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HomeMy WebLinkAboutResolutions - 2010.12.09 - 10041MISCELLANEOUS RESOLUTION #10311 BY: Finance Committee, Toni Middleton, Chairperson IN RE: DEPARTMENT OF INFORMATION TECHNOLOGY — E-COMMERCE AGREEMENT WITH THE IDENTIFIED CITIES, TOWNSHIPS AND VILLAGES To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS, as provided by Public Act 462 of 1906, the Enhanced Access to Public Records Act, the Board of Commissioners in Miscellaneous Resolution #97166 dated August 14, 1997 adopted the Oakland County Enhanced Access to Public Records Policy: and WHEREAS the Oakland County Board of Commissioners approved a revised (gccess Oakland Master Fee Structure in Miscellaneous Resolution #03279 dated October 16, 2003 which included a pricing schedule for all Oakland County enhanced access products and services as part of the strategic rollout of a comprehensive eGovemment program; and WHEREAS the Oakland County Board of Commissioners approved a revised Access Oakland Master Fee Structure in Miscellaneous Resolution #07121 dated May 10. 2007 which expanded the Master Fee Structure to include an electronic check fee; and WHEREAS the Oakland County Department of Information Technology has implemented a system that affords those who wish to purchase products and services from Oakland County the convenience of using credit cards or electronic checks for the payment of such products and services to the County Treasurer; and WHEREAS by utilizing similar technology, the Department of Information Technology has developed an "E-Commerce" system which the Department can make available to all County Municipalities to afford persons the convenience of utilizing an Internet based, credit card or electronic check payment option to pay for Municipality products and services on the Municipality website or the County's Interactive Voice Response Unit: and WHEREAS the state law allows the County to provide such services in conjunction with a Municipality pursuant to an agreement between the County and the Municipality; and WHEREAS the Municipalities listed below expressed an interest in entering such an agreement with the County to use the County's "E-COMMERCE" services; and WHEREAS the Oakland County Board of Commissioners, in Miscellaneous Resolution #08134 dated July 31, 2008, approved entering into an .E-COMMERCE SERVICES AGREEMENT with the Municipalities listed on this resolution; and WHEREAS the County and the Municipalities listed went on to enter into such an E- cOMA LT; and WHEREAS the County and the Municipalities listed below now wish to replace the existing COMMERCE SERVICES with a new E-COMMERC.EaliVICES AGREEMENTthat would simplify and expedite the payment to the County of the Enhanced Access Fee paid by E- COMMERCE SERVICES customers. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves entering into the attached replacement E-COVNIFRCIF 8FRVICES AGREEMENT (the "Agreement," copy attached and incorporated herein) with each of the following Municipalities upon the terms and conditions stated in this Agreement: FINANCE COMMITTEE Motion carried unanimously on a roll call vote with Woodward absent. DECEMBER 9, 2010 City of Auburn Hills City of Bloomfield Hills City of Keego Harbor City of Orchard Lake Village City of Pleasant Ridge City of Rochester City of Royal Oak City of Southfield City of South Lyon City of Sylvan Lake City of Walled Lake Township of Groveland Charter Township of Highland Township of Holly Charter Township of Lyon Charter Township of Milford Charter Township of Oakland Charter Township of Orion Charter Township of Oxford Township of Southfield Charter Township of White Lake Village of Wolverine Lake Village of Oxford BE IT FURTHER RESOLVED that upon receipt of this executed Agreement from any of the above listed Municipalities, along with the appropriate certified resolution from the Municipak's governing body, and any other Municipality assurances and documentation required in the Agreement, the Oakland County Cleric shall obtain the Board of Commissioner's Chairperson signature on the Agreement, shall file a copy of this fully executed Agreement in the official Oakland County Board of Commissioner records maintained in his Office, and shall also forward a copy of this fully executed Agreement to the Secretary of State as required by law. Chairperson, on behalf of the Finance Committee, I move adoption of the foregoing resolution. FINANCE COMMITTEE i'74./14, E-COMMERCE SERVICES AGREEMENT This E-COM1v1ERCE SERVICES AGREEMENT, (hereafter, this "Contract") is made and entered into between the COUNTY OF OAKLAND, Michigan Constitutional and Municipal Corporation whose address is 1200 North Telegraph Road, Pontiac. Michigan 48341 (hereafter, the "County"), and the a Michigan Constitutional and Municipal Corporation, whose address is: , Michigan (hereafter, the Municioality"). In this Contract, either the County and/or the Municipality may also be referred to individually as a "Party" or jointly as "Parties." INTRODUCTORY STATEMENTS A. The County has developed an "E-Commerce" System that permits the use of credit cards and electronic checks, via the Internet, for payment of the charges for products and services. B. The Municipality has requested the County's Information Technology Department assistance in performing the "Information Technology Department Assistance Services" (hereafter "Services")(as desc'ibed and defined in this Contract) and has agreed ir return to reimburse the County as provided for in this Contract. C. The County has determined that it has sufficient "Information Technology Department Personnel,' as defined herein, possessing the requisite knowledge and expertise and is agreeable to assIsting the Municipality by providing the requested "Information Technology Department Assistance Services" under the terms and conditions of this Contract. D. The purpose of this Contract is to enable the Municipality to utilize the "E-Commerce" System, t'lat the County has developed, to assist the Municipality in the collection of fees for products and services via credit card and/or electronic check. NOW, THEREFORE, in consideration of these premises and the mutual promises. representations, and agreements set forth in this Contract, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the County and the Municipality mutually agree as follows: DEFINED TERMS in addition to the above defined terms (i.e., ''Contract", "County", "Municipality", "Party" and "Parties', and "State"), the Parties agree that the following words and expressions when printed with the first letter capitalized as shown herein, whether used in the singular or plural, possessive or nonpossessive, and/or either within or without quotation marks, shall, be defined and interpreted as follows: "County Agent" or' "County Agents" shall be defined as any and all Oakland County elected officials, appointed officials, directors, board members, council members, commissioners, authorities, other boards, committees, commissions, employees, managers, departments, divisions, volunteers, agents, representatives, and/or any such persons' successors or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in their personal representative or official capacities), and/or any persons acting by, through, under, or in concert with any of them, excluding the Municipality and/or any Municipality Agents, as defined herein. "County Agent" and/or "County 3 Agents" shall also include any person who was a County Agent anytime during the term of this Contract but, for any reason, is no longer employed, appointed, or elected and serving as a County Agent. 1.2 "Information Technology Department Personnel" as used in this Contract shall be defined as a specific subset of, and included as part of the larger group of County Agents as defined above, and shall be further defined as any ano all County Agents specifically employed and assigned by the County to work in the Information Technology Department as shown in the current County budget ano/or personnel records of the County. For any and all purposes in this Contract, any reference to County Agents shall also include within that term any and all Information Tecnnology Department Personnel, but any reference in this contract to Information Technology Department Personnel shall not include any County Agent employed by the County in any other function, capacity or organizational unit of the County other than the Information Technology Department. 1.3 "Municipality Agent" or "Municipality Agents'', shall be defined to include any and all Municipality officers, elected officials, appointed officials, directors, board members, council members, authorities, boards, committees, commissions, employees, managers, departments, divisions, volunteers, agents, representatives, and/or any such persons successors or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in their personal, representative, or official capacities), and/or any and all persons acting by, :nrough, under, or in concert with any of them, except that no County Agent shall be deemed a Municipality Agent and conversely, no Municipality Agent shall be deemed a County Agent. "Municipality Agent' shall also include any person who was a Ivlunicipality Agent at any time during this Contract but for any reason is no longer employed, appointed, or elected in that capacity, 1,4 'Claim(s)" shall be defined to include any and all alleged fosses, claims, complaints, demands for relief or damages, suits, causes of action, proceedings, judgments, deficiencies, liability, penalties, litigation costs arta expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, and/or any other amounts, liabilities or Ciaim(s) of any kind whatsoever which are imposed on, incurred by, or asserted against either the County and/or any County Agent, as defiled herein, or any Claim(s) for which the County and/or any County Agent may become legally and/or contractually obligated to pay or defend against, or any other liabilities of any kind whatsoever, whether direct, indirect or consequential, whether based upon any alleged violation of the constitution (federal or State), any statute, rule, regulation or the common law whether in law or equity, tort, contract, or otherwise, and/or whether commenced or threatened and arising out of any alleged breach of any duty by the County and/or any County Agent to any tnird-person, the Municipality, including any Municipality Agent or any E-Commerce Customer under or in connection with this Contract or are based on or result in any way from the County's and/or any County Agent's participation in this Contract. 1.5 'E-Commerce Customer" shall be defined as any and all persons or entities, vino pay or attempt to pay by credit card or electronic check via the Internet or the County's Interactive Voice Response Unit for products or services, offered by the Municipality, 4 §2. COUNTY INFORMATION TECHNOLOGY DEPARTMENT SERVICES The Parties agree that the full and complete scope of any and all County Information Technology Department Assistance Services shall be as described and limited in the following subsections (hereinafter defined and referred to as either "Information Technology Department Assistance Services" or "Services"). 2.1 "INFORMATION TECHNOLOGY DEPARTMENT ASSISTANCE SERVICES" OR "SERVICES" TO BE PROVIDED "Information Technology Department Assistance Services" or "ServicesTM, to be performed by County for the Municipality as those terms are defined in this Contract, shall only include and shall be limited to the following activities: 2.1.1. The County will provide, lost and maintain a "E-Commerce" System anc its connection to the Internet where "E-Commerce" Customers can pay for taxes, !icenses, permits and fees by means of a credit card or electronic check, utilizing the Internet. For purposes of illustration, tnese include, but are not limited to, property taxes, building permits, water bills and class registrations. This includes ensuring that any data stored or transmitted is accurate, complete and securely collected. 2.1.2. The County will provide, lost and maintain an Interactive Voice Response Unit and its connection to the "E-Commerce" System where E-Commerce Customers can pay for products and services as identified in this Contract by means of a credit card or electronic check utiliZng a telephone. This includes ensuring that any data stored or transmitted is accurate, complete and securely collected. 2 1.3. When tax payments are made to the Municipality that utilizes the County's "E-Commerce" Service and the County's tax receivable system, the County will post the payment without the need for the Municipality to enter the data separately, 2.1.4. When payments are made to the Municipality that utilizes the County's Commerce" Service for products or services that require updates to computerized systems maintained by the County, the County will post the payment without the need for the Municipality to enter the data separately 2.1.5. The County shall perform all maintenance and/or troubleshooting necessary to maintain the "E-Commerce" System. 2.1.6. The County shall maintain and support at no cost to the Municipality all transmission services and Internet service provider services necessary to maintain the System and allow the processing of fees for products and services as identified and itemized in this Contract. 2.1.7. The County shall provide all technical support with respect to 'E- Commerce" Customer questions regarding tne payment procedure. However, the County shall not be responsiblefor answering any questions regarding the arrount of payment due or owing, but shall refer all such questions directly to the Municipality. 2.1 8. The County will provide the Municipality with access to a Website, password protected, where the Municipality can issue "E-Commerce" Customer credits as may be required and view daily, weekly, and monthly transaction activity of paye rents processed through the County's "E- Commerce" System. Note: The customer Website shall also be a secure Website with all customer data collected, stored and transmitted in a secure manner. 2.1.9. The County shall provide all reasonable and necessary technology to ensure that customer data is protected and secured in accord with its contractual obligations and reasonable business standards and practices. The County shall be responsible for the cost of the various software licenses reeuired to carry out the terms of this contract, 2.2 PURPOSE OF COUNTY 'SERVICES" The Parties agree that the purpose of any and al: 'Information Technology Department Services' or "Services" to be performed under this Contract shall be to assist (e.g., to help, aid, lend support, and/or participate in as an auxiliary, to contribute effort toward completion of a goal. etc.) the Municipality !n the performance of that Municipality's official functions, obligations, and Municipality's legal responsibilities pursuant to any applicable Federal or State Laws and Local Ordinances. 2.3 MANNER COUNTY TO PROVIDE SERVICES The Parties agree that any and all " Informaton Technology Department Services" or "Services' to be provided ey the County for the Municipality under tht Contract shall be performed solely and exclusively by the County's "Information Technology Department Personnel' as defined herein. 2.3.1. Information Technology Department Personnel shall be employed and assigned by the County in such numbers and based on such appropriate qualifications and other factors as decided solely by the County, 2,3.2. The Parties agree that the County shall be solely end exclusively responsible for furnishing all Information Technology Department Personnel with ad job instructons, j013 descriptions and job specifications and shall in all circumstances control, supervise, train or direct all Information Technology Department Personnel in the performance of any and al Services under this Contract, 2.3.3. Except as otherwise expressly provided for herein, the Parties agree and warrant that, at all times and for a"I purposes relevant to this Contract, the County shall remain the sole and exclusive employer of all County Agents and Intirmation Technology Department Personnel and that the County shad remain solely and completely liable for any and all County Agents' past, present. or future wages, compensation, overtime wages, expenses. fringe benefits, pension or retirement benefits, travel expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or reimbursements of any kind, including, but not linted to, workers' disability compensation benefits, unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes. and/or any other statutory or contractual right or benefit based on or in any way related to any County Agent's employment status. 2.3.4 This Contract is neither intended, nor shall it be interpreted, to create. change, grant, modify, supplement, supersede, alter, or otherwise affect or control, in any manner, form, or at any time, any right, privilege, benefit, or any other term or condition of employment, of any kind or nature whatsoever, :n, Jpon, or to:- any County Agent Information Technology 6 Department Personnel with the County, any applicable County employment and/or union contract, and/or any County rule(s), regulation(s), hours of work, shift assignment, order(s), policy(ies), procedure(s), directive(s), ethical guideline(s), etc., which shall, solely and exclusively, govern and control the employment relationship between the County and any County Agent or Information Technology Department Personnel and/or the conduct and actions of any County Agent or any Information Tecnnology Department Personnel. To illustrate, but not otherwise limit, this Contract does not and shall not be interpreted to limit, modify, control, or otherwise affect, in any manner: 2.3.4,1. The County's sole and exclusive right, obligation, responsibility, and discretion to employ, compensate, assign, reassign, transfer, promote, reclassify, discipline, demote, layoff, furlough, discharge any Information Technology Department Personnel and/or pay any and Information Technology Department Personnel's wages, salaries, allowances, reimbursements, compensation, fringe benefits, or otherwise decide any and all such terms and conditions of employment and make any and all employment decisions that affect, in any way, the employment of any Information Technology Department Personnel with the County, subject only to its applicable collective bargaining Contracts. 2.3.4.2. The County's sole and exclusive right, obligation, and responsibility to determine, establish, modify, or implement any and all operational policies, procedures, orders, rules, regulations, ethical guidelines, and/or any other judgment, policy or directive which, in any way, governs or controls any activity of any County Agent or Information Technology Department Personnel, any necessary County Agent or Information Technology Department Personnel's training standards or orcficiency(ies), any level or amount of required supervision, any and all standards of performance, any sequence or manner of performance, and any level(s) of experience, training, or education required for any information Technology Department Personnel performing any County duty or obligation under the terms of this Contract. 2.3.5. The Municipality agrees that except as expressly provided for under the terms of this Contract and/or laws of this State, no County Agent or Information Technology Department Personnel, while such person is currently and/or actively employed or otherwise remains on the payroll of the County as a County Agent shall be employed, utilized, or perform any other services, of any kind, directly or indirectly, in any manner or capacity, or otherwise be available to perform any other work or assignments by or for the Municipality during the term of this Contract, This section shall not prohibit the Municipality from employing any person who was a former County Agent but is no longer employed in that capacity by the County. 2.3.6. Except as otherwise expressly provided by the Contract and/or applicable State law, the Parties agree and warrant that neither the County, nor any County Agent, nor any Information Technology Department Personnel, by virtue of this Contract or otherwise, shall be deemed, considered or claimed to be an employee of the Municipality and/or a Munidpality Agent. 2.3.7. The Municipality shall not otherwise provide, furnish or assign any Information Techno!ogy Department Personnel with any job instructions, job descriptions, job specifications, or job duties, or in any manner attempt to control, supervise, train, or direct any Personnel in the performance of any County's Information Technology Department Services duty or obligation under the terms of this Contract. 2.4 LIMITS AND EXCLUSIONS ON COUNTY ''SERVICES" The services Provided by the County under this Contract are limited to those services expressly provided for within this Contract, under tais Contract neither the County nor any County Agents shall be responsible for assisting or providing any other "Services or assistance to the Municipality or assume any additional responsibility for assisting the Municipality in any other way or manner with any Municipality obligations under any and all State Laws or Local Ordinances. The Municipality shall, at all times and under all circumstances, remain solely liable for any and all costs, legal obligations, anci/or civil liabilities associated with or in any way related to any Municipality legal obligation under any applicable Federal or State Laws or Local Ordinances. 3. TERM OF CONTRACT The Parties agree tnat the term of this Contract shall begin on the effective date of this Contract, as otherwise provided herein, and shall continue until terminated or cancelled as provided in Section §12 of this Contract. Any and all County Services otherwise provided to the Municipality prior to the effective date of this Contract, shall be subject to the terms and conditions provided for herein. §4. NO TRANSFER OF MUNICIPALITY LEGAL OBLIGATIONS TO COUNTY The Municipality agrees that this Contract does not, and is not intended to, transfer, delegate. or assign to the County, and/or any County Agent or Information Technology Department Personnel any civil or legal responsibility, duty, obligation, duty of care, cost, legal obligatm, or liability associated with any governmental function delegated and/or entrusted to the Mur ,cipality under any applicable Federal or State Law or Local Ordinance. 4_1 The Municipality shall, at all times and under all circumstances, remain solely liable for any and all costs, legal obligations, and/or civil liabilities associated with or in any way related to any Municipality receipt or collection of payments or any other Municipality legal obligation. The Municipality agrees that under no circumstances shall the County be responsible for any costs, obligations, and/or civil liabilities associated with its Municipality function or any responsibi:ity under any Federal or State Law or Local Ordinance. 4.2 The Municipality shall not incur or create any debts, liens, liabilities or obligations for the County and shall take all necessary steps to ensure that any debts, liens, liabilities or obligations that the Municipality may incur shall not become a debt, liability, obligation or Claim(s) against the County. 4.3 The Parties agree that the Municipality shall at all times remain responsible for the ultimate completion of any and all Municipality duties or obligations under any 8 and all applicable Federal or State Laws or Local Ordinances. Nothing in this Contract shall relieve the Municipality of any Municipality duty or obligation under ary applicable Federal or State Law or Local Ordinance. 4.4 The Municipality and Municipality Agents shall be and reniaiii responsible for compliance with all Federal, State, and Local laws, ordinances, regulations, and agency requirements in any manner affecting any work or performance of this Contract or with any Municipality duty or obligation under any applicable Federal or State Law or Local Ordinance. §5. NJO DFI EGATION OR WAIVER OF GOVERNMENTAL AUTHORITY OR IMMUNITY The Parties reserve to themselves any rights and obligations related to the provision of any and all of each Party's respective governmental services, authority, responsibilities, and obligations. Except as expressly provided otherwise herein, this Contract does not, and is not intended to, create, diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity, authority or character of office of either Party to any other person or Party. Notwithstanding any other term or condition in this Contract, that no provision in this Contract is intended, nor shall it Pe construed, as a waiver of any governmental immunity, as provided by statute or applicable court de6sions, by either Party, either for that Party and/or any County Agents or Municipality Agents. §6 FINANCIAL ARRANGEMENTS TO REMBURSE THE COUNTY FOR THE "E- COMMERCE" SERVICES 6.1 In order to avail themselves of the convenience of the eCommerce System, eCommerce Customers shall be required to pay, in addition to the monies owed to the Municipality, an additional Enhanced Access Fee. 6.2 The Enhanced Access Fee charged to any eCommerce Customer shall be in an amount as either now established, by the Oakland County Board of Commissioners (MISCELLANEOUS RESOLUTION #07121, Oakland County Board of Commissioner Minutes, May 24, 2007, p. 246) or as may be hereafter revised by the Oakland County Board of Commissioners. 6.3 At the t.me of payment, the eCommerce Customer will authorize two transactions: (1) one transaction for payment of monies owed to the Municipality and (2) one transaction for payment of the Enhanced Access Fee. The funds for the payment to the Municipality will be directed to the depository account designated and owned by the Municipality. The funds for the Enhanced Access 7-ee will Pe directed to a depository account designated and owned by the County. 6,4 Unless otherwise agreed to by tne Oakland County Board of Commissioners via a resolution, the Enhanced Access Fee shall belong to the County to recover costs associated with the eCommerce System. LIABILITY The Mur icipality further agrees that the County shall not be liable to the Municipality and/or "E-Commerce" Customer for any and all Claim(s), except as otherwise expressly provided for in this Contract. 7.1 Each Party shall be responsible for any CLAIMS made against that Party by a third party, and for the acts of its Employees or Agents, arising under or related to this Agreement. 7.2 In any CLAIMS that may arise under or relate to this Agreement, each Party shall seek its own legal representation and bear the costs associated with such representation, including any attorney fees. 7.3 Except as otherwise provided in this Agreement, neither Party shall have any right under any legal principle to be indemnified by toe other Party or any of its employees or agents in connection with any CLAIM. 7,4 This Contract does not and is not intended to create or include any County warranty, promise, covenant, or guaranty, either express or implied, of any kind or nature whatsoever, in favor of the Municipality, Municipality Agents, eCommerce Customer, or any other person or entity; or that the County's performance under this Contract will result in any specific monetary benefit or efficiency to the Municipality or increase in any revenue for the Manicipality. 7.5 In the event of any alleged breach, wrongful termination, and/or any default of any term or condition of this Contract neither Party shall be liable to the other for any indirect, incidental, special or consequential damages, :ncluding, but not .irnited to any replacement costs for Services, any loss of income or revenue, and/or any failure to meet any obligation under any applicable State Laws, Local Ordinances or any other economic benefit or harm that the Party may have realized, but for any alleged breach, wrongful termination, default and/or cancellation of this Contract. §8. MUNICIPALITY AGENTS AND COOPERATION WITH THF COI 1NTY The Municipality agrees that it shall be solely and exclusively responsible, during the term of this Contract, for guaranteeing that all Municipality Agents fully cooperate with Information Technology Department Personnel in the performance of all County Services under this Contract. 8.1 Municipality Agents shall be empioyed and assigned based on appropriate qualifications and other factors as decided by the Municipality. The Municipality agrees that it shall be solely responsible for furnishing all Municipality Agents with all job instructions, job descriptions and job specifications and shall solely control, direct, and supervise all Municipality Agents and shall be solely responsible for the means and manner in whicn Municipality's duties or obligations under any apOcable Federal or State Laws or Local Ordinances are satisfied. 8.2 The Municipality agrees that it shall be solely and completely liable for any and all Municipal ty Agents' past, present, or future wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or reimbursements of any kind, including, but not limited to, workers' disability compensation benefits, unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or any other statutory or contractual right or benefit based on or in any way related to any Municipality Agent's employment status or any alleged violation of any Municipality Agent's statutory, contractuai (e g., union, employment, or labor contract), constitutional, common law employment right, and/or civil rights by the Municipality. The Municipality agrees to ;nclemnify and hold harmless the County from and against any and all Claim(s) which are imposed upon, incurred by, or asserted against the County or any County Agent by any Municipality Agent and/or which are based upon, result from, or arise from, or are in any way related to any Municipality Agent's wages, compensation, benefits, or other employment- related or based rights, including, but not limited to, those described in this section. 8.3 The Municipality agrees that no Municipality Agent shall, by virtue of this Contract or otherwise, be considered or calmed to be an employee of the County and/or a County Agent. This Contract does not grant or confer, and shall not be interpreted to grant or confer, upon any Municipality Agents or any other individual any status, privilege, right, or benefit of County employment or that of a County Agent. 8.4 The Municipality understands that the current credit card processing services for the "E-Commerce" System are being handled through PayPal Inc. and Elavon, Inc. The Municipality agrees that as a condition precedent to County performance of credit card payment Services under this Contract that the Municipality shall establish and maintain an agreement for credit card processing services with the entities currently providing credit card processing services for the "E-Commerce" System. Additionally, the Municipality shall maintain a corresponding depository bank account, with a depository financial institution acceptable to the County, for the receipt of Municipality payments. 8.5 The Municipality understands that the current electronic check processing services for the "E-Commerce" System are being handled through ACH Direct Inc. The Municipality agrees that as a condition precedent to County performance of eleutronic check payment Services under this Contract that the Municipality shall establish and maintain an agreement for electronic check processing services with the entities currently providing electronic check processing services for the "E-Commerce" System. Additionally, the Municipality shall maintain a corresponding depository bank account, with a depository financial institution acceptable to the County, for the receipt of Municipality payments. 8.8 Tne Municipality understands and agrees that the County's Services under this Contract are possible, in part, because of services provided by PayPal Inc., Eleven Inc. and ACH Direct, Inc The Municipality agrees that neither it nor any Municipality Agent shall act or fail to act, either directly or indirectly, in such a mariner so as to cause any purported breach in any term or condition in any agreement between the County and any third party provider of any goods or services underlying the County's ability to provide services under this Contract. 5.7 In the event the County enters into an agreement for credit card or electronic check payment processing services with entities other than those providing these services at the time of the execution of this Contract, the Municipality agrees that as a condition precedent to continued County performance of Services under this Contract that *.ne Municipality shall establish and maintain an agreement for payment processing services with the entities providing those services for the "E- Commerce" System at that time. The Municipality further agrees to provide the County with all necessary bank account and routing numbers to give effect to this Contract. 11 §9. INDEPENDENT CONTRACTOR The Parties agree that at all times and for all purposes under the terms of tnis Contract, the County's ard/or any and all County Agents' legal status and relationship to the Municipality shall be that of an Independent Contractor. Except as expressly provided herein, each Party will be solely responsible for the acts of its own employees, Agents, and servants during the term of this Contract. No liability, right or benefits arising out of an employer/employee relationship, either express or implied, shall arise or accrue to either Party as a result of this Contract. §10. PRIORITIZATION OF COUNTY RESOURCES COUNTY The Municipality acknowledges and agrees that this Contract does not, and is not intended to, create either any absolute right in favor of the Municipality, or any correspondent absolute duty or obligation upon the County, to guarantee that any specific number(s) or classification of County Agents will be present on any given day to provide County services to the Municipality. §11. CANCELLATION OR TERMINATION OF THIS CONTRACT Except as follows, and notwithstanding any other term or brovision in any other section of this Contract, either Party, upon a minimum of sixty (60) calendar days written notice to the other Party, may cancel and/or completey terminate this Contract 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. 11.1 At 5:00 p.m. on the effective date of the cancellation of this Contract ali Municipality and/or County obligations under this Contract, except those rights and obligations expressly surviving cancellation as provided for in this Contract, shall end. 11.2 The Municipality understands and agrees that the County's ability to provide the Services contemplated in this Contract depend upon current contractual relationships between the County and third party software and credit card and electronic check processing companies, and that if for any reason any such underlying third party contractual relationships should terminate, that the County's obligation to provide any Services under this Contract shall also end, immediately and notwithstanding any minimum notice requirement contained in this Contract 11.3 The Municipality agrees that any and all Municipality obligations, including, but not limited to, any and all indemnification and hold harmless promises, waivers of :iabtity, record-keeping requirements, any Municipality payment obligations to the County, and'or any other related obligations provided for in this Contract with -egard to any acts, occurrences, events, transactions, or Claim(s) either occurring or having their basis in any events or transactions that occurred before the cancellation or completion of this Contract, shall survive the cancellation or completion of this Contract, §12, EFFECTIVE DATE, CONTRACT APROVAL. AND AMENDMENT The Parties agree that this Contract, and/or any subsequent amendments thereto, shall not become effective prior to the approval by resolution of the Oakland County Board of Commissioners and the Municipality Governing Body. The approval and terms of this Contract, and/or any possible subsequent amendments thereto, shall be entered in the official minutes and proceedings of both the Oakland County Board of Commissioners and the Municipality Governing Body and shall also be filed with the office of the Clerk of the County and the Clerk of the Municipality. §13. CONTRACT AMENDMENTS The Parties agree that this Contract, and/or any possible subsequent amendments, shall be filed with the Michigan Secretary of State and this Contract, and/or any possible subsequent amendments, shall not become effective prior to this required filing with the Secretary of State. The Parties agree that except as expressiy provided herein, this Contract shall not be changed, supplemented, or amended, in any manner, except as provided for herein, and no other act, verbal representation, document, usage or custom shall be deemed to amend or modify this Contract in any manner. Any modifications, amendments, recessions, waivers or releases to this Contract must be in writing and agreed to by both Parties. The modification, amendment, recession waiver or release shall be signed by an expressly authorized Municipality Agent and by a County Agent authorized by the Oakland County Board of Commissioners. §14. NO THIRD-PARTY BENEFICIARIES Except as expressly provided herein for the benefit of the Parties (i.e., County or Municipality), this Contract does not, and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise, benefit, right to be indemnified (i.e.. contractually, legally, equitably, or by implication) and/or any right to be subrogated to any Party's rights in this Contract, and/or any other right of any kind, in favor of any person, including, but not limited to, any County Agent or Municipality Agent or any ''E-Commerce' Customer, any "E-Commerce" Customer's legal representative, any organization, any alleged unnamed beneficiary or assignee, and/or any other person. §15. CONSTRUED AS A WHOLE The language of all parts of this Contract 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 Contract, the singular or plural number, possessive or nonpossessNe shall be deemed to include the other whenever the context so suggests or requires. §16. CAPTIONS The section headings or titles and/or all section numbers contained in this Contract 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 Contract. §17. 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 Contract to be delivered to either Party shall be sent to that Party by first class mail. All such written notices, ncluding any notice canceling or terminating this Contract as provided for herein, shall be sent to tie other Party's signatory to this Contract, or that signatory's successor in office, at the addresses shown in this Contract. All correspondence cr written notices shall be considered delivered to a Party as of the date that such notice is deposited with sJfficient postage with the U.S. Postal Service. §18, WAIVER OF BREACH The waiver of a breach of any provision of this Contract shall not operate or be construed as a waiver of any subsequent breach. Each and every right, remedy and power granted to either party or allowed it by law shall be cumulative and not exclusive of any other. §19. FORCE MAJEURE (Events Beyond The Parties' Control) Notwithstanding any other term or provision of this Contract, neither Party shall be liable to the other for any failure of ptr rut r idrii,e hereunder if such failure is due to any cause beyond the reasonable control of that Party and that Party cannot reasonably accommodate or mitigate the effects of any such cause. Such cause shall include, without limitation, acts of God, fire, explosion, vandalism, any law, order, regulation, direction, action, or request of the United States government or of any other government, national emergencies, 4 insurrections, rots, wars, strikes, lockouts, work stoppages, or other labor difficulties, or the failure of any underlying contractual arrangement with any anticipated third-party provider of goods, services, software. including any condition precedent necessary to implement this Contract. Reasonable notice shall be given to the affected Party of any such event. The Municipality is expected, through alternative temporary Or emergency service arrangements, to continue any Municipality obligations imposed by any applicable Federal or State Law or Local Ordinance. §20. ENTIRE CONTRACT This Contract, consisting of a total of thirteen (13) pages, sets forth the entire agreement between the County and the Municipality and fully supersedes any and all prior agreements or understandings between them in any way related to the subject matter nereof. 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 Municipality in any way related to the subject matter hereof, except as expressly stated herein. This Contract shall not be changed or supplemented orally and may be amended only as otherwise provided herein. The Parties previously entered into an E -COMMERCE SERVICES AGREEMENT (hereafter, "Prior Contract') that was fully executed on . Both Parties desire to terminate the Prior Contract and replace it with this Contract as of the "effective date" of this Contrac as that term is defined in section 12 of this Contract. The Municipality, however, agrees that any and all Municipality obligations, including, out not limited to, any and all indemnification and hold harmless promises, waivers of liability, record-keeping requirements. any Municipality payment obligations to the County, and/or any other related obligations provided for :n the Pror Contract with regard to any acts, occurrences, events. transactions, or Claim(s) either occurring or naving their basis in any events or transactions that occurred before the cancellation or completion of the Prior Contract, shall survive the termination of tne Prior Contract. For and in consideration of the mit,ual assurances, promises, acknowledgments, warrants, representations, and agreements set forth in this Contract, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the undersigned hereby execute this Contract on behalf of the Parties, and by doing so legally ooligate and bind the Parties to the terms anc conditions of this Contract. IN WITNESS WHEREOF, hereby acknowkidgi:s. that s authorized to eNeCUIC 111:S Contract on behalf of the Municipality and hei .:2by 3ciiepN and inds thi: Municipality to the terms and conditions of tilk Contract. EXECUTED. DATE: Municipality Chief Executive WITNESSED: DATE: Municipality Clerk J 4' IN WITNESS WHEREOF, Bill Bullard, Jr.. Chairperson, Oakland County Board of Commissioners, hereby acknowledges that he has been authorized by a resolution of the Oakland County Board of Commissioners, a certified copy of which is attached, to execute this Contract on behalf of Oakland County, and hereby accepts and binds Oakland County to the terms and conditions of this Contract. EXECUTED: DATE: Bill Bullard, Jr., Chairperson Oakland County Board of Commissioners WITNESSED: DATE: Ruth Johnson, Clerk/ Register of Deeds County of Oakland Top: 0.3a", Secton C.oni fuo;,s. P2acir Ostrice frn edge: 0,0 Focter distance frcm edge: 0.3- B. E-COMMERCE SERVICES AGREEMENT This E-COMMERCE SERVICES AGREEMENT. (hereafter, this "Contract") is made and entered into between the COUNTY OF OAKLAND, a Michigan Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac. Michigan 48341 (hereafter, the "County"), and the a Michigan Constitutional and Municipal Corporation, whose address is: , Michigan (hereafter. the " Municipality"). In this Contract, either the County and/or the Municipality may also be referred to individually as a "Party" or jointly as "Parties." INTRODUCTORY STATEMENTS A. The County has developed an "E-Commerce" System that permits the use of credit cards and electronic checks via the Internet, for payment of the charges for products and services. The Municipality has requested the County's Information Technology Department assistance in performing the "information Technology Department Assistance Servtes' (hereafter "Services")(as described and defined in this Contract) and has agreec in return to reimburse the County as provided for in this Contract. C. The County has determined that t has sufficient "Information Technology Department Personnel," as defined herein, possessing the requisite know:edge and expertise and is agreeable to assisting the Mun'cipality by providing the requested "Information Technology Department Assstance Services" under tne terms and conditions of this Contract. D. The purpose of this Contract is to enable tne Municipality to utilize the "E-Commerce" System, that the County has developec, to assist the Municipality in the collection of fees for products and services via oreOit card and/or electronic check. NOW. THEREFORE, in consideration of these premises and the mutual promises, representations, and agreements set forth in this Contract, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, tne County and tile Municipality mutually agree as follows: §1. DEFINED TERMS In addition to trio above defined terms (i.e., "Contract", "County", "Municipality", 'Party" and "Parties", and "State"), the Parties agree that the following words ano expressions when printed with the first letter capitalized as shown herein, whether used in the singular or plural, possessive or nonpossessive, and/or either within or without quotation marks, shal, be defined and interpreted as follows: 1.1. "County Agent" or "County Agents" sha I be defined as any and all Oakland County elected officials, appointed officials, directors, board members, council members, commissioners, authorties other boards. committees, commissions, employees, managers, departments. dMsions, volunteers, agents, reoresentatives. and/or any such persons' successors or predecessors. agents. employees, attorneys, or auditors (whether such persons act or acted in their personal representative or official capacities), and/or any persons acting by. through, uncer, or in concert with any of them, excluding the Municipality and/or any Municipality Agents, as defined herein. "County Agent" and}or "County Agents" shall also inciude any person who was a County Agent anytime during the term of this Contract Put, for any reason, is no longer employed, appointed, or elected and serving as a County Agent. 1.2. "Information Technology Department Personnel" as used in this Contract shall he defined as a specific sJbset of, and include° as part of the larger group of County Agents as defined above, and shall be further defined as any and all Cocrity 16 Agents specificaliy'employed and assigned by the County to work in the Information Technology Department as shown in the current County budget and/or personnel records of the County. For any and all purposes in this ;./ Contract, any reference to County Agents shall also include within that term any and all information Technology Department Personnel, out any reference in this contract to Information Technology Department Personnel shall not include any County Agent employed by the County in any other function, capacity or organizational unit of the County other than the Information Technology Department. 1.3. 'Municipality Agent" or "Municipality Agents', shall be defined to include any and all Municipality officers, elected officials, appointed officials, directors, board members, council members. authorities, boards, committees, commissions, employees, managers, departments, divisions, volunteers, agents, representatives, and/or any such persons' successors or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in their personal, representative, or offieial capacities), and/or any and all persons acting by, through, under, or in concert with any of them, except that no County Agent shall he deemed a Municipality Agent and conversely, no Municipality Agent shall be deemed a County Agent. "Municipality Agent" shall also include any person who was a Municipality Agent at any time during this Contract but for any reason is no longer employed, appointed, or elected in that capacity. 1.4. "Claim(s)" shall be defined to include any and all alleged losses, claims, complaints, demands for relief or damages, suits, causes of action, proceedings, judgments. deficiencies, liability, penalties, litigation costs and expenses, inc uding, but not limited to, any reimbursement for reasonable attorney fees, witness fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, and/or any other amounts, liabilities or Claim(s) of any kind whatsoever which are imposed on, incurred by, or asserted against either the County and/or any County Agent, as definee herein, or any Claim(s) for which the County and/or any County Agent may become legally and/or contractuaIly obligated to pay or defend against, or any other liabilities of any kind whatsoever, whether direct. iedirect or cor sequential. whether based upon any alleged vioiation of the constitution (federal or State), any statute, rUIG, regulation or the common law, whether in law or equity, tort, contract, or otherwise, and/or whether commenced or threatened and arising out of any alleged breach of any duty by the County and/or any County Agent to any third-person, the Mun:cinality, including any Municipality Agent or any E-Commerce Customer under or in connection with this Contract or are based on or result in any way from the County's and/or any County Agent's participation in this Contract. 1.5. "E-Commerce Customer" shall be defined as any and all persons or entities, who pay or attempt to pay by credit card or electronic chock via the Internet or the County's Interactive Voice Response Unit for products or services, offered by the Municipality. §2. COUNTY INFORMATION TECHNOLOGY DEPARTMENT SERVCES The Parties agree that the full and complete scope of any and all County Information Technology Department Assistance Services shall be as described and limited in the following subsections (hereinafter defined and referred to as either "Information Technology Department Assistance Services" or "Services"). 2.1. "INFORMATION TECHNOLOGY DEPARTMENT ASSISTANCE SERVICES" OR "SERVICES" TO BE PROVIDED "Information Technology Department Assistance Services" or "Services", to be performed by County for the Municipality as those terms are defined in this Contract, shall only include and ' shall be h.nited to the following activities: 2.1.1. The County will provide, host and maintain a 'E-Commerce System and its connection to the Internet where "E-Commeree" Customers can pay for taxes, licenses, permits and fees by means of a credit card or ctcnic :Mock, alizing the Internet. For purposes of illustration, these incluoe, but are not limited to, property taxes, building permits, water bil s am class registrations. This includes ensuring that any data stored or transmitted is accurate, complete and securely collected. 2.12. The County will provide, host and maintain an interactive Voice Response Unit and its connection to the "E-Commerce" System where E-Commerce Customers can pay for products and services as identified in this Contract by means of a credit card or electronic check utiVzing a telephone. This includes ensuring that any data stored or transmitted is a.:curate. complete and securely collected. 21.3. When tax payments are made to the Municipality that utilizes the County s 'E-Commerce" Service and the County's tax receivable system, the County will post the payment without the reed for the Municipality to enter tne data separately. 2.1.4: When payments are made to the Municipality that utilizes the Couly's "E-commerce" service for products or services that require updates to computerized systems maintained by the County, the County will post the payment without the need for the Municipality to enter the data separately 2.1.5. The County shall perform all maintenance andior troubleshooting necessary to maintain the "E-Commerce" System.. 2.1.6. The County shall maintain and support at no cost to tne Municipality at transmission services and Internet service provider services necessary to maintain tre System and allow the processing cf fees for products and services as ldentified and itemized in this Contract 2.1.7. The County shall provide all technical support with respect to "E- Commerce" Customer questions regarding the payment procedure. However, the County shall not be responsible for answering any questions regarding the amount of payment due or owing, but shall refer att such questions directly to tne Municipalty. 2.1.8. The County will provide the Municipality with access to a Website, password protected, where the Municipality can issue -E-Commerce" Customer credits as may be required and view daily, weekly, and monthly transaction activity of payments processed througr, the County's "E-Commerce System. Note: The customer Website shall also be a secure Webs to with all customer date collected, stored and transmitted in a secure manner. 2.1.9. The County shall provide all reasonable me necessary technology to en,sure that customer data is protected and secured in accord with its contractual obligations and reasonable business standards and practices. The County sha I be responsible for t'ie cost of the various software licenses required to carry out the terms of this contract. 2.2. PURPOSE OF COUNTY 'SERVICES' The Parties agree that the purpose of any and all -information Technology Cepartment Services" or "Services" to be performed under this Contract shall be to assist (e.g., to help, aid. lend support, and/or participate ie as an auxiliary, to contribute effort toward completion of a goal, etc.) the Municipality in the performanee of that Municipality's official functions, obligatiors, and Municipality's legal responsibilities pursuant to any applicable Federal or State Laws and Local Ordinances. 2.3. MANNER COUNTY TO PROVIDE SERVICES The Parties agree that any and all " :.!en Technology Department Services" or "Services" to be provided by the County for the Municipality under this Contract shall be performed solely and exclusively by the County's "Information Technology Department Personnel" as defined herein. 2.3.1, Information Technology Department Personnel shall be employed and assigned by the County in such numbers arid based on such appropriate qualifications and other factors as decided solely by the County. 2.3.2, The Parties agree that the County shall be solely and exclusively responsible for fumishieg all Information Technology Department Personnel with all job instructions, job descriptions and job specifications ane shall in all circumstances control, supervise, train or direct all Information Technology Department Personnel in the performance of any and all Services under this Contract. 2.3.3. Except as otherwise expressly provided for herein, the Parties agree and warrant that, at all times and for all purposes relevant to this Contract, the County shall remain the sole and exclusive, employer of all County Agents and reformation Technology Department Personnel and that the County shall remain solely and completely liable for any and all County Agents past, present, or future wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or reimbursements of any kind, including. but not limited to, workers' disability compensation benefits, unemployment compensation, Social Security Act protection(s) and benefits any employment taxes, and/or any other statutory or contractual right or benefit based on or in any way related to any County Agent's employment status. 2.3.4. This Contract is neither intended, nor shall it be interpreted, to create, change, grant, modify, supplement, supersede, alter, or otherwise affect or control, in any manner, form, or at any time, any right, privilege. benefit, or any other term or condition of employment, of any kind or nature whatsoever, in. upon, or for any County Agent Information Technology Department Personnel with the County, any applicable County employment arid/or union contract, and/or any County rule(s), regu'ation(s). hours of work, shift assignment, order(s), policy(ies). procedure(s), directive(s), ethical gu deline(s). etc., which shall, solely and exclusively, govern and control the employment relationship between the County and any County Agent or Information Technology Department Personnel and/or the conduct and actions of any Cmnty Agent or any Information Technology Department Personnel. To illustrate, but not otherwise limit, this Contract does not and shall not be interpreted to limit, modify, control, or otherwise affect, in any manner: 2.3.4.1. The County's sole and exclusive right, obligation, responsibility, and discretion to employ, compensate, assign, reassign, transfer, promote, reclassify, discipline, demote, layoff, furlough, discharge any Information Technology ..L Department Personnel and/or pay any arid Information Technology Department Personnel's wages. salaries, allowances, reimbursements, compensat on, fringe benefits, or otherwise decide any and all such terms and conditions of employment and make any and all employment decisions that affect, in any way, the employment of any Information Technology Department Personnel with the County, subject on.y to its applicable collective bargaining Contracts, 2.3.4.2. The County's sole and exclusive right, obligation, and responsibility to determine, establish, modify, or implement any ard all operational policies, procedures, orders, rules, regulations, ethical guidelines, and/or any other judgment, poky or directive which, in any way, governs or controls any actvity of any County Agent or Information Technology Department Personnel, any necessary County Agent or Information Technology Department Personnel's training standards or proficiency(ies). any level or amount of required supervision, any and all standards of performance, any secuence or manner of performance. and any level(s) of experience, training, or education required for any Information Technology Department Personnel performing any County duty or obligation under the terms of this Contract. 2.3.5. The Municipality agrees that except as expressly provided for under the terms of this Contract and/or laws of this State, no County Agent or Information Technology Department Personnel: while such person is currently and!or actively employed or otherwise remains on the payroll of the County as a County Agent shall be employed, utilized, or perform any other services, of any kind, directly or indirectly, in any manner or capaerty. or otherwise be available to perform any other work or assignments by or for the Muntipality curing the term of this Contract. This section shall not prohibit the Municipality from employing any person who was a former County Agent but is no longer employed in that capacity by the County. 2.3.6. Except as otherwise expressly provided by the Contract and/or applicable State law, the Pates agree and warrant that neither the County, nor any County Agent, nor any Information Technology Deportment Personnel, by virtue of this Contract or otherwise, shall be deemed, considered or claimed to be an employee of the Municipality and/or a Municipality Agent. 2,37. The Municipal ty shall not otherwise provide. furnish or assign any intormatler, Technology Department Personnel with any lob •.nstructions, job descript•ons. jab specifications, or job duties, or in any manner attempt to cootrol. supervise, train, or direct any Personnel in the performance of any County's Information Technology Department Services duty or obligation under the terms of this Contract. 2.4. LIMITS AND EXCLUS'ClNS 014 COUNTY 'SERVICES' services provided by the County under this Contract are :imited to those services exoressly provided for within this Contract, under this Contract neither the County nor any County Agents shall be responsible for assisti;-.9 or providing any other "Services "or assistance to the Municipality or assume any additional responsibility for assisting the Mu'licibality in any other way or manner with any Mun cipality obligations under any and all State Laws or Local Ordinarces. The Municipality shall, at air times and under all circumstances, remain solely liable for any and all costs, legal obl:gations, and/or civil liabilities associated with or in any way related to any Municipality legal obligation under any applicable Federal or State Laws or Local Ordinances. §3. TERM OF CONTRACT The Parties agree that the term of this Contract shall begie on the effntiv:,,.. date of this Contract, as otnerwise provided herein, and shall continue until terminated or cancelled as provided in Section §12 of this Contract. Any and all County Services otherwise provided to the Municipality prior to the effective date of this Contract, shall be subject to the terms and conditions provided for herein. §4. JOIRANSFER OF MUNICIPALITY LEGAL OBLIGATIONS TO COUNTY The Municipality agrees that this Contract does not, and is not intended to, transfer, delegate, or assign to the County, and/or any County Agent or Information Technology Department Personnel any civil or legal responsibility, duty, obligation, duty of care, cost, legal obligation, Or liability associated with any governmental function delegated and/or entrusted to the Municipality under any applicable Federal or State Law or Local Ordinance. 4.1. The Municipality shall, at all times and under all circumstances, remain solely liable for any arid all costs, legal obligations, and/or civil liabilities associated with or in any way related to any Municipality receipt or collection of payments or any other Municipaiity legal obligation. The Municipality agrees that under no circumstances shall the County be responsible for any costs, obligations, and/or civil liabilities associated with its Municipality function or any responsibility under any Federal or State Law or Local Ordinance. 4.2. The Municpality shall not incur or create any debts, liens, liabilities or obl;gations for the County and shall take all necessary steps to ensure that any debts, liens, liabilities or obligations that the Municipality may incur shall not become a debt, liability, obligation or Claim(s) against the County. 4.3. The Parties agree that the Municipality shall at all times remain responsible for the ultimate completion of any and all Municpality duties of obligations under any and all applicable Federal or State Laws or Local Ordinances. Nothing in this Contract shall relieve the Municipality of any Municipality duty or obligation under any applicable Federal or State Law or Local Ordinance. 4.4. The Municipality and Municipality Agents shall be and remain responsible for compliance with all Federal. State, and Local laws, ordinances, regulations, and agency requirements in any manner affecting any work or performance of this Contract or with any Municipality duty or obligation under any applicable Federal or State Law or Local Ordinance. §5. NO DELEGATION OR WAIVER OF GOVERNMENTAL AUTHORITY OR IMMUNITY The Parties reserve to themselves any rights and ob igations related to the provision of any and all of each Party's respective governmental services, authority, responsibilities, and obligations. Except as expressly provided otherwise herein, this Contract does not, and is not intended to, create, diminish, delegate, transfer, assign. divest, impair, or contravene any constitutional, statutory, and/or othor legal right, privilege, power, civil or legal responsibhty, obligation, duty of care, liability, capacity, immunity, authority or character of office of either Party to any other person or Party. Notwithstanding any other term or condition in this Contract, that no provision in this Contract is intended, nor shall it be construed, as a waiver of any governmental immunity, as provided by statute or applicable court decisions, by either Party, either for that Party and/or any County Agents or Municipality Agents. §6. FINANCIAL ARRANGEMENTS TO HE COUNTY FOR THE "E- ' COMMERCE SERVICES 6.1. 6.2. 6.3. 6.4. §7. LIABILITY The MLnicipality further agrees that the County shall not be liaole to the Municpality andor "E-Commerce" Customer for any and all Claim(s), except as otherwise expressly provided for in this Contract, 7.1. The Parties agree that this Contract does not and is not intended to create or induce any County warranty, promise, covenant or guaranty, either express or implied, of any kind or nature whatsoever in favor of the MunIcioaiity, and/or any Municipality Agents, or any "E-Commerce" Customer or any other person or entity. or that toe Coanty's efforts in the performance of any obligation under tNs Contract will result in any specific monetary henet or efficiency. or increase in any tax revenue for the Municipality. 7.2. In the event of any alleged breach, wrongful termination, and/or any default of any term or condition of this Contract by either the County or any County Agent, the County and/or any County Agent shall not be liable to the Municipality for any indirect. incidental, special or consequential damages, including, but not limited to any replacement costs for County Services, any loss of income or revenue, ardior any failure by the Municipality to meet any Municipality obligation under any applicable State Laws, Loca,' Ordinances or any °ter economic benefit or harm that the Municipality may have realized, but for any alleged breach. wrongfui terminatior, cefault and/or cancellation of this Contract. or damages beyond or in excess of the amount(s} of any amount paid to, received or retained .py the County at the time of the alleged breach or defaul, in connection with or L.nder the terms of this Contract, whether such alleged breach or default is alleged in an action in contract or tort and/or whether o , not the Municipality has been advised of the possibility of such damages. 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S.,TV ; ' .. . re; • ,Iceild,ce • and IrcI ciii inyokts. _ 0,rI dccl tr width! .5 ii ud or qt0II 10a cite chic of t'aralt..4.01e. arJ out, air i.Lc],I,i,Iirl;cll.c (:11: %NIA, t;lJr!-....' cci lila Ii ' 7.3. Notwithstending arty other provision in this Contract, with regard to any and all al:eged losses, claims, comp aints, demands for relief or damages, suits, causes of action, proceedings, judgments, deficiencies. liability, penalties, litigation costs and expenses. including, but not limited to, any reimbursement for reasonable attorney fees. witness fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, and/or any other amounts, liabilities of any kind whatsoever which are imposed on, incurred by, or asserted against the Municipalty or any Municipality Agent by any third person, ircluding but not limited to any Municipality Agent Of E-Commerce Customer, arising out of any activities or Services to be carried cut by any County Agent in the performance of this Contract, the Municipality hereby agrees that it shall have no rights pursuant to or under this Contract against the County and/or any County Agents to or for any inciemnification {i.e., contractually, legally, equitably, or by implication) contribution, subrogation, or other right to be reimbursed by the County and/or any of County Agents based upon any and al legal theories or alleged rights of any kind, whether known or unknown, for any and all alleged losses, claims, complaints, demands for relief or damages, judgments. deficiencies, liability, penalties. litigation costs and expenses of any kind whatsoever which are imposed on. incurred by, or asserted against the Municipality and which are alleged to have arisen under or are in any way based or predicated upon this Contract. §8. MUNICIPALITY AGENTS AND COOPERATION WITH THE COUNTY The Municipality agrees that it snail be solely and exclusively responsible. during the term of this Contract, for guaranteeing that all Municipality Agents fully cooperate with Information Technology Department Personnel in the performance of all County Services under this Contract. 8.1, Municipality Agents shall be employed and assigned based on appropriate qualifications and other factors as decided by the Municipality. The Municipality agrees that it shall se solely responsible for furnishing all Municipality Agents with all job instructions, job descriptions and job specifications and shall solely control, direct, and supervise all Municipality Agents and shall be solely responsible for the means and mariner in which Municipality's duties or obligations under any applicable Federal or State Laws or Local Ordinances are satisfied. 8.2. The Municipality agrees that it shall be solely and completely liable for any and all Municipality Agents' past, present, or future wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or reimbursements of any kind, including, but not limited to, workers' disability compensation benefits, unemployment compensation, Social Security Act protection(s) and benefits, any employment taxes, and/or any other statutory or contractual right or benefit based on or in any way related to any Municipality Agent's employment status or any alleged violation cf any Municipality Agent's statutory, contractual (e.g., union. employment, or labor contract), constitutional, common law employment right, andior civil rights by the Municipality. The Municipality agrees to indemnify and hold harmless the County from and against any and all Claim(s) which are imposed upon. incurred by, or asserted against the County or any County Agent by any Murecipality Agent and/or which are based upon, result from, or arise from, or are in any way related to any Municipality Agent's wages, compensation, benefits, or other employment- re ated or based rights, including, but not limited to, those described in this section. 8,3. The Municipality agrees that no Municipality Agent shall, by virtue of this Contract' or otherwise, be considered or claimed to be an employee of the County and/or a County Agent. This Contract does not grant or confer, and shall not be interpreted to grant or confer, upon any Municipality Agents or any other individual any status, privirege, right, or Penefa of County employment or that of a ounty Agent. 8.4. The Municipality understands that the current credit card processing services for the 'E-Commerce" System are being handled through PayPal Inc. and Elavon, Inc. The Municipality agrees that as a condition precedent to County performance of credit card payment Services under this Contract that the Municipality shall establish and maintain an agreement for credit card processirg services with the entities currently providing credit card processing services for the -E-Commerce System, Additionally, the Municipality shall maintain a corresponding depcsitory bank account, with a depository firancial institution acceptable to the County, for the receipt of Municipality payments. 8.5. The Municipality unoerstands that the current electronic check processing services for the 'E-Commerce" System are being handled through ACH Direct The Municipality agrees that as a condition precedent to County performance of electronic check payment Services under this Contract that the Municipality shall estabds7, and maintain an agreement for electronic check processing services with the entities currently providing electronic check processing services for the "E-Commerce" System. Additionally, the Municipality shat maintain a corresponding depository bank accourt, with a depository financial institution acceptable to the County. for the receipt of Municipality payments. 8.6. The Municipality understands and agrees that the County's Soh/ices under this Contract are possible, in part, because cif services provided by PayPaf Inc., Elavon Inc. and ACH Direct, Inc. The Municipality agrees that neither it nor any Municipality Agent shall act or fail to act, either directly or indirectly, in such a manner so as to cause any purported w•oach in any term or condition in any agreement between the County and any third party provider of any goods or services undedyng the County's aoility to provide services under this Contract. 81, In the event the County enters into an agreement for credit card or electronic check payment processing services with entities other than those providing these services at the time of the execution of this Contract, the Municipality agrees that as a condition precedent to continued County performance of Services under this Contract that the Municipality shall establish and maintain an agreement for payment processing services with the entities providing those services for the "E- Commerce" SYStern at that time. The Municipality further agrees to provide the County with all necessary hank acocunt and routing numbers to give effect to this Contract. §9 INDEPENDENT CONTRACTOR The Parties agree that at all times and for all purposes under the terms of this Contract, the County's and/or any and al County Agents' legal status and relationship to the Municipality sha:1 be that of an 1:"deperidont Contractor. Except as expressly provided herein, each Party will he solely responsible for the acts of its own employees, Agents, arc' servants during the term of this Contract. No liability, right or benefits arising out of an employer/employee relationship, either express or implied, shall arise or accrue to either Party as a result of this Contract. §10. PRIORITIZATION OF COUNTY RESOUROES COUNTY The Municipality acknowledges and agrees that this Contract does not, and is not intended to, create ether any absukte right in feior of the Municipa:ity, or any correspondent absolute duty 24 or obligation upomthe County, to guarantee that any specific number(s) or classification of County Agents will be present on any given day to provide County services to the Municipality. §11. INDEMNIFICATION The Municipality shall not be obligated to pay any portion of any court ordered judgment or award to a third party for which a court has determined that the Cuts ay and/or any County Agent was solely negligent or at fault. However, the Municipality agrees to, indemnify and hold the County and/or any County Agent harmless from and against any and all Claim(s) wh;ch are imposed upon, incurred by, or asserted against the County and/or any County Agent by any Paunic panty Agent under any circumstances or by any person which are based upon, result from, or arise from, or are in any way related to any alleged error, mistake, negligence or intentional act(s) or omission(s) by the Municipally and/or any Municipality Agent, including, but not limited to: (a) any alleged breach of legal duty to any person by the Municipality and/or any Municipality Agent; (b) any alleged failure by the Municipality or any Municipality Agent to comply with any Municipality duty or obligation in this Contract; and/or (c) any other Claim(s) based in any way upon any Municipality or Municipality Agent's services, buildings, equipment, or any other event, occurrence, duty, or obligation related or attendant thereto. §12. CANCELLATION OR TERMINATION OF THIS CONTRACT Except as follows, and notwithstanding any other term or provision ln any other section of tnis Contract, either Party, upon a minimum of sixty (60) calendar days written notice to the other Party, may cancel and/or completely terminate this Contract 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. 12,1. At 5:00 p.m. on the effective date of the cancellation of this Contract all Municipality and/or County obligations under this Contract, except those rights and obligations expressly surviving cancellation as provided for in this Contract. shall end. 12.2. The Municipality understands and agrees that the County's ability to provide the Services contemplated in this Contract depend upon current contractual relationships between the County and third party software and credit card and electronic check processing companies, and that if for any reason any such underlying third party contractual relationships should termirate, that the County's obligation to provide any Services under this Contract shall also end, immediately, and notwithstanding any minimum notice requirement contained in this Contract. 12.3. The Municipality agrees that any and all Mon cipality obligations, including, but not limited to, any and all indemnification and hold harmless promises, waivers of liability, record-keeping requirements, any Municipality payment obligations to the County, ancior any other related ooligations provided for in this Contract with regard to any acts, occurrences, events, transactions. or Claim(s) either occurring or having their basis in any events or transactions that occurred before the cancellation or completion of this Centred, shall survive the cancellation or completion of this Contract. §13. EFFECTIVE DATE. CONTRACT APPROVAL, AND AMENDMENT The Parties agree that this Contract, and/or any subsequent amendments thereto, shall not become effective prior to the approval by resolution of the Oakland County Board of Commissioners and the Municipality Governing Body. The approval and terms of this Contract, and/or any possinle subsequent amendments thereto, shall be entered in the oft cial minutes and proceedings of both the Oakland County Board of Commissioners and the Municipality Governing Body and she,' also he filed with the office of the Clerk of the County and the Clerk of the Municipality. §14. CONTRACT AMENDMENTS The Parties agree that this Contract, and/or any possible subsequent amendments, shall be filed with the Micnigan Secretary of ..=.1:ete end this Contract, and/or any possible subseauent amendments, shall not eecoiere ,.eieei:ive prior to this required filing with the Secretary of State. The Pates agree that except as expressly provided herein, this Contract shall not be changed, supplemented, or amended. in any manner: except as provided for herein, and no other act, verbal representation, cocument, usage or custom shall be deemed to amend or reodify this Contract in any manner. Any modifications, amendments, recessions, waivers or releases to this Contract must be in writing and agreed to by both Panes. The modification, amendment, recession waiver or release shall be signed by an expressly authorized Municipality Agent and by a County Agent authorized by the Oakland County Board of Commissioners. §15. NO THIRD-PARTY BENEELUARiES Except as expressly proviced herein for the benefit of the Parties (i.e., County or Municipality), this Contract does not, arid is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise. benefit, right to be indemnified (i.e., contractually, legally, equitably, or by implication) andtpr any right to be subrogated to any Party's rights in this Contract, and/or any other r:ght of any kind, in favor of any person, including, but not limited to, any County Agent or Municipality Agent or any "E-Commerce' Customer. any "E-Commerce" Customers legal representative, any organization, any alleged unnamed beneficiany or assignee. and/or any other person. §16. CONSTRUED AS A WHOLE The language of all parts of this Contract 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 Contract, the singular or plural number, possessive or nonpossessive shall be deemed to include the other whenever the context so suggests or requires. §17. CAPTIONS The section headings or titles and/or all section numbers contained in this Contract are intended for the convenience of the reader and net intended to have any substantive meaning and are net to be interpreted as part of this Contract. §15. NOTICES Except as otherwise exoressly provided for herein, any and all correspondence, invoices: ardor any other written notices required, permitted or provided for under this Contract to be delivered to either Party shall be sent to that Party by first class mail. All such written notices, including any notice canceling or terminating this Contract as provided for herein, shall be sent to the other Party's signatory to this Contract. or that signatory's successor in office, at the addresses shown in this Contract. All correspondence or written notices shall be considered delivered to a Party as of the date that such notice is deposited with sufficient postage with De U.S. Postal Service. §19. WAIVER OF BREACH The waiver of a breach of any provision of this Contract shall not operate or be construed as a waiver of any subsequent breach. Each and every right, remedy and power granted to either party or allowed it by law shall be cumulative and not exclusve ref any other, §20. FORCE MAJEURE (Events Beyond The Parties Control) _Notwithstanding any other term Or provision of this Contract, neither Party shall he liabe to the other for any failure of performance hereunder if such failure is de to any cause beyond the reasonable control of that Party and that Party cannot reasonably accommodate or mitigate the effects of any such cause. Such cause shall include, without limitation, acts of God, fire, explosion, vandalism, any law order, regulation, direction, action, or request of the Un ted States government or of any other government, national emergencies, insurrections, riots; wars, strikes. lockouts, work stoppages, or other labor difficulties, or the failure of any underlying contractual arrangement with any anticipated third-party provider of goods. services, software, including any condition precedent necessary to implement this Contract. Reasonable notice shall be given to the affected Party of any such event. The Municipality is expected, through alternative temporary or emergency service arrangements, to continue any Municipality obligations imposed by any applicable Federal or State Law or Local Ordinance. §21. ENTIRE CONTRACT This Contract, consisting of a total of fourteen (14) pages, sets forth the entire agreement between the County and the Municipality and fully supersedes any and all prior agreements or understandings between them in any way related to the subject matter hereof. ,t 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 Municipality in any way related to the subject matter hereof, except as expressly stated herein. This Contract shall not be ceanged or supplemented orally anti may be amended only as otherwise provided herein. For and in consideration of the mutual assurances, promises, acknowledgments, warrants representations, and agreements set forth in this Contract, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged. the undersigned hereby execute this Contract on behalf of the Parties, and by doing so legally obligate and bind the Parties to the terms and conditions of this Contract. IN WITNESS WHEREOF, hereby acknowledges that is authorized to execute this Contract on behalf of the Municipality and hereby accepts and binds the Municipality le the terms and cannons of this Contract. EXECUTED: DATE: - Municipality Chief Executive WITNESSED: DATE: Murecipalily Clerk IN WITNESS WHEREOF, Bill Bullard, Jr., Chairperson, Oakland County Board of Commissioners, hereby acknowledges that he has been authorized by a resolution of the Oakland County Board of Commissioners, a certified copy of which is attached. to execute this Contract on behalf of Oakland County, and hereby accepts and binds Oakland County to the terms and conditions of this Contract. EXECUTED: DATE: Bill Bullard, Jr.. Chairperson Oakland CoLrity Board of Commissioners WITNESSED: DATE: Ruth Johnson. Clerk) Register of Deeds County of Oakland Page 7: [1] Deleted .T:dward F. Sager 11/18/2010 352 PM Tbe Parties understand and agree that the in order to avail :hemselves of the convenience of the "E-Commeree" Service, "E-Commerce - Customer 81iall be required to agree to pay in addition to :heir credit card or electronic cheek payment for the products andlor services specified in this Contract an additional "Convenience Fee." This ''Convenience Fee - shail be added to the amount the "E-Commerce - Customer is remitting to the Municipality for payment for the products and/or services specified in :his Contract and shall he deposited along with any payment for said products and/or services into the designated Municipality bank account. The Parties understand and agree that the "Convenience Fee" for payment by credit card or electronic check to be charged to any E-Ct.mimerce Customer utilizing the F-Commerce - Services shall be in such an amount as either now established, by the Oakland County Board of Commissioners (MISCELLANEOUS RESOLUTION i7] 21. Oakland County Board of Commissioner Minutes, May 24, 2007, p. 246) or as may he hereafter revised by the Oakland County Board of Commissioners. For purposes of illustration, only the current "Convenience Fee" for the payment by credit card for a product or service in the amount of $200,00 is an additional $8.25. There is currently a flat "Convenience Fee - of 52.50 for each payment by electronic. check. The Parties understand and agree that except as provided below, the Municipality shall remit and repay to the County any and all moneys and amounts that have been received, deposited, or transferred into any Municipality bank account as a "Convenience Fee" as charged to or paid by any "13-Commerce" Customer in conjunction with the use of the "h-Commerce" Service. From each and every "Convenience Fee" amount received by the Municipality in conjunction with the use of the "E-Commerce" Service, and otherwise herein due and payable to the County, the County will deduct the actual amount, which in no event shall exceed the amount of the "Convenience Fee," the Municipality was charged as a "Merchant Service Fee" (currently approxintatay 1.8% of tlw total °fa credit card transaction amount charged by the "E- ('..?nuncrec" Custonicr) by the Municipality's third party "payment processing company - and will generate and mail an invc ice for the amount so calculated to the Municipality within 15 days of the end of every quarter. Under this Contract the end of a quarter shall be the last day of March, June, September, and December. "Merchant Service Fees" arc only those expenses actually incurred and paid by the Municipality for the basic cost and expense of transferrintt."E-Commerce Customers' funds into the Municipality bank account and do not include any such other costs or expenses that may be incurred by the Municipality in conjunction with "F-Commerce" Services including but not limited to any tines, nenahies, interest, credit card "cha7gebacks" andior any such other possible costs or expenses incurred by the Municipality under its .::ontract to the Municipality's third party "payment processin2 company". Municipality wi] pay by check, payable to the County. or Electronic Fund Transfer to the County cacn quarter for a'.I amounts due and mint!. the County as described herein, within thirty (30) calendar days following the actual receipt of every quartet invoice. Should the Municipality fail, for any reason, to timely pay the County the amounts required under this Contract, the MUNICIPALITY agrees that upon notice trom the Oakland County Treasurer to the Treasurer of the State of Michigan (or any other State of Michigan official authorized to disburse funds to the Municipality), the State of Michigan is authorized to withhold any funds due the Municipality from the State, and assign those funds to partially or completely offset any deficiency by the Municipality to the County. Such funds shall be paid directly to the County. Fur,her, the MUNICIPALITY waives any claims against the State or County, or their respective officials, for any such amounts paid to thQ County. Should the Municipality fail for any reason to timely pay the County.' the amounts required under this Contract, the Municipality agrees that the County 'treasurer shall be entitled to set-off and retain any amounts due the Municipality from any source of funds due thc Municipality in tfic 28 possession of the County, to partially or completely offset any deficiency by the Municipality, unless expressly prohibited by law. Such a transfer shall be considered an assignment by the Municipality to the County. Further, the Municipality waives any claims against the County, or its officials, for any such amounts paid to the County. Notwithstanding any other term or condition in this Contract, should the Municipality fail for any reason to timely pay the County the amounts required under this Contract, the Municipality agrees that the County may discontinue, upon thirty (30) days written notice to the Municipality, without any penalty or liability whatsoever, any County services or performance obligations under this Contract. None of these provisions shall operate to limit in any way the County's right to pursue any other legal remedies against the Municipality for the reimbursement of amounts due the County under this Agreement. The remedies in this paragraph are available to the County on an ongoing and successive basis, as the Municipality becomes delinquent in its payments. 29 I EERY APPROVE itlE FOREGOING RESIUTION / Resolution #10311 December 9, 2010 Moved by Middleton supported by Coleman the resolutions (with fiscal notes attached) on the amended Consent Agenda be adopted (with accompanying reports being accepted). AYES: Bullard, Burns, Coleman, Coulter, Douglas, Gershenson, Gingen, Greimel, Hatchet, Jackson, Jacobsen, Long, McGillivray, Middleton, Nash, Potts, Runestad, Schwartz, Scott, Taub. Woodward, Zack. (22) NAYS: (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). STATE OF MICHIGAN) COUNTY OF OAKLAND) I, Ruth Johnson, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on December 9, 2010, 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 9' day of December, 2010. gat Ruth Johnson. County Clerk