HomeMy WebLinkAboutResolutions - 2018.12.06 - 30911MISCELLANEOUS RESOLUTION #18393 November 14, 2018
BY: Commissioner Philip Weipert, Chairperson, Planning and Building Committee
IN RE: WATER RESOURCES COMMISSIONER — CITY OF NOVI SANITARY SEWER SYSTEM
OPERATION AND MAINTENANCE AGREEMENT
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS the City of Novi has a sanitary sewer system currently operated and maintained through
Oakland County by the office of the Water Resources Commissioner on a non-profit basis; and
WHEREAS the City of Novi desires to engage the County to continue to operate and maintain its sewer
system on a non-profit basis pursuant to the terms of an operation and maintenance agreement; and
WHEREAS Oakland County, by and through the office of the Water Resources Commissioner, has
qualified personnel capable of providing water operations and maintenance services; and
WHEREAS the terms of an agreement for the operation and maintenance of the City of Novi sewer
system by Oakland County through the office of the Water Resources Commissioner have been
negotiated, set forth in writing, and approved by resolution of the City of Novi's City Council on October 8,
2018.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby
approves the City of Novi Sewer System Operation and Maintenance Agreement.
BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners hereby directs its
Chairperson or designee to execute the City of Novi Sewer System Operation and Maintenance
Agreement.
Chairperson, on behalf of the Planning and Building „Cpaciittee, I Me /the adoption of the foregoing
resolution.
ssionekr Philip Weipert, District #8
erson, Planning and Building Committee
PLANNING AND BUILDING COMMITTEE
Motion carried unanimously on a roll call vote.
Execution Copy
CITY OF NOVI
SEWER SYSTEM
OPERATION AND MAINTENANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
2018, by and between the COUNTY OF OAKLAND, a Michigan constitutional corporation
("County"), whose address is 1200 N. Telegraph, Pontiac, Michigan, 48341 and the CITY OF
NOVI, a Michigan municipal corporation, whose address is 45175 W. Ten Mile Road, Novi,
Michigan 48375 ("City"). In this Agreement, either the County and/or the City may also be
referred to individually as a "Party" or jointly as "Parties."
Recitals:
WHEREAS, pursuant to Michigan Public Act 185 of the Public Acts of 1957, as
amended, MCL 123.731 et seq., ("Act 185") and Michigan Public Act 342 of the Public Acts of
1939, as amended, MCL 46.171 et seq., ("Act 342") the County Board of Commissioners
established a county system of sewage disposal system improvements to serve the City (and
the City of Walled Lake), commonly known as the "Huron-Rouge Sewage Disposal System" ;
and,
WHEREAS, the County subsequently acquired and constructed the "Huron-Rouge
Sewage Disposal System — Walled Lake Arm" which consists, in part, of a wastewater treatment
plant to serve the City (and the City of Walled Lake), commonly known as the "Walled Lake —
Novi Wastewater Treatment Plant" and designated the Oakland County Water Resources
Commissioner (formerly known as the Oakland County Drain Commissioner) pursuant to Act
342 as the "County Agency" for the "Huron-Rouge Sewage Disposal System — Walled Lake
Arm" 2 with all powers and duties with respect thereto as are provided by Act 342; and,
1 The County, Novi Township and Village of Novi entered into a contract establishing, acquiring and improving the Huron-Rouge
Sewage Disposal System, dated April 20, 1962. The terms of this contract were agreed to by the City of Walled Lake when it
approved the contract establishing, acquiring and improving the Huron-Rouge Sewage Disposal System Walled Lake Aim,
z The County and the Cities of Walled Lake and Novi, entered into the following contracts establishing, acquiring and improving the
Huron-Rouge Sewage Disposal System —Walled Lake Arm: contract dated September 1, 1966, as amended February 1, 1969 and
April, 1969, commonly understood as the "Base Contract"; contract dated March 1, 1989 identified as the "Huron-Rouge Sewage
Disposal System Walled Lake-Novi Wastewater Treatment Plant 1989 Enlargement Contract", and contract dated October 1, 2014
identified as "Huron-Rouge Sewage Disposal System Walled Lake-Novi Wastewater Treatment Plant 2014 Retention Basin and
Capacity Improvements Contract!'
WHEREAS, pursuant to the contracts and amendments thereto establishing the "Huron-
Rouge Sewage Disposal System — Walled Lake Arm" between the County and City, the City is
responsible for constructing, operating and maintaining a sewage collection system and
transporting wastewater from the individual property owners and users within the City to the
Walled Lake — Novi Wastewater Treatment Plant and to a wastewater facility owned by Charter
Township of Commerce (known as the "Commerce Wastewater Treatment Plant"), which is
known as the City of Novi Sewer System, as it may be expanded or altered from time to time
(the "System"); and,
WHEREAS, the County, through its Board of Public Works pursuant to Act 185, and the
City entered into an agreement dated August 16, 1971 ("City of Novi Sewage Disposal System
Operating Agreement"), whereby the County agreed to operate and maintain the portion of the
System that is tributary to the Walled-Lake Novi Wastewater Treatment Plant as the agent of
and for the City; and,
WHEREAS, the City desires to engage the County to operate and maintain portions of
the System identified in Exhibit A ("Service Area") that are tributary to the Walled Lake-Novi
Wastewater Treatment Plant and the Commerce Township Wastewater Treatment Plant on
behalf of the City on a non-profit basis and in accordance with the terms and conditions set forth
for in this Agreement; and,
WHEREAS, the County, by and through the Office of the Oakland County Water
Resources Commissioner ("WRC"), has qualified personnel capable of providing sewer
operations and maintenance services; and,
WHEREAS, the Michigan Constitution of 1963, Article 7, § 28, Act 342 of 1939, and the
Urban Cooperation Act of 1967, being MCL 124,501, et. seq. (the "Act 7 of 1967"), authorizes a
political subdivision to exercise jointly with any other political subdivision any power, privilege or
authority which such political subdivisions share in common with which each might exercise
separately; and,
WHEREAS, in order to promote the public health and welfare of the residents and
property owners, and to efficiently operate and maintain the System, the Parties have been
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authorized to execute this Agreement for the Services according to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual promises,
representations, and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the County and the
City mutually agree as follows:
Article I. Statement of Authority and Purpose.
1.1 Authority. Pursuant to Act 342 of 1939, Act 7 of 1967, and any other applicable laws of
the State of Michigan, the County and the City enter into this Agreement to establish
terms and conditions for the operation and maintenance of the System. Each Party
agrees to take all actions reasonably necessary to effectuate the objectives set forth in
this Agreement.
1.2 Purpose. The purpose of this Agreement is to authorize the County to operate and
maintain a portion of the City's Sewer System, identified in Exhibit A ("Service Area"),
on behalf of the City on a non-profit basis and in accordance with the Services detailed
in Exhibit B attached hereto. In exchange for the Services, the County shall be
reimbursed for its Costs and Overhead from the Revenue collected and deposited in the
System Enterprise Fund maintained by the County on behalf of and for the benefit of the
City. This Agreement shall supersede and replace City of Novi Sewage Disposal System
Operating Agreement dated August 16, 1971. However, nothing in this Agreement shall
supersede the conditions and obligations of the Parties, including but not limited to the
obligations concerning the types of sewage to be collected by the System and
transported to the Walled-Lake Novi Wastewater Treatment Plant and/or the Commerce
Township Wastewater Treatment Plant, the condition and state of repair of the System,
the regulation of connections to the System, or financing obligations, as set forth in the
agreements and amendments thereto establishing Huron-Rouge Sewage Disposal
System and Huron-Rouge Sewage Disposal System — Walled Lake Arm between the
Parties. 3
Article IL Definitions.
In addition to the above defined terms (i.e. "County", "City", "WRC", "Party" and
"Parties") and any terms defined in other sections of this Agreement (e.g., "Services"), the
Parties agree that the following words and expressions, whether used in the singular or plural,
possessive or non-possessive, and/or either within or without quotation marks, shall be defined
and interpreted as follows:
2.1 "Agreement" shall mean each of the various provisions and parts of this document,
including all attached Exhibits and any amendments thereto, as may be executed and
approved by the Parties.
3 See footnotes 1 and 2 for reference.
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2.2 "Cost(s)" shall be defined as the cost of all labor, including actual or indirect cost
allocations for statutory and customary fringe benefits, overtime, material and supplies,
power and utility services, vehicle/equipment rental and subcontractor services, and
other services as set forth in this Agreement and devoted to the Services as defined in
this Agreement.
2.3 "Contractor" shall be defined as an independent contractor engaged by the County to
perform the Services and responsibilities necessary to carry out the objectives under this
Agreement.
2.4 "County Agent" or "County Agents" shall be defined as any and all Oakland County
elected officials, appointed officials, directors, board members, commissioners,
authorities, other boards, cornmittees, commissions, employees, managers,
departments, divisions, volunteers, agents, representatives, and/or any such persons'
successors or predecessors (whether such persons act or acted in their personal
representative or official capacities), and/or any persons acting by, through, under, or in
concert with any of them, excluding the City and/or any City Agents, as defined herein.
2.5 "City Agent" or "City Agents", shall be defined to include any and all City officers, elected
officials, appointed officials, directors, board members, council members, authorities,
boards, committees, commissions, employees, managers, departments, divisions,
volunteers, agents, representatives, consultants, and/or any such persons' successors
or predecessors (whether such persons act or acted in their personal, representative, or
official capacities), and/or any persons acting by, through, under, or in concert with any
of them, excluding the County and/or any County Agents, as defined herein.
2.6 "Claim(s)" shall be defined to include any and all alleged claims, complaints, demands
for relief or damages, lawsuits, and causes of action, whether in law or equity, tort,
contract, or otherwise, by third parties, arising out of the ownership, operation,
maintenance of the System, but does not include claims between the Parties.
2.7 "Overhead" shall be defined to include the following: all allocations of the labor cost,
including statutory and customary fringe benefits, of personnel responsible for
administering this contract or supervising the work performed in connection with this
Agreement; an allocation of expenses of the WRC; and an allocation of indirect costs of
Oakland County charged to the WRC for support services, such as (but not limited to)
legal, personnel, accounting, computer support, and insurance/risk management.
2.8 "Rates and Charges" shall be defined as the charges and other fees, such as late fees,
connection charges, capital charges, meter charges, that the City charges to and paid by
the users of the System for the services provided by the City, including without limitation
the Services provided pursuant to this Agreement, as periodically established by
ordinance and/or resolution of the City.
2.9 "Revenue" shall be defined as the funds derived from the Rates and Charges assessed
against and paid by customers or users of the System, and other sources of revenue,
such as grants.
2.10 "State" shall be defined as the "State of Michigan," a sovereign governmental entity of
the United States, and shall also include within its definition any and all departments or
agencies of State government.
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2.11 "System" shall be defined as the sanitary sewer system identified in Exhibit A ("Service
Area") that is tributary to the Walled Lake-Novi Wastewater Treatment Plant and the
Commerce Township Wastewater Treatment Plant
2.12 "System Enterprise Fund" shall be defined as the account for the System established
and maintained by the County on behalf of the City.
Article III. County Responsibilities; WRC Operation and Maintenance Services.
3.1 Services. The County agrees to perform the operation and maintenance services for the
System (all of the following being referred to in this Agreement as the "WRC Services" or
"Services") as set forth in Exhibit B attached to this Agreement.
(a) The Services to be provided by the County to the City under this Agreement shall
be performed by County Agent(s) and/or Contractor. The County will maintain
and designate a sufficient number of County Agents, having sufficient
qualifications, in order to carry out and provide the Services under and in
accordance with this Agreement. However, the County will give due
consideration to any input received from the City concerning the number and
charges of Contractors and County Agent(s) assigned to provide Services for the
System.
(b) The County shall be responsible for furnishing all County Agent(s) and
Contractors with all job instructions, job descriptions and job specifications and
shall in all circumstances control, supervise, train or direct ali County Agent(s) in
the performance of any and all Services under this Agreement. The County shall
remain the sole and exclusive employer of all County Agents.
(c) This Agreement is neither intended, nor shall it be interpreted, to create, change,
or otherwise affect or control, in any manner any employment right, privilege,
benefit, or any other term or condition of employment, of any kind or nature
whatsoever, in, upon, or for any County Agent. Except as expressly provided for
under the terms of this Agreement and/or laws of this State, no County Agent,
while such person is currently and/or actively employed by the County shall be
employed or utilized to perform any other services by or for the City during the
term of this Agreement. This section shall not prohibit the City from employing
any person who was a former County Agent but is no longer employed in that
capacity by the County.
3.2 System Capital Replacement Expenditures. The County shall not expend funds from the
System Enterprise Fund for capital replacement or improvement projects without prior
approval from the City.
3.3 Establish Reserves. The County may establish a reserve for system emergencies,
system replacement, or other purposes with the consent of the City.
3.4 Independent Contractor. At all times and for all purposes under the terms of this
Agreement, the County and/or any and all County Agents' legal status and relationship
to the City shall be that of an Independent Contractor.
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3.5 Insurance - County. The County will endeavor to obtain and to maintain for the duration
of this Agreement the following insurance coverages with insurance companies licensed
to do business in the State of Michigan, but only if such insurance coverage is
commercially available. It is understood and agreed, that all costs, including the
premium, self-insured retention or deductible, shall be included as a System Cost:
(a) Public Liability or Professional Liability or Errors and Omissions with limits of
$10,000,000.00 per occurrence and $15,000,000 aggregate.
(b) Commercial General Liability — with limits of $10,000,000 per occurrence and
$15,000,000 aggregate.
(c) Certificates of Insurance. So long as the City maintains current on its annual
premium for the coverage outlined herein, it shall be a Named insured under the policy,
(d) Non-Exclusivity and Limitations of Insurance Coverage. It is understood by the
City, that the insurance coverages set forth herein and obtained and maintained by the
County is not exclusive to this Agreement. Meaning, that the County may purchase and
maintain the insurance coverages to insure the County (its respective elected officials,
officers, employees, and agents) against such Claims arising from the County Services
provided under this Agreement, as well as similar Services the County provides to other
municipal public corporations. As such, the City, along with other municipal corporations,
will share in the cost of the insurance premium paid by the County. To this end, the
County agrees to reasonably allocate the premium paid for the insurance to the various
water and sewer systems operated and maintained by the County, including the City's
System, and provide reasonable justification for the allocation of said cost to the City. In
addition, it is understood and agreed, that the purchase of insurance and payment of the
premium (as a System Cost), does not guarantee insurance coverage for any Claim. All
policies set forth herein are subject to the terms, conditions, and limitations set forth in
the insurance policies. As such, uninsured Claims shall be and remain a System Cost.
Moreover, insured Claims arising from the County's Services to a municipal water and
sewer system, other than the City's System, may limit or possibly eliminate coverage of
a Claim arising from the County's Services under this Agreement. In the event of such
an occurrence, it is understood that an otherwise insured Claim that is in excess of any
valid and collectible insurance rights/policies, shall be and remain a System Cost.
3.6 Permit Assistance. The County will assist the City in the procurement of all permits,
guarantees, warranties, easements, licenses, and other similar approvals and consents
necessary to operate and maintain the System received by or granted to the City as the
owner of the System.
3.7 Regulatory Compliance. The County will supervise all regulatory compliance and
financial transactions, except for the enforcement of the City's ordinances or regulations.
3.8 Disbursing Funds. Upon request from the City for the dispersal of funds from the System
Enterprise Fund, the County shall promptly disburse funds to the City in the amount and
manner requested, provided that the balance remaining in the System Enterprise Fund
is adequate for the operation and maintenance of the System.
Article IV. City's Responsibilities.
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4.1 Ordinance — Rates and Charges. The City has adopted or shall hereafter adopt one or
more ordinances or resolutions as are necessary under the terms of the Agreement,
which provides the Rates and Charges sufficient to provide the Revenue necessary to
reimburse the County for its Costs and Overhead related to the Services provided by the
Agreement; and provide for the billing and collection of the Rates and Charges
pertaining to the System.
4.2 Ordinance — Enforcement. The City is responsible for enforcement of the City's
ordinances and regulations. The City has adopted or shall hereafter adopt one or more
ordinances regulating or prohibiting the discharge of fats, oils and grease, or industrial
waste to the System, including those pertaining to user pretreatment standards; and, the
billing and collection of Costs related thereto.
4.3 Capital Replacement of System. The City shall be responsible for expenditures for all
capital replacement of System components.
4.4 Testing and Sampling Fees; Consultant Fees. The City agrees that the term Costs
includes, but not limited to, fees for testing, sampling, engineering services or studies,
master planning, capital improvements, as well as all of the costs related to procurement
of the same, are a Cost which may be accounted for in the Rates and Charges.
4.5 Permits - City. The City will be responsible for procuring, and in accordance with their
respective terms, all permits, guarantees, warranties, easements, licenses, and other
similar approvals and consents necessary to operate and maintain the System received
by or granted to the City as the owner of the System.
4.6 City - Insurance.
(a) It shall be the responsibility of the City to determine and obtain real and personal
property insurance with limits that the City in its discretion, deems necessary and
appropriate for the System and components of the System. To the extent
permitted by law, and subject to the availability of funds necessary for the County
to operate and maintain the System, the City may include as a System Cost, the
City's cost of insurance set forth herein, including any premium, self-insured
retention or deductible, The County shall disburse funds to the City from the
System Enterprise upon request from the City to pay for the cost of real and
personal property insurance. In lieu of the City purchasing real and personal
property insurance described herein, if commercially available to the County, the
County, on behalf of the City, may purchase and maintain real and personal
property, and charge the same as System Cost.
(b) It shall be the responsibility of the City to determine and obtain General Liability
Insurance or self-insurance to protect the City's liabilities and exposures set forth
in Article VI.
4.7 Property Access. City will be responsible for and will secure the right of access
necessary for County Agent(s) or Contractors to perform the Services under this
Agreement. The City will be responsible for all costs or Claims associated with securing
rights of access.
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4.8 Compliance with State and Federal Law and Regulations. The City will be and remain
responsible for Costs associated with compliance with all federal, State, and local laws,
ordinances, regulations, and requirements in any manner affecting any work or
performance of this Agreement or with any City duty or obligation under any applicable
State or federal laws and/or regulations,
4.9 System Ownership. Notwithstanding any other term or condition in this Agreement, no
provision in this Agreement is intended, nor shall it be construed, as constituting a
divestiture or forfeiture of the City's absolute ownership of and authority over the System.
Article V. Compensation for Services.
5.1 Compensation from System Revenue, The County's Costs and Overhead incurred for
the Services shall be compensated from the Revenue from the System. In the event that
the Costs and Overhead exceed the Revenue in any one year, then any deficiency may
be recovered by adjusting the Rates and Charges charged to customers of the System
or from the general fund of the City. In the event that annual Costs and Overhead are
less than the annual Revenue, then upon the sole discretion and direction of the City,
future rates to the customers may be adjusted to balance the account. The County shall
be required to perform an audit of its procedures with respect to the manner of the
computation and assignment of Costs and Overhead to the City within one (1) year of
the date of this Agreement, and shall provide the City with a copy of the results,
including any recommendations regarding Cost and Overhead computation and/or
assignment formulas and practices. Additionally, the City shall be entitled to conduct,
and/or may request the County to conduct, an independent audit of the County's records
relating to the computation and assignment of the City's Costs and Overhead at anytime.
The cost of conducting such a review or audit shall be a Cost of the System.
5.2 County Services Performed Non-Profit Basis. The City acknowledges and agrees that
the County will assist the City in the operations and maintenance of the System on a
non-profit basis for the benefit of the users of the system and therefore the County is
without funds to finance, operate and maintain the System except for the Revenue
derived from the System users. Therefore, it is understood and agreed that in no event
shall the County or its general fund be charged with or liable for the cost of operating,
maintaining, repairing, replacing, or administering the System, All Costs and Overhead
associated with the Services under this Agreement will be the responsibility of the City.
Article VI. Standard of Care; Warranty Waiver; Consequential Damages; Liability; and
PA 222 Liability.
6.1 Standard of Care; Waiver of Warranty and Consequential Damages. The County will
perform the Services under this Agreement in accordance with the standard of care and
diligence normally provided by other professional firms providing similar Services.
However, the County makes no warranty, express or implied, with respect to any
Services provided. SPECIFICALLY, NO WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY IS MADE
OR TO BE IMPLIED BY THE COUNTY WITH RESPECT TO SERVICES PROVIDED
UNDER THIS AGREEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED IN
THIS AGREEMENT, IN NO EVENT SHALL THE COUNTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
WHATSOEVER UNDER CONTRACT, TORT OR OTHERWISE.
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6.2 Liability for Claims. Except as otherwise provided in this Agreement, it is understood that
each Party shall be responsible for any Claims made against that Party and for the acts
or omissions of its respective employees or City/County Agents. With respect to Claims
that arise from the performance of this Agreement, each Party shall seek its own legal
representation and bear the costs associated with such representation including attorney
fees. Except as otherwise provided in this Agreement, neither Party shall have any right
under any legal principle to be indemnified by the other Party or any of its employees or
Agents in connection with any Claim. 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, Nothing in this
Agreement shall be construed as a waiver of the privileges and immunities as provided
by law afforded to the Parties. The Parties expressly reserve all privileges and
immunities as provided by law.
6.3 PA 222 Liability for Third-Party Claims Caused by Defects or Infiltration and Inflow of
System. To the extent permitted by law, the City agrees to pay any and all Claims,
including the defense of and claims asserted against the County, for sewage disposal
system events as defined in Section 16 of Act 170 or the Public Acts of 1964, as
amended (by Public Act 222 of the Public Acts of 2001), MCL 691,1416, arising from
design or construction defects, or from the infiltration and/or inflow of storm water to the
System.
6.4 Force Majeure; System Malfunction; Misuse or Vandalism of System. The City will be
responsible for damage and liability to the System or components thereof caused by
flood, fire, Acts of God or other force majeure, civil disturbance, Acts of War, terrorism or
misuse of property. In addition, the City will be responsible for all Claims, damages and
liability caused by design and/or construction defects, malfunction or failure of the
System or any component thereof, sewer breaks, and vandalism provided the same is
not directly caused by the acts or omissions of County Agents.
6.5 No Third Party Beneficiary. This Agreement does not create any rights or benefits to
parties other than the City and the County.
Article VII. Cooperation and Communication; Dispute Resolution.
7.1 Cooperation. The County agrees to ensure that all County Agents fully cooperate with
City and City Agents in the performance of all Services under this Agreement. The City
agrees to ensure that City Agents cooperate with County Agent(s) in the performance of
the Services under this Agreement.
7.2 Communication. There shall be an open and direct line of communication established
and maintained between the Parties in order to promote the handling of both routine and
emergency situations in a timely and cooperative manner according to the
circumstances as they exist or become known. Each Party will designate one or more
liaisons for such purposes, and will notify the other Party of such designee(s).The
liaisons shall also be used for purposes of communicating and coordinating specific
needs, plans, instructions, issues, concerns and other matters relating to the System or
Services.
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7.3 Dispute Resolution. The Parties agree that any and all claims alleging a breach of this
Agreement or with respect to the Services provided under this Agreement, shall first be
submitted to an alternative dispute resolution process. Such an alternative dispute
resolution process may include, but is not limited to, facilitation, binding arbitration, or
non-binding arbitration. The Parties shall agree upon the form and procedures for the
agreed upon alternative dispute resolution process. If the matter is not resolved through
an alternative dispute resolution process, or if the Parties cannot agree upon the form
and procedures for the alternative dispute resolution process, the Parties may seek legal
recourse in a court of competent jurisdiction. For claims requiring immediate relief to
prevent irreparable harm, either Party may seek relief directly from a court of competent
jurisdiction without submitting the matter to the alternative dispute resolution process.
Article VIII. Agreement Approval; Effective Date; and Amendments; Changes to
Scope of Services. Term; and Termination.
8.1 Agreement Approval; Amendments; and Effective Date. Except as otherwise provided
herein, this Agreement, and/or any subsequent amendments thereto, shall not become
effective prior to the approval by resolutions of both the City and the County. The
Effective Date of this Agreement, and any amendments hereto, shall be the date as
reflected in the opening paragraph of this Agreement.
8.2 Amendment to Scope of Services. During the term of this Agreement, the Scope of
Services attached hereto as Exhibit B, may be amended by the WRC and approved by
resolution of the City during the term of this Agreement without requiring a resolution
from the County Board of Commissioners.
8.3 Term. The Parties agree that the term of this Agreement shall begin on the Effective
Date of this Agreement as set forth in Section 8.1. This Agreement shall be effective for
an initial term of ten (10) years from the effective date, and shall be automatically
extended for additional ten (10) year terms, unless terminated as provided herein, or
otherwise agreed to in writing by the Parties.
8.4 Termination. Notwithstanding any other term or provision in any other section of this
Agreement, either Party, upon a minimum of One Hundred and Eighty (180) calendar
days written notice to the other Party, may terminate this Agreement for any reason,
including convenience, without incurring any penalty, expense, or liability to the other
Party. The effective date for any such termination is to be clearly stated in the notice.
8.5 Survival of Certain Terms and Conditions Following Termination or Expiration of
Agreement. The Parties agree that record-keeping and audit requirements, any payment
obligations to the other Party, 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 during the
term of this Agreement, shall survive the termination or expiration of this Agreement.
8.6 Cooperation Following Termination of Agreement. In the event the Agreement is
terminated as provided herein, the Parties agree to cooperate in all respects and assist
in the wind down from the County's operation and maintenance of the System. The City
will be responsible for all Costs and Overhead incurred by the County through the date
of termination, including the Costs and Overhead incurred by the County during the
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termination notice period referenced above to wind down and end of the County's
involvement in the provision of the Services.
Article IX. General Provisions.
9.1 Governing Law. 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, in all cases,
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 number,
possessive or non-possessive shall be deemed to include the other whenever the
context so suggests or requires.
9.2 Reservation of Rights; Governmental Function. 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. In addition,
the Parties maintain that the obligations set forth in this Agreement will be in the exercise
or discharge of a governmental function.
9.3 Severability. If any provision of this Agreement or the application to any person or
circumstance is, to any extent, judicially determined to be invalid or unenforceable, the
remainder of the Agreement, or the application of the provision of persons or
circumstances other than those as to which it is invalid or unenforceable, is not affected
and is enforceable, provided the invalid provision does not substantially alter the
Agreement or make execution impractical.
9.4 Binding Contract; Assignment; and Amendments, This Agreement will be binding upon
and for the benefit of the Parties hereto and their respective successors and assigns,
subject to any assignment requiring the prior written consent of the non-assigning Party
by an amendment to this Agreement signed by all Parties, and the assignee binding the
assignee to the terms and provisions of this Agreement.
9.5 Captions. The section headings or titles and/or all section numbers contained in this
Agreement are intended for the convenience of the reader and not intended to have any
substantive meaning and are not to be interpreted as part of this Agreement.
9.6 Notices. Except as otherwise expressly provided for herein, any and all correspondence,
invoices, and/or any other written notices required, permitted or provided for under this
Agreement to be delivered to the following:
COUNTY OF OAKLAND:
OAKLAND COUNTY WATER
RESOURCES COMMISSIONER
1 Public Works Drive
Waterford, Michigan 48328
CITY OF NO VI:
11
City Clerk
CITY OF NOVI
45175W. Ten Mile Road
Novi, Michigan 48375
9.7 Notice Delivery, Except with respect to notices of termination, all correspondence and
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, Notices of termination
shall be personally delivered or sent by certified mail, return receipt requested, and shall
be considered delivered to a party on the date of receipt as represented by the return
receipt or by a proof of personal service.
9.8 Entire Agreement. This Agreement sets forth the entire agreement between the County
and the City and fully supersedes any and all prior agreements or understandings
between them in any way related to the subject matter hereof. It is further understood
and 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 County and the City in any way related to the subject
matter hereof, except as expressly stated herein. This Agreement shall not be changed
or supplemented orally and may be amended only as otherwise provided herein.
9.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be
considered an original, but all of which shall constitute one and the same instrument.
9.10 Recitals. The recitals shall be considered an integral part of the Agreement.
IN WITNESS WHEREOF, this Agreement if executed by the Parties on the date
hereafter set forth in the opening paragraph of this Agreement.
COUNTY OF OAKLAND
By:
Michael J. Gingell, Chairperson
Oakland County Board of Commissioners
CITY OF NOVI
By:
Robert J. Gatt, Mayor
By:
Cortney Hanson, City Clerk
1 2
EXHIBIT "A"
SERVICE AREA
13
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Execution Copy
EXHIBIT B
Scope of Services
Sewer System Operation and Maintenance
The County agrees to perform the following operation and maintenance services of the
portion of the City of Novi Sewer System ("System") that is tributary to the Walled Lake-Novi
Wastewater Treatment Plant and the Commerce Township Wastewater Treatment Plant (all of
the following being referred as the "WRC Services" or "Services") on behalf of the City:
1. Operation and maintenance of pump stations and appurtenances, including the payment
of power costs and lawn and landscape maintenance.
2. Operation and maintenance of the System, including all System force mains, meters,
valves, and all other facilities, equipment and appurtenances that are part of the System.
3. If requested by the City, and provided the County has the capabilities for doing so, the
County will compute and bill quarterly, the charges for the Services rendered to each
user connected to the System in accordance with the Rates and Charges established by
the City. The charges will be payable in accordance with time period as established by
the City by ordinance or resolution, and shall bear such penalties and late charges, as
the City by ordinance shall provide.
4. Provide house lead connection inspections in accordance with City issued permits.
6. Respond to requests from customers and City for maintenance, inspections and repairs,
both emergency and routine.
6. Establish, maintain, manage, and administer a System Enterprise Fund. Revenue
collected by the County shall be deposited and maintained in the System Enterprise
Fund. On a quarterly basis, the County shall determine the costs and overhead incurred
during said quarter in performing the Services under this Contract and deduct such
amount from the System Enterprise Fund as payment for such Services. The County may
establish a reserve for system emergencies or system replacement.
7. Keep all necessary records and books of account pertaining to its dealings with the users
of the System within the City and the System Enterprise Fund, and make same available
to the City upon request.
8. Comply with applicable laws and governmental accounting standards in the keeping,
management, administration, use and auditing of the System Enterprise Fund. Upon
request of the City, provide City a quarterly accounting statement, a quarterly operation
and maintenance activity report and annual report for the City's review in accordance with
the County's fiscal year. Upon request, allow the City or City agents to audit the System
Enterprise Fund accounts, books and statements, and provide City with supporting
documentation and copies of such materials if requested.
9. The County will provide, maintain and monitor a Supervisory Control and Data
Acquisition System (SCADA) to provide alarms on System facilities operated and
maintained by the County.
10. The County will provide a 24-hour, 7-day per week dispatch center to receive alarms from
the SCADA system and any other reports of System emergencies, and will dispatch
emergency service crews to respond to such alarms and reports.
11. All Services provided by the County under this Contract will be performed in accordance
with all applicable County, State and Federal permits and regulations, all applicable State
and Federal laws and all applicable City ordinances.
12. The County shall establish, provide and implement sewer system operation and
maintenance related programs, studies, reports, testing, sampling, inspections and
surveys in accordance with City, State, and Federal mandates..
13. The County will, replace or repair existing components of the System which are identified
by the County or City to be in need of repair or replacement Upon completion of such
repairs and replacements, if the System has been altered in any material way the County
will provide to the City as-builts and update the GIS infrastructure mapping and database.
Unless otherwise agreed in writing by the Parties, the County's obligation to repair or
replace shall be limited to the fund balance contained in the System Enterprise Fund.
14. The County will maintain, and update as necessary, GIS infrastructure mapping and
database of the System. The County will also provide City hard and digital copies of the
mapping, and updates as requested, in a manner compatible with City's GIS system, and
will provide interconnectivity between the City and County GIS systems when in place.
The County will update the GIS mapping and database of the System upon being
provided as-builts or other information from the City identifying corrections and/or
modifications of the System and upon the County performing Services that result in
modifications of the System. The City is responsible for providing accurate "as-built"
information.
14. MISS DIG. The County will conduct MISS DIG operations, in accordance with Public Act
53 of the Public Acts of 1974, as amended, (MCLA 460.701 et seq) on behalf of the City
as they pertain to the operations and maintenance of the Sewer System.
15. PA 222 Notification. In the event that either the City or the County receives notice from a
user of the Sewer System of a possible claim and such notice is governed by the
provisions of Act 222 of 2002, then the party receiving the notice agrees to: (i) provide
the potential claimant with the information required by Act 222, (ii) notify the other party to
this Agreement of the potential claim, and (iii) fully comply with the requirements of Act
222.
16. In the event System repairs or replacement is deemed attributable to outside parties, (i.e.
Contractor damage or customer negligence), consistent with applicable City ordinances,
the WRC will bill the responsible party at the City's direction, if any, or the entire bill is
deemed uncollectible, the uncollected amount will be charged directly to the System
Enterprise Fund.
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Exhibit C
OVERHEAD EXPENSES
WRC Overhead charges are expenses not included in the direct hourly system labor and
equipment costs. Overhead is allocated to all the systems that WRC services. Overhead expense
includes, but is not limited to:
Billing Services Unit
Labor, equipment, payment processing, bill preparation, postage and other related costs
necessary to provide customer service for the communities WRC operates and maintains.
Safety Program
Labor, equipment and training needed to meet or exceed all required safety standards.
Training
Training and certification costs for field and engineering staff required to keep them up-to-date on
industry standards and innovations.
VVRC Administration
Labor, equipment and training required to oversee the daily VVRC operations. This includes
Permitting, Mapping, GIS, Asset Management and Miss Dig.
Building Maintenance
Labor, equipment, insurance, utilities, supplies and other related costs needed to operate and
maintain the various WRC buildings (includes Water Maintenance, Pump Maintenance, Billing
Services and Public Works buildings).
Miscellaneous Supplies
Supplies which are not inventoried and not purchased for a specific system are allocated to the
benefiting systems. This category includes uniforms, gloves, boots and repair parts.
Oakland County Support
Various Oakland County departments support the staff and work performed at WRC. These
departments include Human Resources, Purchasing, Info Tech and Fiscal Services. The portion
of their costs which is charged to WRC is then allocated to the funds operated by this division.
Form DC-001
OAKLAND COUNTY
WATER RESOURCES COMMISSIONER MEMORANDUM
TO:
FROM:
SUBJECT:
DATE:
Commissioner Philip J. Weipert, Chairperson
Planning and Building Committee, Board of Commissioners
Kelsey Cooke, Drainage District Legal Counsel
City of Novi Sanitary Sewer System Operation and Maintenance Contract
October 30, 2018
In June 2017, the office of the Water Resources Commissioner and Oakland County Corporation
Counsel began a joint review of existing water and sewer system operations and maintenance
contracts between Oakland County and local cities, villages and townships. WRC is the county agent
for these contracts. Many of the contracts were found to be outdated, insufficient or incomplete.
Upon review of the contracts, they were prioritized and WRC began discussions with the communities
based on the prioritized list. The City of Novi is a top priority for a new sewer system operation and
maintenance contract. At a meeting of the Novi City Council on October 8, 2018, the sewer system
operation and maintenance contract was approved and executed by the City.
The City is considering joining the County's general liability and public official's liability insurance
policies as a named insured by paying an allocated annual premium. This coverage protects the
County and also the City for claims of bodily injury or property damage resulting from the operation of
the City's water system.
The terms of the contract include the authorization for the County to operate and maintain the water
system on behalf of the City on a non-profit basis and in accordance with a scope of services to be
performed by the WRC, set forth as an exhibit to the contract. Terms regarding general liability and
professional liability insurance coverage are also included in the contract language, along with setting
rates and charges, and the fact that all expenses of the systems are billed as a system cost'to the
enterprise fund held by the County for the benefit of the City. Furthermore, the operations of the
systems will be compensated from the revenue from the City's system. The term of the contract is for
ten years with a ten year renewal option and a termination notice of 180 days for any reason.
Requested Committee Action: Recommend adoption of the attached Resolution to the Board of
Commissioners.
Contact: Kelsey Cooke cookek@oakgov.com 248-452-2013
OAKLAND COUNTY WATER RESOURCES COMMISSIONER
Page 1 of 1 Rev.: 11/05108
Resolution #18393 November 14, 2018
The Chairperson referred the resolution to the Finance Committee. There were no objections.
FISCAL NOTE (MISC. #18393) December 6, 2018
BY: Commissioner Thomas Middleton, Chairperson, Finance Committee
IN RE: WATER RESOURCES COMMISSIONER — CITY OF NOVI SANITARY SEWER SYSTEM
OPERATION AND MAINTENANCE AGREEMENT
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. Resolution approves an Agreement between Oakland County and the City of Novi for the
operation and maintenance of the city's sanitary sewer system.
2. The Water Resources Commissioner is currently providing operation and maintenance
services and has sufficient staffing with the necessary knowledge to assist the city with
the requested services provided under the Agreement.
3. The County's cost and overhead incurred for the services performed shall be
compensated from the revenues of the sanitary sewer system.
4. The County will assist the city in the operations and maintenance of the sanitary sewer
system on a non-profit basis. The County and its General Fund will not be charged with
or be liable for the cost of operating, maintaining, repairing, replacing, or administering
the sanitary sewer system.
5. The Agreement shall be effective for an initial term of ten (10) years and automatically
extended an additional ten years, unless the County and the City agree in writing to
terminate the Agreement. A minimum of One Hundred and Eighty (180) calendar day's
written notice may terminate the Agreement without any penalty.
6. No budget amendment is required and no General Fund appropriation is required.
/ kJ, /NA_Liks
Commissioner Thomas Middleton, District #4
Chairperson, Finance Committee
FINANCE COMMITTEE VOTE:
Motion carried unanimously on a roll call vote with Kowall absent.
Resolution #18393 December 6, 2018
Moved by Kochenderfer supported by Bowman the resolutions (with fiscal notes attached) on the amended
Consent Agenda be adopted (with accompanying reports being accepted).
AYES: Crawford, Gershenson, Gingen, Hoffman, Jackson, Kochenderfer, Kowafl, McGillivray,
Middleton, Quarles, Spisz, Taub, Tietz, Weipert, Woodward, Zack, Berman, Bowman. (18)
NAYS: None. (0)
A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the amended
Consent Agenda were adopted (with accompanying reports being accepted).
HEREBY APPROVE THIS RESOLUTION
CHIEF DEPUTY COUNTY EXECUTIVE
ACTING PURSUANT TO MCL 45.559A (7)
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, Lisa Brown, 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 December 6,
2018, 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 6th day of December, 2018.
fr-4. -151z074=1--
Lisa Brown, Oakland County