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HomeMy WebLinkAboutResolutions - 2011.01.20 - 10351MISCELLANEOUS RESOLUTION #11009 JANUARY 20, 2011 BY: Finance Committee, Tom 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 1996, the Enhanced Access to Public Records Act, the Board of Commissioners in Miscellaneous Resolution #97165 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 @ccess 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 eGovernment 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 below; and WHEREAS the County and the Municipalities listed below went on to enter into such an COMMERCE SERVICES SERVICES AGREEMENT; and WHEREAS the County and the Municipalities listed below now wish to replace the existing COMMERCE SERVICES SERVICES AGREEMENT with a new E-COMMERCE SERVICES AGREEMENT that would simplify and expedite the payment to the County of the Enhanced Access Fee paid by E- COMMERCE SERVICES customers. FINANCE COMMI I I EE Motion carried unanimously on a roll call vote with Woodward absent. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves entering into the attached replacement E-COMMERCE SERVICES AGREEMENT (the "Agreement," copy attached and incorporated herein) with each of the following Municipalities upon the terms and conditions stated in this Agreement: 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 Municipality's governing body, and any other Municipality assurances and documentation required in the Agreement, the Oakland County Clerk 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. BE IT FURTHER RESOLVED that no budget amendment is required at this time. Chairperson, on behalf of the Finance Committee, I move adoption of the foregoing resolution. FINANCE COMMI I I EE E-COMMERCE SERVICES AGREEMENT This E-COMMERCE 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" Municipality"). In this Contract, either the County and/or the Municipality may also be referred to individually as a "Party" or jointly as "Pates." 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 described and defined in this Contract) and has agreed in 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, that 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: §1. 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 Agents" shall also include any person who was a County Agent anytime during E-COMMERCE. SERVICES AGj BETWEEN THE COUNTY OF 0/A...:..:,NL) AND 1.1 Page of 13 3 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 and all County Agents specifically 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, 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, through, 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 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, 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 Claim(s) of any kind whatsoever which are imposed on, incurred by, or asserted against either the County and/or any County Agent, as defined 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 third-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, who 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, SEIWICE 1.1 Di., • : HI HE COUNTY OF ONO :'N 1 AND Page 2 of -13 • 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 "Services", 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, host and maintain a "E-Commerce" System and its connection to the Internet where "E-Commerce" Customers can pay for taxes, licenses, permits and fees by means of a credit card or electronic check, utilizing the Internet. For purposes of illustration, these 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, 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 utilizing 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 "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 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 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 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 payments processed through the County's "E- E-COMMERCE. SERVICES AGREEMENT BE WEEN THE COUNTY OF OAKLAND AND Page 3 of .13 5 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 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 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 in 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" Information 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 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 and exclusively responsible for furnishing all Information Technology Department Personnel with all job instructions, job 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 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 Information 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 ECOMMERCE SERVICES AGREEMENT BETWEEN THE: COUNTY OF OAKLAND AND Page 4 o113 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 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 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 proficiency(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. '.:ERVICES A• NT cotiNTY OF OA AND page 6 of 13 7 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 Municipality Agent. 2.3.7. The Municipality shall not otherwise provide, furnish or assign any Information Technology 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 this 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, 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. TERM OF CONTRACT The Parties agree that 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 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 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 responsibility 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 E.-COMMERCE SEF,WICES .AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND of 13 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 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 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 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. FINANCIAL ARRANGEMENTS TO REIMBURSE 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 time 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 Fee will be directed to a depository account designated and owned by the County. 6.4 Unless otherwise agreed to by the 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. §7. LIABILITY The Municipality 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. §6. E-C('• 15.7-1 V.; •. :11".:N4 THE COUNTY OF OA!,<L••.NID AND c:f1' .13 9 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 the 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 Municipality, 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, including, but not limited 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 THE COUNTY 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 employed and assigned based on appropriate qualifications and other factors as decided by the Municipality. The Municipality agrees that it shall be solely responsible for furnishing all Municipality Agents with all job instructions, job descriptions and job specifications and shall solely control, direct, and supervise all Municipality Agents and shall be solely responsible for the means and manner 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 of any Municipality Agent's statutory, contractual (e.g., union, employment, or labor contract), constitutional, common law employment right, and/or civil rights by the Municipality. The Municipality agrees to indemnify and hold harmless the County E-CC • • • • BETWEEN • COUNTY 01 .A! • Jr 1 0 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 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, 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 electronic 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. 8.6 The Municipality understands and agrees that the County's Services under this Contract are possible, in part, because of services provided by PayPal 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 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. 8.7 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 the 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. !Cr:: SERVICES • iNIF:::N"T" 1HE COUNTY OF AND 11 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 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 provision 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 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. 11.1 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. 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 liability, record-keeping requirements, any Municipality payment obligations to the County, and/or any other related obligations 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 Contract, shall survive the cancellation or completion of this Contract. §12. 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 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. R E NIE 1-1F Cr.1...111Y OAKIJ: of 13 j. 12 FT-C(Div5,1:.E. BETWEEN AGREEMENT Y OF OAKLAND AND §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 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, 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 nonpossessive 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, 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 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 performance 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, Pag,:; • of 13 13 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. §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 hereof. It is further understood and agreed that the terms and conditions herein are contractual and are not a mere recital and that there are no other agreements, understandings, contracts, or representations between the County and the 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 Contract as that term is defined in section 12 of this Contract. The Municipality, however, agrees that any and all Municipality 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, and/or any other related obligations provided for in the Prior 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 the Prior Contract, shall survive the termination of the Prior Contract. 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 to the terms and conditions of this Contract. EXECUTED: DATE: Municipality Chief Executive WITNESSED: DATE: Municipality Clerk ERA/10Es . .ourrry OF OH.: NT 14 13 01 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: Michael J. Gingell, Chairperson Oakland County Board of Commissioners WITNESSED: DATE: Bill Bullard, Jr., Clerk/ Register of Deeds County of Oakland . • f. ; • : ERVICES A(.3i • '• • "Ti•:!: •-•.• •••fl"Y OF OAKLAr; -AND e 15 hillOVE THE FOiiING RESOLUTION PLIR6UANT TO 1973 PA 139 F,La_ k oct,1. Resolution #11009 January 20, 2011 Moved by Scott supported by Woodward the resolutions (with fiscal notes attached) on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Covey, Crawford, Dwyer, Gershenson, Gingell, Gosselin, Greimel, Hatchett, Hoffman, Long, Matis, McGillivray, Middleton, Nash, Nuccio, Potts, Quarles, Runestad, Scott, Taub, Weipert, Woodward, Zack, Bosnic. (24) NAYS: None. (0) A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the Consent Agenda were adopted (with accompanying reports being accepted). STATE OF MICHIGAN) COUNTY OF OAKLAND) I, Bill Bullard Jr., 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 January 20, 2011, 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 20th day of January, 2011. Bill Bullard Jr., Oakland County