Loading...
HomeMy WebLinkAboutResolutions - 2007.08.16 - 28361MISCELLANEOUS RESOLUTION # 07183 August 16, 2007 BY: GENERAL GOVERNMENT COMMITTEE, Christine A. Long, Chairperson IN RE: PARKS AND RECREATION — SUPPORT FOR ENTRANCE INTO THE USE AGREEMENT WITH THE ROAD COMMISSION FOR OAKLAND COUNTY REGARDING THE LYON OAKS WETLAND MITIGATION PROJECT TO: OAKLAND COUNTY BOARD OF COMMISSIONERS Chairperson, Ladies and Gentlemen: WHEREAS, Oakland County Corporation Counsel has drafted a use agreement with the counselors for the Road Commission for Oakland County regarding the Lyon Oaks Wetland Mitigation Project; and WHEREAS, the Oakland County Parks and Recreation Commission has reviewed the proposed agreement and has resolved to support the County of Oakland's entrance into said agreement; and WHEREAS, the Road Commission for Oakland County has reviewed the proposed agreement and has resolved to authorize its Managing Director to execute the said agreement on behalf of the Board; and WHEREAS, the proposed use agreement stipulates the funding for the proposed project be provided by the Road Commission for Oakland County; and WHEREAS, the purpose of the proposed project is to provide improved access to recreational and educational opportunities in restored natural areas for all residents of Oakland County; and WHEREAS, the proposed project meets the goals and objectives of the 2007 Oakland County Parks and Recreation Master Plan. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners supports the entrance into the Land Use Agreement between the County of Oakland and the Road Commission for Oakland County regarding the Lyon Oaks Wetland Mitigation Project. Chairperson, on behalf of the General Government Committee, I move the adoption of the foregoing resolution. GENERAL GOVERNMENT COMMITTEE GENERAL GOVERNMENT COMMITTEE VOTE: Motion carried unanimously on a roll call vote. DRAFT 6/1/2007 (NTS - revision 6/5/07) LAND USE AGREEMENT between COUNTY OF OAKLAND and ROAD COMMISSION FOR OAKLAND COUNTY regarding LYON OAKS WETLAND MITIGATION PROJECT Page 1 of 7 THIS AGREEMENT, dated as of the day of 2007, between the Road Commission for Oakland County, a Michigan Statutory public body corporate, with administrative offices at 31001 Lahser Road, Beverly Hills, MI 48025, (hereinafter "RCOC") and the County of Oakland, with offices at 1200 N. Telegraph Road, County Service Center Bldg. # 12 East, Pontiac, MI 48341 (hereinafter "County") (collectively referred to as "the Parties"), provides as follows: WHEREAS, the County owns property commonly referred to as the Lyon Oaks Natural Area ("the Site"), located within Lyon Oaks County Park. WHEREAS, the County desires to create a Wetlands and Natural Area Exhibit within Lyon Oaks County Park for the education of the public; and WHEREAS, the RCOC from time to time constructs roads through wetland areas, and accordingly, is required to mitigate the wetlands taken in accordance with state and federal wetlands mitigation standards; and WHEREAS, the RCOC desires additional wetland mitigation credits; and WHEREAS, the County, on behalf of the RCOC, is willing to construct a wetland at the Site within Section 1, Lyon Township and to enter into a Conservation Easement with the Michigan Department of Environmental Quality ("MDEQ") in an attempt to assist the RCOC in receiving mitigation credits for the benefit of the RCOC; and WHEREAS, the County proposes to engage a contractor to perform the work provided herein, which involves approximately 20 total acres of natural area to be used by the Lyon Oaks Nature Center, including the creation of 13 acres of wetland (the "Wetland") within the Site, (the "Project"); and WHEREAS, in order to obtain such mitigation credits, the RCOC proposes to finance the entire cost of the Project, as set forth herein. NOW, THEREFORE, in consideration of the mutual benefits set forth herein, it is agreed between the Parties hereto: Page 2 of 7 I. COUNTY RIGHTS AND RESPONSIBILITIES 1) The County agrees to construct 20 acres of natural area to be used by the Lyon Oaks Nature Center, including 13 acres of wetland mitigation within Lyon Oaks County Park as described on mutually-agreed upon plans prepared by the County and which are attached to this agreement as Attachment "A", which is hereby incorporated into and made a part of this agreement. 2) The County agrees to secure the necessary permits and approvals from the agencies having jurisdiction. The RCOC shall be listed as the applicant on the Michigan Department of Environmental Quality (MDEQ) permit for wetland creation and the RCOC shall comply with all the stated requirements as appropriate, with cooperation from the County. 3) The County shall retain, with RCOC consent, a contractor to perform the work provided for herein. RCOC consent shall not be unreasonably withheld. 4) The County will not be responsible for any of the costs associated with this project unless otherwise approved by, and within the budget of, the Parks and Recreation Commission. 5) The County will comply with MDEQ regulations in order to enable the RCOC to obtain credits for the creation of the Wetland on the Site. It is anticipated the County tasks will include but not be limited to the following actions: a. Ensuring that all required ecological studies are completed. b. Ensuring that a detailed wetland management plan is completed in cooperation with the MDEQ. c. Overseeing and managing the development of the Lyon Oaks property consistent with MDEQ requirements. d. Establishing a conservation easement over such portion of the parcel as may be required by the MDEQ. It is anticipated the easement will be in place by the end of 2007. e. Providing all information necessary for the RCOC to utilize the Wetland for wetlands mitigation credits with the MDEQ. 6) The County will grant Site access to the RCOC and the MDEQ or its duly authorized agents to monitor or inspect construction, maintenance or repairs on the Wetland. Page 3 of 7 7) The County will keep and maintain complete and accurate records as to all costs associated with the Project and shall make same available to the RCOC at all reasonable times. 8) Once the Wetland has become a functioning wetland, as approved by the MDEQ, the County will, in accordance with the conservation easement, maintain said Wetland. 9) All affected property will remain in the ownership of the County, for the use and enjoyment of the public as a Natural Area. 10)Notwithstanding anything within this agreement to the contrary, the County makes no representations, warranties or guarantees that the Wetland will succeed or that the Michigan Department of Environmental Quality will grant mitigation credits. II. ROAD COMMISSION RIGHTS AND RESPONSIBILITIES 1) The RCOC shall be responsible for 100 percent of the total cost of the project, which shall not exceed $243,700.00. 2) In the event there are proposed change orders or costs which would cause the Project to exceed its estimated cost of $243,700.00, the County shall provide the RCOC prior notice of said proposed change order. The RCOC may either agree to the proposed additional cost or terminate the agreement. Should the RCOC terminate this agreement under this section, the RCOC agrees to restore the site to a condition reasonably equivalent to that before the Project. 3) The RCOC shall make payments to the County upon submission of an invoice and approval by the RCOC. 4) It is anticipated payment will be made in accordance with the following milestones: a. 25% upon execution of the contract with the selected contractor. b. The balance upon submission to the RCOC by the County of invoices, from time to time, as the work progresses. 5) Invoices shall not be submitted more often than once a month. Final billing under this contract shall be submitted in a timely manner but not later than 90 days after completion of Services. 6) In the event of termination before wetland credits are approved, the RCOC will, if requested by the County, consent to release of all or part of any Wetland Conservation Easement between the County and the MDEQ. Page 4 of 7 7) The RCOC shall assist the County in complying with MDEQ requirements for mitigation credits, including assisting with the preparation of all documents and reports needed to obtain said mitigation credits. 8) Following construction, the RCOC will monitor and fund maintenance of the Wetland as necessary until the Wetland is approved by the MDEQ as a functioning wetland. This process is expected to take up to five (5) years. If, in the determination of the MDEQ, the Wetland requires additional work to function as a wetland, the RCOC will either modify, alter or repair the Wetland to the satisfaction of the MDEQ during the period prior to MDEQ approval, or terminate the agreement. Should the RCOC terminate this agreement under this section, the parties will agree as to whether restoration of the site is required, said restoration to be paid for by the RCOC. The Parties understand that obligations under this Section are independent of and above and beyond obligations set forth in Section (11)(1) of this Agreement. 9) The RCOC reserves the right to review and approve any agreement between the County and the MDEQ in connection with the Project. RCOC approval will not be unreasonably withheld. III. CONTINGENCIES The duties set forth in this Agreement are subject to the County approving and successfully entering into a contract with an appropriate vendor. IV. MODIFICATION Any changes to this Agreement shall be in writing and approved by both Parties. V. EFFECTIVE DATE This Agreement will become effective on the latter of the two dates listed on the signatory page. VI. LIABILITY Each Party shall be responsible for its own acts and the acts of its employees and agents, the costs associated with those acts, and the defense of those acts. Neither party shall have any rights against the other party for indemnification (e.g., contractual, equitable, or by implication), contribution, subrogation, and/or any other right except as expressly provided herein. Page 5 of 7 VII. RESERVATION OF RIGHTS 1) This Agreement does not and is not intended to impair, divest, delegate, or contravene any constitutional, statutory, and/or other legal right, privilege, power, obligation, duty, or immunity of the Parties. 2) It is declared that the work to be performed under this Agreement is a governmental function. It is the intention of the parties hereto that this Agreement shall not, in any manner, be construed to waive the defense of governmental immunity, which the RCOC and the County possess prior to the execution of this Agreement. VIII. SEVERABILITY If a court of competent jurisdiction finds a term or condition of this Agreement to be illegal or invalid, then the term or condition shall be deemed severed from this Agreement. All other terms, conditions, and provisions of this Agreement shall remain in full force. IX. GOVERNING LAWS This Agreement shall be construed, interpreted and governed in accordance with the laws of the State of Michigan. X. ENTIRE AGREEMENT 1) This agreement includes seven (7) pages and attachment A. 2) Except as otherwise expressly stated herein, this Agreement represents the entire agreement and understanding between the Parties. This Agreement supersedes all other oral or written agreements between the Parties. 3) It is the intention of the Parties hereto that this Agreement is not made for the benefit of any third party. Page 6 of 7 XI. NOTICE Notices for the purposes set forth in this Agreement are to be delivered to the following persons: FOR THE RCOC FOR THE COUNTY IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized representatives as of the date above. The signatories warrant that they are authorized to execute this Agreement on behalf of their respective organizations. ROAD COMMISSION FOR OAKLAND COUNTY By: Its: Dated: COUNTY OF OAKLAND By: Its: Dated: Page 7 of 7 QAKIAN I ;ETA m Lyon Oaks County Park Proposed Wetland Mitigation Site 'The informabon provided herewith has been complied from recorded deeds, plats, tax reaps, surveys and other public records. It is note legally recorded map or survey and, not intended to be used as one Users should consult the rnfonnation sources mentioned above when queshons anse SOIL LEGEND Lyon Oaks County Park - 2006 Aerial Symbol 10B 11B 17A 19 27 35A 39 44B 52A Oakland County Parks & Recreation 2800 Watkins Lake Road VVaterford, MI 48328 Daniel Stencil Executive Officer Map Created on July 30, 2007 In Park Boundary 20-acre Project Site USGS Soil Type _ 2-Foot Contour I Feet 0 230 460 920 Name Marlette sandy loam, 1 to 6 percent slopes Capac sandy loam, 0 to 4 percent slopes Wasepi sandy loam, 0 to 3 percent slopes Sebewa loam Houghton and Adrian mucks Thetford loamy fine sand, 0 to 3 percent slopes Granby loamy sand Riddles sandy loam, 1 to 6 percent slopes Selfridge loamy sand, 0 to 3 percent slopes Drainage Class Well drained Somewhat poorly drained Somewhat poorly drained Poorly drained Very poorly drained Somewhat poorly drained Very poorly drained Well drained Somewhat poorly drained Ateirk_ -1/ 114)PP"" frallt ..101••• MEM/ 1....r 111110•111/4iii 7•1111."'s mows. r MEM. ANINMENW AGREEMENT FOR CONSERVATION EASEMENT (This instrument is exempt from County and State transfer taxes pursuant to MCL 207.505(a) and MCL 207.526(a), respectively) This CONSERVATION EASEMENT is created , 20 , by and between (name) married/single (circle one), or corporation, partnership, municipality, or limited liability company (circle one), whose address Is (Grantor) and St the Michigan Department of Environmental Quality (MDEQ), whose address is, Constitution Hall, 1 Floor South, P.O. Box 30458, Lansing, Michigan 48909-7958; or 525 West Allegan Street, Lansing, Michigan 48933 (Grantee); The Grantor is the fee simple title holder of real property located in (circle one) the Township/City of County, and State of Michigan, legally described in , Exhibit A. MDEQ is the agency charged with administering Part 303, Wetlands Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA), and Permittee/Grantor has applied for a Permit (MDEQ File Number - - ) pursuant to Part 303 to authorize activities that will impact regulated wetland. The MDEQ evaluated the permit application and determined that a permit could be authorized for certain activities within regulated wetlands provided certain conditions are met, and Permittee/Grantor has agreed to grant the MDEQ a Conservation Easement that protects the wetland mitigation site and/or the remaining wetlands on the property and restricts further development to the area legally described in Exhibit B. The Conservation Easement (the Easement Premises) consists of approximately acres. The MDEQ shall record this Agreement with the county register of deeds. ACCORDINGLY, Grantor conveys this Conservation Easement to Grantee pursuant to Subpart 11 of Part 21, Conservation and Historic Preservation Easement, of the NREPA, MCL 324.2140 et seq., on the terms and conditions stated below. 1. The purpose of this Agreement is to protect the functions and values of existing or established wetlands and its natural resource values on the Easement Premises consistent with the Permit and the protection of the benefits to the public derived from wetlands and integral habitat, by requiring Grantor to maintain the Easement Premises in its natural and undeveloped condition. 2. Except as authorized under MDEQ Permit Number - - issued on ___/ /20 or _ _ as otherwise provided in this Agreement, Grantor shall refrain from, and prevent any other person from altering or developing the Easement Premises in any way. This includes, but is not limited to: 1 a) Alteration of the topography; b) Creation of paths, trails, or roads; c) The placement of fill material as defined in Part 303 of the NREPA, MCL 324.30301 et seq., as amended; d) Dredging, removal, or excavation of any soil or minerals; e) Drainage of surface or groundwater; f) Construction or placement of any structure; g) Plowing, tilling, or cultivating the soils or vegetation; h) Alteration or removal of vegetation, including the planting of non-native species; i) Ranching j) Construction of unauthorized utility or petroleum lines; k) Storage or disposal of garbage, trash, debris, abandoned equipment or accumulation of machinery, or other waste materials, including accumulated vegetative debris such as grass clippings, leaves, yard waste, or other material collected and deposited from areas outside the Easement Premises; I) Use or storage of off-road vehicles including, but not limited to, snowmobiles, dune buggies, all- terrain vehicles, and motorcycles; m) Placement of billboards or signage, except as otherwise allowed in the Permit or this Agreement; n) Use of the wetland for the dumping of untreated stormwater at a volume that adversely impacts the hydrology of the wetland. 3. Cutting down, destroying, or otherwise altering or removing trees, tree limbs, shrubs, or other vegetation, whether living or dead, is prohibited within the Easement Premises, except with the written permission of Grantee, expressly for the removal of trees or limbs to eliminate danger to health and safety; to reduce a threat of infestation posed by diseased vegetation; or to control invasive non-native plant species that endanger the health of native species. 4. Grantor is not required to restore the Easement Premises due to alterations resulting from causes beyond the owner's control, including, but not limited to, unauthorized actions by third parties that were not reasonably foreseeable; or natural disasters such as unintentional fires, floods, storms, or natural earth movement. 5. Grantor may perform activities within the Easement Premises consistent with the Permit or the mitigation requirements. Grantor shall provide 5 days notice of undertaking any mitigation activity even if the mitigation project has been conceptually approved. Any activities undertaken pursuant to the Permit, a mitigation project, or this Agreement, shall be performed in a manner to minimize the adverse impacts to existing wetland or mitigation areas. 6. Grantor warrants that Grantor has good and sufficient title to the Easement Premises described in Exhibit B. 7. Grantor warrants that any other existing interests or encumbrances in the Easement Premises have been disclosed to the MDEQ. 8. Grantor warrants that to the best of Grantor's knowledge no hazardous substances or hazardous or toxic wastes have been generated, treated, stored, used, disposed of, or deposited in or on the property. 9. This Agreement does not grant or convey to Grantee or members of the general public any right to possession or use of the Easement Premises. 10. Grantor shall continue to have all rights and responsibilities as owner of the property subject to this Agreement. Grantor shall continue to be solely responsible for the upkeep and maintenance of the Easement Premises, to the extent it may be required by law. 11. Grantee and its authorized employees and agents may enter the Easement Premises upon reasonable notice to Grantor to determine whether the Easement Premises are being maintained in compliance with the terms of this Agreement, mitigation, or other conditions of the Permit; and for the purpose of taking corrective actions for failure to comply. If Grantee is entering the easement premises for purposes of 2 taking corrective actions, Grantor shall be provided with 14 days notice to provide the opportunity to cure the failure to comply. 12. This Agreement shall be binding upon the successors and assigns of the parties and shall run with the land in perpetuity unless modified or terminated by written agreement of the parties. 13. This Agreement may be modified only in writing through amendment of the Agreement. Any modification shall be consistent with the purpose and intent of the Agreement. 14. This Agreement may be enforced by either an action at law or in equity and shall be enforceable against any person claiming an interest in the Easement Premises despite a lack of privity of estate or contract. 15. Grantor shall indicate the existence of this Agreement on all future deeds, mortgages, land contracts, plats, and any other legal instrument used to convey an interest in the Easement Premises. 16. A delay in enforcement shall not be construed as a waiver of the Grantee's rights to enforce the conditions of this Agreement. 17. This Agreement shall be liberally construed in favor of maintaining the purpose of the Conservation Easement. 18. If any portion of this Agreement is determined to be invalid by a court of law, the remaining provisions will remain in force. 19. This Agreement will be construed in accordance with Michigan law. 20. In addition to the terms of the Permit issued by Grantee, this document sets forth the entire agreement of the parties. It is intended to supercede all prior discussions or understandings. 21. Within 90 days after this Agreement is executed, Grantor shall place and maintain at Grantor's expense, signs, fences, or other suitable markings along the Easement Premises to clearly demarcate the boundary of the Easement Premises. LIST OF ATTACHED EXHIBITS Exhibit A: A legal description of the Grantor's property, inclusive of the Easement Premises. Exhibit B: A legal description of the Easement Premises. Exhibit C: A survey map depicting the Easement Premises that also includes identifiable landmarks such as nearby roads to clearly identify the easement site. Exhibit D: A legal description that provides a path of legal access to the Easement Premises and a map that indicates this access site that MDEQ staff will use for ingress and egress to and from the Easement Premises; or if the Easement is directly connected to a publicly accessible point, such as a public road, a statement is required that authorizes MDEQ staff ingress and egress to and from the Easement Premises with a map that clearly indicates the connection of the public access site to the Easement Premises. 3 IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. In signing this Agreement, the Signatory warrants that he or she has the authority to convey the Conservation Easement on behalf of the Grantor. GRANTOR: Signature: Type/Print Grantor's Name Title (if signing on behalf of an organization Organization Name (if signing on behalf of an organization) STATE OF MICHIGAN } } ss COUNTY OF IF SIGNING ON BEHALF OF AN ORGANIZATION, THIS MUST BE COMPLETED: The foregoing instrument was acknowledged before me this day of , 20 by , (name[s]) the , (title) of (Organization name) a , (state) corporation, partnership, municipality, or limited liability company (circle one), on behalf of the organization. (Signature of Notary Public) (Typed or Printed name of Notary Public) Acting in: County, Michigan My Commission Expires: (OR) IF SIGNING AS AN INDIVIDUAL OR MARRIED PERSON, THIS MUST BE COMPLETED: The foregoing instrument was acknowledged before me this day of , 20 by , (name[s]) (marital status). (Signature of Notary Public) (Typed or Printed name of Notary Public) Acting in: County, Michigan My Commission Expires: 4 GRANTEE: STATE OF MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY LAND AND WATER MANAGEMENT DIVISION Mary Ellen Cromwell, Chief STATE OF MICHIGAN} } ss COUNTY OF INGHAM} The foregoing instrument was acknowledged before me this day of , 20 by Mary Ellen Cromwell, Chief, Land and Water Management Division, State of Michigan, on behalf of the Michigan Department of Environmental Quality. (Signature of Notary Public) (Typed or Printed name of Notary Public) Acting in: Ingham County, Michigan My Commission Expires: Form Drafted By: The Honorable Mike Cox, Attorney General Department of Attorney General Environment, Natural Resources, and Agriculture Division P.O. Box 30755 Lansing, Michigan 48909 AFTER RECORDING, RETURN TO: Michigan Department of Environmental Quality Land and Water Management Division Constitution Hall, 1 st Floor South P.O. Box 30458 Lansing, Michigan 48909-7958 (November 1, 2005) 5 Ruth Johnson, County Clerk Resolution #07183 August 16, 2007 Moved by Gregory supported by Long the resolutions (with fiscal notes attached) on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Burns, Coulter, Crawford, Douglas, Gershenson, Gosselin, Gregory, Greimel, Hatchett, Jacobsen, KowaII, Long, Middleton, Nash, Potter, Potts, Scott, Spector, Suarez, Woodward, Zack, Bullard. (22) NAYS: None. (0) A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the Consent Agenda were adopted (with accompanying reports being accepted). OPP HIDER ANNE TN FORMIC 601.011011 W/07 STATE OF MICHIGAN) COUNTY OF OAKLAND) I, Ruth Johnson, 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 August 16, 2007, with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 16th day of August, 2007.