve the 2004 Gypsy Moth Suppression Agreement with Oakland County, is a true resolution. IN WITNESS WHEREOF, I hereto affix my official signature this 3rd day of February, 2004. BETTY FORTINO WATERFORD TOWNSHIP CLERK FISCAL NOTE (MISC. 104118) May 6, 2004 BY: FINANCE COMMITTEE, CHUCK MOSS, CHAIRPERSON IN RE: DEPARTMENT OF PUBLIC SERVICES / MBU EXTENSION - 2004 GYPSY MOTH SUPRESSION PROGRAM COMMUNITY SPRAY CONTRACTS TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS Chairperson, Ladies and Gentlemen: Pursuant to Rule XII-C of this Board, the Finance Committee has reviewed the above referenced resolution and finds: 1. MSU Extension has been requested by several local government units to assist coordinating a large-scale treatment program to help suppress the gypsy moth infestation in Oakland County. 2. The Cities of Auburn Hills and Rochester Hills, and the Townships of Addison, Oakland, Orion, Oxford, and Waterford have submitted acreage for the 2004 Gypsy Moth Suppression Program offered by Oakland County MSU Extension. 3. The final bid price for the aerial spray is $42.50 per acre for a total cost of $104,422 to be reimbursed by the local units. 4. The contracts have been reviewed by Corporate Counsel and will be signed upon the approval of the Board by Commissioners. 5. The County is expected to incur $13,409 in administrative and support costs, which are included in the FY 2004 MSU Extension Budget. These expenses include the Environmental Program Coordinator salary, postage, and printing. This program does not allow for the recovery of those costs. 6. The following budget amendment is recommended for the FY 2004 Budget: Public Services/MSU Extension (101) Revenues 17-502100-50121-0879 Reimb Municipal Aerial Spray $104,422 Expenditures 17-502200-50121-3348 Professional Services $104,422 Total $ -0- FINANCE COMMITTEE FINANCE COMMITTEE Motion carried unanimously on a roll call vote with Webster absent FY 2004 G. William Caddell, County Clerk Resolution #04118 May 6, 2004 Moved by Crawford supported by Wilson the resolution be adopted. AYES: Knollenberg, KowaII, Law, Long, McMillin, Middleton, Moffitt, Moss, Palmer, Patterson, Potter, Rogers, Scott, Suarez, Webster, Wilson, Zack, Bullard, Coleman, Coulter, Crawford, Douglas, Gregory, Hatchett, Jamian. (25) NAYS: None. (0) A sufficient majority having voted therefore, 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 May 6, 2004 with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of thp County of Oakland at Pontiac, Michigan this 6th day of May, 2004.