PRESIDING OFPRESIDING OFFICER:              MAYOR PRO-TEM SUSAN J. OSIKA

OPENING PRAYER:                 REV. KENNETH HERBRUCK
                                                OWOSSO ASSEMBLY OF GOD 

PLEDGE OF ALLEGIANCE:      DAYNA COMPEAU 

PRESENT:                               Mayor Pro-Tem Susan J. Osika, Councilpersons Joane E. Ford, Justin R. Horvath, Mark D. Owen, and Linda L. Robertson.

ABSENT:                                  Mayor John C.M. Davis and Councilperson Charles J. Sumrack.

APPROVE AGENDA

Motion by Councilperson Robertson to approve the Agenda as presented with the deletion of Proclamation recognizing National Family Caregivers Month in November.

Motion supported by Councilperson Owen and concurred in by unanimous vote.

*The proclamation will be presented to the City Council in October.

APPROVE MINUTES OF JULY 18, 2005 MEETING

Motion by Councilperson Ford to approve the minutes of the July 18, 2005 Regular City Council Meeting as presented.  Motion supported by Councilperson Robertson and concurred in by unanimous vote.

Mayor Pro-Tem Osika read the Rules for Addressing the City Council.

PROCLAMATIONS

Proclamation– Stepfamily Day

Motion by Councilperson Robertson to accept proclamation of the Mayor’s Office declaring September 16, 2005 as “Stepfamily” Day in the City of Owosso as follows:

A PROCLAMATION
OF THE MAYOR’S OFFICE OF THE CITY OF OWOSSO, MICHIGAN
DESIGNATING SEPTEMBER 16, 2005 AS
STEPFAMILY DAY IN THE CITY OF OWOSSO

WHEREAS, in the City of Owosso, Stepfamily Day is enhanced by our strong commitment to support the stepfamilies of our nation in their mission to raise their children, to create strong family structures to support individual members of the family, and to instill in them a sense of responsibility to all extended family members; and

WHEREAS, approximately half of all Americans are currently involved in some form of stepfamily relationship and it is the vision of the Stepfamily Association of America that all stepfamilies in the United States be accepted, supported and successful; and

WHEREAS, the City of Owosso, and our nation has been blessed by thousands upon thousands of loving stepparents and stepchildren who are daily reminders of the joy, trials, and triumphs of the stepfamily experience and of the boundless love contained in the bond between all types of parents and children; and

WHEREAS, Stepfamily Day is a day to celebrate the many invaluable contributions stepfamilies have made to enriching the lives and life experience of the children and parents of America and to strengthening the fabric of American families and society.

NOW, THEREFORE, I, John C.M. Davis, Mayor of the City of Owosso, Michigan, do hereby proclaim September 16, 2005 as STEPFAMILY DAY in the City of Owosso, Michigan, and urge all citizens to join in this joyous celebration of family.

Motion supported by Councilperson Ford and concurred in by unanimous vote.

CITIZEN COMMENTS

Girard Dion, 821 South Washington Street, commented regarding lack of water service to the Townships and proposed water rates.

Betty Coon, 1204 Palmer Street, commented regarding a water rate increase and asked for consideration of those citizens on fixed income.  She also expressed her dissatisfaction with the new driveway for the parking lot at Baker College.  Mrs. Coon distributed copies of City Code to the Council.

Burton Fox, 216 East Oliver Street, asked three questions: 1) is the vacant lot (old hotel site) turning into a parking lot; 2) who uses the leased cars; and 3) would it be more economical to pay mileage than to lease cars.

Councilperson Owen inquired about Mrs. Coon’s comments.  City Manager Guetschow responded that the drive opening was angled more sharply than plans called for.  Mr. Guetschow also commented the issue is between Mrs. Coon and the College.  There was further Council discussion.

Councilperson Owen inquired about the appointment of an alternate to the SATA Reorganization Committee.  There was Council discussion regarding the responsibilities.  Councilperson Robertson volunteered.

BOARD/COMMISSION APPOINTMENT-SATA REORGANIZATION COMMITTEE

Motion by Councilperson Robertson to approve the appointment of Councilperson Robertson as the alternate to the SATA Reorganization Committee.

Motion supported by Councilperson Owen and concurred in by unanimous vote.

There was further Council discussion regarding the use of the vacant lot (old hotel site) and possible solutions to control unauthorized parking.

City Manager Guetschow responded to Mr. Fox’s questions regarding the lease vehicles.

CONSENT AGENDA

Motion by Councilperson Ford to approve the Consent Agenda as follows:

Set Public Hearing.  Set a public hearing for August 15, 2005 to receive citizen comment regarding clean-up of the Vaungarde site at 1000 Bradley Street (as it relates to clean of debris from the April fire).

Contract Payment.  Authorized Progress Payment No. 1 to L & L Construction Company in the amount of $90,452.12 for work completed through July 25, 2005 on the 2005 Street Program.

Motion supported by Councilperson Robertson.

Roll Call Vote.

AYES:              Councilpersons Ford, Horvath, Owen, Robertson, and Mayor Pro-Tem Osika.

NAYS:              None.

ABSENT:          Mayor Davis and Councilperson Sumrack.

ITEMS OF BUSINESS

PASSENGER VEHICLE LEASE RESOLUTION

Motion by Councilperson Robertson to adopt the following resolution for passenger vehicle leases authorizing the leases and further authorizing the City Manager, Finance Director and/or City Clerk to sign appropriate documents (Original bid award authorized at the meeting of July 18, 2005.) :

RESOLUTION

RESOLVED, that the City of Owosso has entered or will enter into one or more commercial, lease and/or retail installment sale finance agreements with a licensed motor vehicle dealer who, in turn, intends to assign them to General Motors Acceptance Corporation (“GMAC”) whereby the City of Owosso will receive credit and/or lease agreements in connections with the purchase and/or lease of motor vehicles (the “Credit Documents”);

RESOLVED, that, in accordance with these Credit Documents, the City of Owosso may grant GMAC a security interest in certain now-owned or hereafter-acquired property of the City of Owosso and any and all proceeds thereof and that the City of Owosso may assume certain credit and/or lease obligations to GMAC in connection with the credit extensions provided by GMAC and that these and other actions taken by the City of Owosso in connection with the Credit Documents do not violation any City convents under its Charter or otherwise;

RESOLVED, that unless the name of one or more persons is indicated on the blank line at the end of this paragraph, any director, officer or manager of the City of Owosso is authorized and empowered to sign the Credit Documents and any and all documents necessary or required by GMAC in connection with the Credit Documents, and from time to time to perform all such other acts and things deemed by him/her necessary, convenient, or proper to carry out, modify or supplement in the Credit Documents or any other such agreements and arrangements made with GMAC in connection with them.   Richard C. Williams, Finance Director; Gregg G. Guetschow, City Manager; and/or Gail L. Schultz, City Clerk.

Motion supported by Councilperson Ford.

Roll Call Vote.

AYES:              Councilpersons Owen, Robertson, Ford, Horvath and Mayor Pro-Tem Osika.

NAYS:              None.

ABSENT:          Mayor Davis and Councilperson Sumrack.

Councilperson Owen asked for a review of the most economical method-leasing or paying mileage.

DEED OF EASEMENT

Motion by Councilperson Robertson to approve the following Deed of Easement to Owosso Limited Dividend Housing Association, L.P. for the Kona Villa gazebo encroachment onto Collamer Park:

DEED OF EASEMENT

            THIS DEED OF EASEMENT is made the ____ day of ___________ , 2005, between the CITY OF OWOSSO, a Michigan municipal corporation, of 301 West Main Street, Owosso, Michigan 48867, as Grantor and OWOSSO LIMITED DIVIDEND HOUSING ASSOCIATION, L.P., 108 South University, Mt. Pleasant, Michigan 48868, as Grantee.

            WHEREAS, the Grantee owns a certain parcel of real estate and a portion of the gazebo on said parcel protrudes into a portion of Collamer Park owned by Grantor, as shown on the attached Exhibit A.

            NOW THIS DEED WITNESSETH that the Grantor hereby grants unto the Grantee, its heirs and assigns, an easement for the purpose of allowing the gazebo to remain on Collamer Park to the extent of 5.25 feet as described in the attached Exhibit A.

            This easement shall terminate when the gazebo is removed and the use discontinued or over fifty (50%) percent of its value is destroyed.  Upon termination of this Easement, Grantee shall return the premises to a clean and level condition.  Any new reconstruction of the gazebo on the premises shall comply with all zoning ordinances including set back requirements.

            Grantee shall indemnify, hold harmless and defend Grantor from any claims arising from the use of the premises and this Deed of Easement.

            IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written.

Motion supported by Councilperson Horvath.

Roll Call Vote.

AYES:              Councilpersons Robertson, Horvath, Ford, Owen, and Mayor Pro-Tem Osika.

NAYS:              None.

ABSENT:          Mayor Davis and Councilperson Sumrack.

*NOTE:  The Deed of Easement and attachments are on file in the City Clerk’s Office.

SANITARY SEWER COMPLIANCE SCHEDULE

Gary Burk, Utilities Director, addressed the City Council regarding the proposed Administrative Consent Order.  There was general Council discussion.

Mr. Burk reported that the City is requesting a variance in the compliance date under paragraph 3.4 from January 1, 2007 to March 1, 2007 for better consistency with other reporting dates.

Motion by Councilperson Robertson to approve the latest draft Administrative Consent Order between the City and the Michigan Department of Environmental Quality to establish a compliance schedule for the City's Sanitary Sewer Overflow Correction Program as follows:

STATE OF MICHIGAN
DEPARTMENT OF ENVIRONMENTAL QUALITY
WATER BUREAU

In the matter of:                                                                             ACO-SW05-015

Gregg C. Guetschow, City Manager                                                Date Entered: ____________

City of Owosso
301 West Main Street
Owosso, Michigan 48867

ADMINISTRATIVE CONSENT ORDER

This document results from allegations by the Water Bureau (WB) of the Department of Environmental Quality (DEQ). The DEQ alleges the City of Owosso (City), which owns and operates the Owosso/Mid-Shiawassee Co. Wastewater Treatment Plant located at 1410 Chippewa Trail, Owosso, Shiawassee County, Michigan, is in violation of Part 31, Water Resources Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA) MCL 324.3101 et seq. The City and the DEQ agree to resolve the violations set forth in the Findings section of this Administrative Consent Order (Consent Order) and to resolve this matter by entry of this Consent Order.

I. STIPULATIONS

The City and the DEQ stipulate as follows:

1.1       The NREPA MCL 324.101 et seq. is an act that controls pollution to protect the environment and natural resources in the state.

1.2       Pollution Control, Part 31, Water Resources Protection, of the NREPA (Part 31), MCL 324.3101 et seq., and the rules promulgated pursuant thereto, provides for the protection, conservation, and the control of pollution of the water resources of the state.

1.3       The DEQ is authorized by Section 3112(2) of Part 31 of the NREPA to enter orders requiring persons to abate pollution, and the director of the DEQ or his designee is delegated under Section 301(b) of the NREPA, MCL 324.301(b) to enter into this Consent Order with the City.

1.4       The City stipulates to the issuance and entry of this Consent Order to comply by consent and stipulates that the termination of this matter by a final order to be entered as a Consent Order is proper and acceptable. The City further agrees not to contest the issuance of this Consent Order. This Consent Order, thus, shall be considered a final order of the DEQ and shall become effective on the date it is signed by the Chief of the WB, delegee of the director, pursuant to Section 301(b) of the NREPA.

1.5       The City and the DEQ agree that the signing of this Consent Order is for settlement purposes only and does not constitute an admission by the City that the law has been violated.

1.6       The city manager as signatory to this Consent Order on behalf of the City agrees and attests that he is fully authorized to assure the compliance of the City with all requirements under this Consent Order.

1.7       The City shall achieve compliance with the aforementioned regulations in accordance with

           the requirements contained in Section Ill, Compliance Program, of this Consent Order.

II. FINDINGS

2.1       Section 3109(2) of Part 31 of the NREPA states: “The discharge of any raw sewage of human origin, directly or indirectly, into any of the waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated…”

2.2       Section 3109(4) of Part 31 of the NREPA states: A violation of this section is prima fade evidence of the existence of a public nuisance and in addition to the remedies provided for in this part may be abated according to law in an action brought by the attorney general in a court of competent jurisdiction.”

2.3       The City is authorized to discharge treated municipal wastewaters from the Owosso/Mid­-Shiawassee County wastewater treatment plant (WWTP) to the Shiawassee River in accordance with the effluent limitations and monitoring requirements and other conditions as set forth in its National Pollutant Discharge Elimination System (NPDES) Permit number Ml0023752 issued April 20, 2004 and expiring October 1, 2006.

2.4       The City of Corunna, Owosso Township, and Caledonia Township are all tributary to the City’s WWTP, but each municipality maintains its own collection system.

2.5       The WWTP has a rated maximum capacity of 12 million gallons/day (MGD). The NPDES permit is based on a design flow rate of 6 MGD. During wet weather conditions, the WWTP has received in excess of 14 MGD. During some storm events, the inflow and infiltration (I/I) into the plant is greater than can be processed by all treatment systems at the WWTP.

2.6       The City has experienced numerous sanitary sewer overflows (SSOs) in the recent past that discharged into surface waters of the state. The chart below lists the SSO events:  

*Approximate overflow volume

 III. COMPLIANCE PROGRAM

IT IS THEREFORE AGREED AND ORDERED THAT the City will take the following actions to prevent further violations of Part 31:

3.1       The City agrees to submit to the DEQ for review and approval an initial work plan based on the existing assessment of the sewer collection system that has priority areas to be remediated identified on it within 30 days of entry into this Consent Order, to the address located in paragraph 3.8 of this Consent Order. The City agrees to submit to the DEQ for review and approval a final work plan within 30 days after receiving approval of the plan from the DEQ addressing the planned remediation of illicit public sector Inflow and Infiltration (I/I) and other major areas of public sector I/I that are upstream of the areas in the City experiencing sanitary sewer overflows (SSO’s). The City agrees to submit a summary report annually, due on March 1, with the first one due on March 1, 2006 and the last one due the year after all of the planned illicit I/I and other major I/I removal efforts has been completed, in accordance with the City’s final approved work plan. The annual summary report shall consist of the most recent assessment of the sewer collection system. The annual assessment of the sewer collection system shall include the results of the City conducting television inspections of all sewer lines in the priority subbasins, all manhole inspections in the collection system, and smoke testing of the lines; any new information that the assessments of the sewer system identify; a summary of the investigation, assessment and remediation activities completed in the previous calendar year, and the work that is left to be completed in the complete identification and removal of illicit I/I and other major public sector I/I connections to the City’s sewer collection system. The City agrees that the complete assessment of the sewer collection system and the illicit I/I and other major public sector Ill separation efforts will last no longer than five years, beginning with the date that the DEQ approves the final work plan.

3.2       The City agrees to conduct a private sector inspection program in year I and 2 of the five year work plan in paragraph 3.1 of this Consent Order to quantify the number and location of illicit private sector connections to the sewer collection system. When existing sump pump and roof drains connecting to the sanitary sewer are located, the City will immediately initiate an enforcement process beginning with a certified letter from the City to the homeowner in accordance with the City’s rules and regulations pursuant to Article IV, Sewer Service, Section 34-101 to Section 34-245 of Chapter 34, Utilities and Services, of the City Code of Ordinances for the City of Owosso. This enforcement process will be initiated with the goal of removing the existing sump pumps and roof drains from the City’s sewerage system. A pilot program conducted during year 1 and 2 for the removal of gravity footing drains will also be conducted in order to better define the private sector I/I contribution in the overall sewer model and the actual cost of corrective actions.

3.3       The City agrees to conduct flow monitoring and report the results of the monitoring in its annual report due by no later than March 1 of 2006 and 2007, to the DEQ, Water Bureau, Lansing District Office and as required by paragraph 3.1 of this Consent Order. The City agrees to conduct flow monitoring on the southwest quadrant of the City’s sewer collection system and complete it in 2005 and to conduct and complete the flow monitoring for the southeast quadrant in 2006.

3.4       The City agrees that by January 1, 2007, the City will submit a work plan for review and approval that will list a schedule with dates, beginning in 2007, not to exceed ten years for an efficient and appropriate control strategy to reduce or contain I/I from private sector sources and that is equivalent to the remedial design standard of the 25-year/24-hourstorm, using growth conditions and normal soil moisture and in accordance with the DEQ Sanitary Sewer Overflow Policy of December 27, 2002

            Some initial options include:

                     1.     I/I reduction including gravity footing drain separation, or

                     2.     Public sector I/I reduction; private sector inflow reduction without gravity footing drain removal, and retention of flow which exceeds system capacity through the use of satellite retention basins or a single basin, or

                     3.     A combination of gravity footing drain separation, retention, and storage.

3.5       If the City and the DEQ determine that retention and related facilities are needed based on the results of the flow monitoring conducted in 2005 and 2006, the City will submit a work plan for review and approval describing necessary size, planned location(s), design, and financing by June 1, 2007. Construction of these facilities shall be completed by December 1, 2010. If the City and the DEQ determine that a combination of gravity footing drain separation, retention, and storage is needed, the work plan for review and approval describing necessary size, planned location(s), design, and financing of the gravity footing drain separation, retention and storage shall be submitted by June 1, 2007. The construction of the retention and storage shall be completed by December 1, 2010 and the gravity footing drain separation shall be completed no later than June 1, 2017.

3.6    The City agrees to submit annual performance reviews to the DEQ Lansing District Office of the operation of the City’s sewerage system, including an analysis of the effectiveness of the work completed, pursuant to this Consent Order, in eliminating illicit public and private connections to the sewerage system, thereby reducing the I/l to the sewerage system. The City shall include its first five years of annual performance reviews with its summary report due annually on March 1, in accordance with paragraph 3.1 of this Consent Order. The City shall continue to submit annual performance reviews on March 1 until this Consent Order is terminated in accordance with Section XII of this Consent Order.

3.7     The City agrees to create and pass Rules and Regulations pursuant to its authority of Section 34-203 of Ordinance No 433 of 1985, entitled Rules and Regulations” of the City Code of Ordinances for the City of Owosso. The City shall submit these Rules and Regulations to the DEQ for review and approval within 30 days of entry of this Consent Order. The Rules and Regulations shall be created to ban the construction and connection of potential public and private I/I sources to the City’s sewerage system that are not strictly approved by the City and other applicable local, state or federal permitting authorities, including, but not limited to footing drains, rooftop drains and sump pumps; the Rules and Regulations shall list policies and standards for the elimination of existing illicit I/l sources; and the Rules and Regulations shall list an enforcement procedure that the City shall undertake if new illicit connections are discovered.

3.8     The City shall submit all reports, work plans, specifications, schedules, or any other writing required by this section to the Lansing District Supervisor, DEQ-WB-Lansing District, P.O. Box 30242, 4th Floor, North Tower, Lansing, Michigan, 48909. Alternatively, mailings requiring a street address may be sent to the Lansing District Supervisor at DEQ-WB-Lansing District, Constitution Hall, 525 W. Allegan, 4th Floor, North Tower, Lansing, Michigan, 48933. The cover letter with each submittal shall identify the specific paragraph and requirement of this Consent Order that the submittal is intended to satisfy.

IV. DEQ APPROVAL OF SUBMITTALS

4.1       For any work plan, proposal, or other document, excluding applications for permits or licenses, that are required by this Consent Order to be submitted to the DEQ by the City, the following process and terms of approval shall apply.

4.2       All work plans, proposals, and other documents required to be submitted by this Consent Order shall include all of the information required by the applicable statute and/or rule, and all of the information required by the applicable paragraph(s) of this Consent Order.

4.3       In the event the DEQ disapproves a work plan, proposal, or other document, it will notify the City, in writing, specifying the reasons for such disapproval. The City shall submit, within 30 days of receipt of such disapproval, a revised work plan, proposal, or other document which adequately addresses the reasons for the DEQ’s disapproval.  If the revised work plan, proposal, or other document is still not acceptable to the DEQ, the DEQ will notify the City of this disapproval.

4.4       In the event the DEQ approves with specific modifications, a work plan, proposal, or other document, it will notify the City, in writing, specifying the modifications required to be made to such work plan, proposal, or other document prior to its implementation and the specific reasons for such modifications. The DEQ may require the City to submit, prior to implementation and within 30 days of receipt of such approval with specific modifications, a revised work plan, proposal, or other document which adequately addresses such modifications. If the revised work plan, proposal, or other document is still not acceptable to the DEQ, the DEQ will notify the City of this disapproval.

4.5       Upon DEQ approval, or approval with modifications, of a work plan, proposal, or other document, such work plan, proposal, or other document shall be incorporated by reference into this Consent Order and shall be enforceable in accordance with the provisions of this Consent Order.

4.6       Failure by the City to submit an approvable work plan, proposal, or other document, within the applicable time periods specified above, constitutes a violation of this Consent Order and shall subject the City to the enforcement provisions of this Consent Order, including the stipulated penalty provisions specified in paragraph 9.3.

4.7       Any delays caused by the City’s failure to submit an approvable work plan, proposal, or other document when due shall in no way affect or alter the City’s responsibility to comply with any other deadline(s) specified in this Consent Order.

4.8       No informal advice, guidance, suggestions, or comments by the DEQ regarding reports, work plans, plans, specifications, schedules or any other writing submitted by the City will be construed as relieving the City of its obligation to obtain written approval, if and when required by this Consent Order.

V. EXTENSIONS

5.1     The City and the DEQ agree that the DEQ may grant the City a reasonable extension of the specified deadlines set forth in this Consent Order. Any extension shall be preceded by a written request in duplicate to the DEQ, WB, Enforcement Unit Chief, Constitution Hall, 525 W. Allegan, P.O. Box 30273, Lansing, Michigan, 48909-7773, and the Lansing District Supervisor at the address in paragraph 3.8, no later than ten business days prior to the pertinent deadline, and shall include:

                  a.   Identification of the specific deadline(s) of this Consent Order that will not be met.

                  b.   A detailed description of the circumstances that will prevent the City from meeting the deadline(s).

                  c.   A description of the measures the City has taken and/or intends to take to meet the required deadline; and

                  d.   The length of the extension requested and the specific date on which the obligation will be met.

The Lansing District Supervisor, in consultation with the Enforcement Unit Chief, shall respond in writing to such requests. No change or modification to this Consent Order shall be valid unless in writing from the DEQ, and if applicable, signed by both parties.

VI. REPORTING

6.1     The City shall verbally report any violation(s) of the terms and conditions of this Consent Order to the Lansing District Supervisor by no later than the close of the next business day following detection of such violation(s) and shall follow such notification with a written report within five business days following detection of such violation(s). The written report shall include a detailed description of the violation(s), as well as a description of any actions proposed or taken to correct the violation(s). The City shall report any anticipated violation(s) of this Consent Order to the above-referenced individual in advance of the relevant deadlines whenever possible.      

VII. RETENTION OF RECORDS

7.1     Upon request by an authorized representative of the DEQ, the City shall make available to the DEQ all records, plans, logs, and other documents required to be maintained under this Consent Order or pursuant to Part 31 or its rules. All such documents shall be retained by the City for at least a period of three years from the date of generation of the record unless a longer period of record retention is required by Part 31 or its rules.

VIII. RIGHT OF ENTRY

8.1       The City shall allow any authorized representative or contractor of the DEQ, upon presentation of proper credentials, to enter upon the premises of the facility at all reasonable times for the purpose of monitoring compliance with the provisions of this Consent Order. This paragraph in no way limits the authority of the DEQ to conduct tests and inspections pursuant to the NREPA and the rules promulgated thereunder, or any other applicable statutory provision.

IX. PENALTIES

9.1       The City agrees to pay to the State of Michigan $2,500 as partial compensation for the cost of investigations and enforcement activities arising from the violations specified in Section II of this Consent Order. Payment shall be made within 30 days of the effective date of this Consent Order in accordance with paragraph 9.6.

9.2       The City agrees to pay a civil fine of $20,000 for the violations specified in Section II of this Consent Order. Payment shall be made within 30 days of the effective date of this Consent Order in accordance with paragraph 9.6.

9.3       For each failure to comply with the provisions of Section III and IV of this Consent Order, the City shall pay stipulated penalties of $500 per violation per day for 1 to 7 days of violation, $1000 per violation per day for 8 to 14 days of violation, and $1500 per violation per day for each day of violation thereafter. Failure to perform any of the following requirements shall be considered separate violations of this Consent Order and are subject to stipulated penalties under this paragraph:

a.   Failure to submit an approvable work plan, proposal, or other document by the required dates in accordance with Section Ill.

b.   Failure to implement, complete or comply with any activity or condition required by Section III, including those contained in any approved work plan or other document required to be implemented and completed by Section Ill; and

c.   Failure to submit approvable revised work plans, proposals, or other documents addressing a DEQ disapproval or approval with modifications by the required dates in accordance with paragraphs 4.3 or 4.4.

9.4       For each failure to comply with any other provision of this Consent Order not specified in paragraph 9.3, the City shall pay stipulated penalties of $500 per violation per day for each day of violation. Failure to perform any of the following requirements shall be considered separate violations of this Consent Order and are subject to stipulated penalties under this paragraph:

           a.    Failure to verbally report violations and submit written reports by the required dates in accordance with paragraph 6.1.

           b.    Failure to retain records on site in accordance with paragraph 7.1.

           c.    Failure to pay civil fines, costs, or stipulated or interest penalties by the required dates in accordance with this section; and

            d.   Any other requirement of this Consent Order.

9.5       Stipulated penalties accruing under paragraphs 9.3 or 9.4 shall be paid within 30 days after written demand by the DEQ in accordance with paragraph 9.6.

9.6       The City agrees to pay all funds due pursuant to this agreement by check made payable to the State of Michigan and delivered to the DEQ, Revenue Control Unit, P 0 Box 30657, 525 West Allegan Street, 5th Floor, South Tower, Lansing, Michigan, 48909-8157 To ensure proper credit, all payments made pursuant to this Consent Order must include the Payment Identification Number WTR3034.

9.7       The City agrees not to contest the legality of the civil fine or costs paid pursuant to paragraphs 9.1, and 9.2, above. The City further agrees not to contest the legality of any stipulated penalties or interest penalties assessed pursuant to paragraphs 9.3, 9.4 and 9.5, above, but reserves the right to dispute the factual basis upon which a demand by the DEQ for stipulated penalties or interest penalties is made.

X. DISPUTE RESOLUTION

10.1     Unless otherwise provided in this Consent Order, the dispute resolution procedures of this section shall be the City’s exclusive mechanism to resolve disputes arising under or with respect to this Consent Order. However, the procedures set forth in this section shall not apply to actions by the state to enforce obligations of the City under this Consent Order. Initiation of dispute resolution shall not be cause for the City to delay the performance of any compliance requirements or response activity.

10.2     Any dispute by the City that arises under this Consent Order shall in the first instance be the subject of informal negotiations between the City and the DEQ (parties). The period of negotiations shall not exceed 20 days from the date of written notice by the City to the DEQ that a dispute has arisen, unless the time period for negotiations is modified by written agreement between the parties. A dispute under this section shall occur when the City sends the DEQ a written notice of dispute. If agreement cannot be reached on any issue within this 20-day period, the DEQ shall provide a written statement of its decision to the City and, in the absence of initiation of formal dispute resolution by the City under paragraph 10.3, the DEQ’s position as outlined in its written informal decision, shall be binding on the parties.

10.3     If the City and the DEQ cannot informally resolve a dispute under paragraph 102, the City may initiate formal dispute resolution by requesting review of the disputed issues by the DEQ, WB Chief. This written request must be filed with the DEQ, WB Chief within 15 days of the City’s receipt of the DEQ’s informal decision that is issued at the conclusion of the informal dispute resolution procedure set forth in paragraph 10.2. The City’s request shall state the issues in dispute; the relevant facts upon which the dispute is based; any factual data, analysis, or opinion supporting its position; and all supporting documentation upon which the City bases its position. Within 21 days of the WB Chief’s receipt of the City’s request for a review of disputed issues, the WB Chief will provide a written statement of decision to the City, which will include a statement of his/her understanding of the issues in dispute; the relevant facts upon which the dispute is based; any factual data, analysis, or opinion supporting her/his position; and all supporting documentation relied upon by the WB Chief in review of the disputed issues. The WB Chief’s time period for review of the disputed issues may be extended by written agreement of the parties.

10.4     The written statement of the WB Chief issued under paragraph 10.3 shall be a final decision and is binding on the parties unless, within 21 days under the Revised Judicature Act after receipt of the DEQ’s written statement of decision, the City files a petition for judicial review in a court of competent jurisdiction that shall set forth a description of the matter in dispute, the efforts made by the parties to resolve it, the relief requested, and the schedule, if any, within which the dispute must be resolved to ensure orderly implementation of this Consent Order.

10.5     An administrative record of the dispute shall be maintained by the DEQ. The administrative record shall include all of the information provided by the City pursuant to paragraph 10.3, as well as any other documents relied upon by the DEQ in making its final decision pursuant to paragraph 10.3. Where appropriate, the DEQ shall allow submission of supplemental statements of position by the parties to the dispute.

10.6     In documented form on any dispute, the City shall have the burden of demonstrating on the administrative record that the position of the DEQ is arbitrary and capricious or otherwise not in accordance with law. In documented form on any dispute initiated by the City, it shall bear the burden of persuasion on factual issues

10.7   Notwithstanding the invocation of dispute resolution procedures under this section, stipulated penalties shall accrue from the first day of any failure or refusal to comply with any term or condition of this Consent Order, but payment shall be stayed pending resolution of the dispute. Stipulated penalties shall be paid within 30 days after resolution of the dispute. The City shall pay that portion of a demand for payment of stipulated penalties that is not subject to dispute resolution procedures in accordance with and in the manner provided in Section IX (Penalties).

XI. FORCE MAJEURE

11.1     The City shall perform the requirements of this Consent Order within the time limits established herein, unless performance is prevented or delayed by events that constitute a “Force Majeure.” Any delay in the performance attributable to a “Force Majeure” shall not be deemed a violation of the City’s obligations under this Consent Order in accordance with this section.

11.2     For the purpose of this Consent Order, “Force Majeure” means an occurrence or nonoccurrence arising from causes not foreseeable, beyond the control of, and without the fault of the City, such as: an Act of Cod, untimely review of permit applications or submissions by the DEQ or other applicable authority, and acts or omissions of third parties that could not have been avoided or overcome by the City’s diligence and that delay the performance of an obligation under this Consent Order. “Force Majeure” does not include, among other things, unanticipated or increased costs, changed financial circumstances, or failure to obtain a permit or license as a result of the City’s actions or omissions.

11.3     The City shall notify the DEQ, by telephone, within 48 hours of discovering any event that causes a delay in its compliance with any provision of this Consent Order. Verbal notice shall be followed by written notice within ten calendar days and shall describe, in detail, the anticipated length of delay, the precise cause or causes of delay, the measures taken by the City to prevent or minimize the delay, and the timetable by which those measures shall be implemented. The City shall adopt all reasonable measures to avoid or minimize any such delay.

11.4     Failure of the City to comply with the notice requirements and time provisions under paragraph 11.3 shall render this Section Xl void and of no force and effect as to the particular incident involved. The DEQ may, at its sole discretion and in appropriate circumstances, waive in writing the notice requirements of paragraph 11.3, above.

11.5     If the parties agree that the delay or anticipated delay was beyond the control of the City, this may be so stipulated, and the parties to this Consent Order may agree upon an appropriate modification of this Consent Order, If the parties to this Consent Order are unable to reach such agreement, the dispute shall be resolved in accordance with Section X (Dispute Resolution) of this Consent Order. The burden of proving that any delay was beyond the reasonable control of the City, and that all the requirements of this Section Xl have been met by the City, rests with the City.

11.6     An extension of one compliance date based upon a particular incident does not necessarily mean that the City qualifies for an extension of a subsequent compliance date without providing proof regarding each incremental step or other requirement for which an extension is sought.

XII. GENERAL PROVISIONS

12.1      With respect to any violations not specifically addressed and resolved by this Consent Order, the DEQ reserves the right to pursue any other remedies to which it is entitled for any failure on the part of the City to comply with the requirements of the NREPA and its rules.

12.2      The DEQ and the City consent to enforcement of this Consent Order in the same manner and by the same procedures for all final orders entered pursuant to Part 31, MCL 324.3101 et seq.; and enforcement pursuant to Part 17, Michigan Environmental Protection Act, of the NREPA, MCL 324.1701 et seq.

12.3      This Consent Order in no way affects the City’s responsibility to comply with any other applicable state, federal, or local laws or regulations.

12.4      The WB, at its discretion, may seek stipulated fines or statutory fines for any violation of this Consent Order. However, the WB is precluded from seeking both a stipulated fine under this Consent Order and a statutory fine for the same violation.

12.5      Nothing in this Consent Order is or shall be considered to affect any liability the City may have for natural resource damages caused by the City’s ownership and/or operation of the facility. The State of Michigan does not waive any rights to bring an appropriate action to recover such damages to the natural resources.

12.6      In the event the City sells or transfers the facility, it shall advise any purchaser or transferee of the existence of this Consent Order in connection with such sale or transfer. Within 30 calendar days, the City shall also notify the WB Lansing District Supervisor, in writing, of such sale or transfer, the identity and address of any purchaser or transferee, and confirm the fact that notice of this Consent Order has been given to the purchaser and/or transferee. The purchaser and/or transferee of this Consent Order must agree, in writing, to assume all of the obligations of this Consent Order. A copy of that agreement shall be forwarded to the WB Lansing District Supervisor within 30 days of assuming the obligations of this Consent Order.

12.7      The provisions of this Consent Order shall apply to and be binding upon the parties to this action, and their successors and assigns.

12.8      This Consent Order constitutes a civil settlement and satisfaction as to the resolution of the violations specifically addressed herein; however, it does not resolve any criminal action that may result from these same violations.

XIII. TERMINATION

13.1   This Consent Order shall remain in full force and effect until terminated by a written Termination Notice (TN) issued by the DEQ. Prior to issuance of a written TN, the City shall submit a request consisting of a written certification that the City has fully complied with the requirements of this Consent Order and has made payment of any fines, including stipulated penalties, required in this Consent Order. Specifically, this certification shall include:

           a.    The date of compliance with each provision of the compliance program in Section Ill, and the date any fines or penalties were paid.

b.    A statement that all required information has been reported to the district supervisor; and

c.    Confirmation that all records required to be maintained pursuant to this Consent Order are being maintained at the facility.

The DEQ may also request additional relevant information. The DEQ shall not unreasonably withhold issuance of a TN.

Signatories

The undersigned CERTIFY they are fully authorized by the party they represent to enter into this Consent Order to comply by consent and to EXECUTE and LEGALLY BIND that party to it.

DEPARTMENT OF ENVIRONMENTAL QUALITY

Richard A. Powers, Chief
Water Bureau

CITY OF OWOSSO

By:     Gregg C. Guetschow, City Manager

APPROVED AS TO FORM:

By: Alan F. Hoffman, Assistant Attorney General

For:    Mark W. Matus
Assistant Attorney General in Charge
Environment, Natural Resources, and Agriculture Division
Michigan Department of Attorney General

Motion supported by Councilperson Ford.

Roll Call Vote.

AYES:              Councilpersons Ford, Horvath, Robertson, Owen, and Mayor Pro-Tem Osika.

NAYS:              None.

ABSENT:          Mayor Davis and Councilperson Sumrack.

TRAFFIC CONTROL ORDER NO. 1148

Motion by Councilperson Ford to authorize Traffic Control Order No. 1148 for two hour parking on the north side of Mason Street between Ball Street and Water Street.

Motion supported by Councilperson Robertson.

Roll Call Vote.

AYES:              Councilpersons Ford, Robertson, Horvath, Owen, and Mayor Pro-Tem Osika.

NAYS:              None.

ABSENT:          Mayor Davis and Councilperson Sumrack.      

COMMUNICATIONS

Lance McMorrow.  Letter regarding water bill inserts.

Shiawassee Area Transportation Agency.  Minutes of Meeting of May 10, 2005.

Shiawassee Area Transportation Agency.  Minutes of Meeting of June 14, 2005.

Shiawassee Area Transportation Agency.  Minutes of Meeting of July 12, 2005.

Owosso Historical Commission.  Minutes of Meeting of July 19, 2005.

Owosso Farmers Market.  Thank you for lot improvements.

CITIZEN COMMENTS

Girard Dion, 821 South Washington Street, commented further about water issue and sewer issues.

Mike Cline, 411 North Chipman Street, inquired “when will Broadway Avenue be paved?”

Betty Coon, 1204 Palmer Street, inquired again about MML convention costs for 2004 and 2005.  She also commented further about her concerns with the Baker College driveway.

Burton Fox, 216 East Oliver Street, asked when King Street between M-52 and Dewey Street will be done.  City Engineer Baker responded “first week in September”.

Mayor Pro-Tem Osika commented regarding the recent four City softball tournament and the City of Owosso winning.

ADJOURNMENT

Motion by Councilperson Ford for adjournment at 8:39 p.m., supported by Councilperson Owen and concurred in by unanimous vote.
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Susan J. Osika, Mayor Pro-Tem

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Gail L. Schultz, City Clerk