HomeMy WebLinkAboutResolutions - 2013.03.06 - 20708MISCELLANEOUS RESOLUTION #13030 March 6, 2013
BY: Finance Committee, Tom Middleton, Chairperson
RE: INFORMATION TECHNOLOGY - INTERGOVERNMENTAL AGREEMENT TO TRANSFER GIS
AND RELATED DATA TO THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY'S
FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS FEMA has requested certain geographic information systems (GIS) and related land
data for use in its Digital Floodplain Insurance Rate Map (DFIRM) update projects to be conducted within
the County borders; and
WHEREAS the transmission of this data should be provided pursuant to an intergovernmental
agreement regarding the use of this data by FEMA; and
WHEREAS an agreement has been drafted (as attached) by the County's Corporation Counsel;
and
WHEREAS State statutes (MCL 45.556-p) state that the Board of Commissioners has the power
to "Enter into agreements with other governmental or quasi-governmental entities for the performance of
services jointly"; and
WHEREAS the transmission of the data would benefit the County's residents.
NOW THEREFORE BE IT RESOLVED that the Board of Commissioners approve the attached
intergovernmental agreement and authorize the transfer of the information cited therein.
BE IT FURTHER RESOLVED that the Board Chairperson is authorized to execute the
Agreement on behalf of the County of Oakland, and hereby accepts and binds the County of Oakland to
the terms and conditions of this Agreement.
BE IT FURTHER RESOLVED that no budget amendment is required at this time.
Chairperson, on behalf of the Finance Committee I move the adoption of the foregoing resolution.
FINANCE COMMITTEE
FINANCE COMMITTEE VOTE:
Motion carried unanimously on a roll call vote.
Intergovernmental Agreement
Between
The County of Oakland and
The United States Department of Homeland Security
This Intergovernmental Agreement (Agreement) is made between the County of Oakland, a
Constitutional and Municipal Corporation of the State of Michigan, 1200 N. Telegraph Road,
Pontiac, Michigan, 48341 (the County) and the United States Department of Homeland Security's
Federal Emergency Management Agency (FEMA). In this Agreement, the County and FEMA may
be referred to individually as "Party" or jointly as "Parties."
In consideration of the mutual promises, obligations, representations and assurances in this
Agreement, the Parties agree as follows:
1. Purpose of Agreement
1.1. The purpose of this Agreement is to make data owned and maintained by the County on or in
relation to the County's Geographic Information System (GIS) available to FEMA without fee or
cost for the purposes and uses described in this Agreement.
1.2. The County is given authority pursuant to the following state statutes to enter into this
Agreement:
1.2.1. Enhanced Access to Public Records Act, 1996 Mich. Pub. Acts 462, Mich. Comp. Laws
§15.441 et seq.; and
1.2.2. Urban Cooperation Act of 1967, 1967 Mich. Pub. Acts 7, Mich. Comp. Laws § 124.501
et seq.
1.3. FEIVLA is given authority pursuant to the following federal statutes to enter into this Agreement:
1.3.1. Section 1307 of the National Flood Insurance Act of 1968, Pub. L. No. 90-488, (1968)
(codified as amended at 42 U.S.C. § 4014): and
1.3.2. Water Resources Development Act of 1986, Pub. L. No. 99-662, (1986) (codified as
amended at 33 U.S.C. § 709(b)).
2. Definitions
2.1. "Oakland County" and "FEMA" shall be defined to include any and all departments, divisions,
commissioners, elected and appointed officials, directors, board members, council members,
authorities, officers, committees, employees, agents, subcontractors, volunteers and/or any such
persons' successors.
2.2. "County Geographic Information System Data or "County GIS Data" means any output
from the County's computerized database, developed pursuant to Mich. Comp. Laws § 15.441 et seq.,
for the purpose of making public records immediately available for public inspection or their
purchase or copying by digital means.
Intergovernmental Agreement between County of Oakland and DHS/FEMA
Re: Data Sharing
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2.3. "Access Oakland Product" means any specially packaged public record, information or
product, developed pursuant to Mich. Comp. Laws § 15.441 et seq., for the purpose of making public
records immediately available for public inspection or their purchase or copying by digital means,
and available via the County's website.
2.4. "Claim" means any and all losses, complaints, demands for relief, damages, lawsuits, causes of
action, proceedings, judgments, deficiencies, penalties, costs and expenses, including reimbursement
for reasonable attorney fees, witness fees, court costs, investigation, litigation expenses, amounts
paid in settlement, and/or any other amount for which either Party becomes legally and/or
contractually obligated to pay, 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 whether commenced or threatened.
2.5. "Consultants, Contractors or Subcontractors" mean non-FEMA entities under contract to
FEMA who use County GIS Data in or for performance of services pursuant to their contract with
FEMA.
2.6. "Third Party" means a person who requests County GIS Data from FEMA and is not a FEMA
entity or a Consultant, Contractor or Subcontractor performing services for FEMA..
3. Terms
3.1. The County agrees to provide FEMA, without fee or cost, with data available as County GIS
Data and/or Access Oakland Products in retrievable form for the purpose of updating FEMA's
Digital Flood Insurance Rate Maps (DFIRMS) and for the purpose of conducting its other
governmental or statutory duties. The County acknowledges that, in the process of updating the
DFIRMs, FEMA shall incorporate information and data obtained from the GIS Data and/or Access
Oakland Products into FEMA's maps, work product and records. The County further acknowledges
that FEMA is required to maintain the DFIRIVIs for public inspection, 44 C.F.R. § 64.3(c), maintain
FEMA's official maps in FEMA files in Washington, D.C., 44 C.F.R. § 64.4, follow its
administrative regulations concerning the mapping of special flood hazards, 44 C.F.R. Part 65, and
follow its administrative regulations and procedures for map correction, 44 C.F.R. Part 70.
Moreover, FEMA requires all supporting data including, but not limited to, topography and base map
data used for FEMA's mapping to be maintained in FEMA's official project files. As acknowledged
in Section 3.11.4 of this Agreement, the County agrees that once FEMA incorporates information
and data from the County GIS Data and/or Access Oakland Products into FEMA's GIS Data, maps,
work product and records during the course of FEMA's governmental or statutory duties, that
information and data shall become part of FEMA's official records. No term or provision of this
Agreement shall be interpreted to require FEMA to delete or destroy data created by FEIVIA and
incorporated into FEMA's GIS Data, maps, work product or records; or to delete records created by
FEMA in the course of its governmental or statutory duties which contain data obtained from the
County GIS Data or Access Oakland Products.
3.2. Ownership and Proprietary Rights. All of the Access Oakland Products and County GIS
Data, including but not limited to text, data, photographs, maps, images, graphics, audio and video
clips, trademarks, logos and service marks (collectively the Content) are owned by the County or
licensed to the County by third parties who own the Content. The Content is protected by copyright.
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Intergovernmental Agreement between County of Oakland and DHS/FENIA
Re: Data Sharing
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trademark and other intellectual property law. The County certifies that the license it has obtained
from all third parties who own the Content permits the County to provide all such County GIS Data
and Access Oakland Products to FEMA for FEMA's use as set forth in this Agreement, and the
County shall provide FEMA with a copy of all such license(s). The County agrees to cooperate
promptly and assist FEMA with obtaining a similar use agreement or license from all third parties
who own the Content. FE1VIA will cooperate promptly with any reasonable request by the County in
any investigation of infringement of copyright or other proprietary right related to Access Oakland
Products or County GIS Data.
3.3. While the County uses reasonable efforts to provide accurate and up to date information, much
of the information provided is gathered by Third Parties and has not been independently verified by
the County. FEMA agrees that all use of the County GIS Data and Access Oakland Products is at
FEMA's risk. The County will not be liable for any errors or omissions in the County GIS Data,
Access Oakland Products, or the County's services in making the County GIS Data and Access
Oakland Products available to FEMA.
3.4. County GIS Data and Access Oakland Products are provided "as is". The County expressly
disclaims any and all warranties, express or implied, including, but not limited to, any warranties of
accuracy, reliability, title, merchantability, non-infringement, fitness for a particular purpose, or any
other warranty, condition, guarantee or representation, whether oral, in writing, or in electronic form
including, but not limited to, the accuracy or completeness of any information contained in or
provided by the County GIS Data and Access Oakland Products. The County does not represent or
warrant that access to County GIS Data or Access Oakland Products will be uninterrupted or that
there will be no failures, errors, omissions, or loss of transmitted information.
3.5. All requests for County GIS Data or Access Oakland Products for the uses specified in
Paragraph 3.1 shall be made on behalf of FEMA by an authorized representative of FEMA. To
verify whether or not a representative of FEMA is authorized to request County GIS Data or Access
Oakland Products on behalf of FEMA, the County may contact FEMA's Point of Contact identified
in paragraph 4 below.
3.6. Requests for County GIS Data will be submitted to the One Stop Shop, Oakland County,
Michigan and requests for Access Oakland Products will be submitted to the Access Oakland
website. Either Party to this Agreement may designate another individual to make or receive such
requests by providing prior written notice to the Points of Contact identified in paragraph 4 below.
3.7. FEMA will only use County GIS Data and Access Oakland Products provided by the County
under this Agreement in the performance of FEMA's authorized and permitted duties.
3.8. FEMA will require any and all of its Consultants, Contractors or Subcontractors who, on behalf
of FEMA, require access to County GIS Data and Access Oakland Products described in this
Agreement to agree in writing:
3.8.1 To refrain from using the County GIS Data and Access Oakland Products for any purpose
except those authorized by FEMA in relation to the performance of its official duties:
3.9. FEMA shall comply with the provisions of Mich. Comp. Laws § 15.443(1)(d). Except as
provided in section 3.8 above, FEMA agrees that it shall refrain from providing County GIS Data
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Intergovernmental Agreement between County of Oakland and DHS/FEMA
Re: Data Sharing
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and Access Oakland Products to Third Parties as defined in Mich. Comp. Laws 15.442(i). FEMA
shall refer all other Third Party requests for County GIS Data and Access Oakland Products, not
related to this Agreement, to the County whereby Third Party's may purchase or otherwise acquire
GIS Data or Access Oakland Products. As set forth in paragraph 3.1 of this Agreement, the County
agrees that once FEMA has incorporated the data and information contained in the County GIS Data
or Access Oakland Products into FEMA's GIS Data, maps, work product or records, FEMA shall be
required to give Third Parties access to FEMA's GIS Data, maps, work product or records in
accordance with federal law including, but not limited to, in the event a Third Party seeks to review,
correct or amend FEMA's DFIRM. No term or provision of this Agreement shall be interpreted to
prohibit FEMA from giving Third Parties access to FEMA's GIS Data, maps, work product or
records which incorporate data and information from the County GIS Data or Access Oakland
Products.
3.10. Duration. This Intergovernmental Agreement and any subsequent Amendments shall be for a
term of three (3) years from the date the signed and executed Agreement is filed with the Clerk of the
County of Oakland and the Secretary of State for the State of Michigan, as required by Mich. Comp,
Laws § 124.510(4).
3.11. Termination. Either Party may terminate this Agreement on seven (7) days written notice for
any reason including, but not limited to, failure by FEMA to provide adequate security to protect the
County GIS Data and Access Oakland Products from free and/or unauthorized access or use by any
Third Party as defined in Mich. Comp. Laws §15.442(i) or other failure to comply with Mich. Comp,
Laws § 15.441 et seq.
3.11.1 As stated in Paragraph 3.1 above. FEMA requires all supporting data including,
but not limited to, topography and base map data used for FEMA' s mapping to be maintained in
FEMA's official project files. With the exception of one (1) official copy of County GIS Data
and Access Oakland Products FEMA requires be maintained with its official project files, upon
termination or expiration of this Agreement, FEMA shall remove and delete all other copies of
the County GIS Data from any and all electronic devices, computers, computer hard drives,
databases, and electronic storage devices within seven (7) calendar days of termination and, on
request from the County, certify in writing that the County GIS data has been completely
removed except as otherwise provided by this Agreement.
3.11.2 Upon termination or expiration of this Agreement, Oakland County will remove
any Access Oakland Product usemames and passwords assigned to FEMA.
3.11.3 Provisions regarding the return of County GIS Data and Access Oakland Products
shall survive tei mination and/or expiration of this Agreement and apply to copies of County GIS
Data and Access Oakland Products located or identified as in the possession of FEMA and/or its
Consultants, Contractors or Subcontractors after the date of termination and/or expiration.
3.11.4 Nothing in this Agreement shall be interpreted to require FEMA to delete or
destroy data created by FEMA and incorporated into FEMA's GIS Data, maps, work product or
records; or to delete records created by FEMA in the course of its governmental or statutory
duties which contain data obtained from County GIS Data or Access Oakland Products.
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Intergovernmental Agreement between County of Oakland and DHS/FEMA
Re: Data Sharing
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3.12. Independent Contractor Relationship. Nothing in this Agreement creates an employer-
employee relationship between the County (including any of its employees) and FEMA (including
any of its employees.)
3.13. No Indemnification. Each Party will be responsible for any Claim made against it and for the
acts or omissions of its agents and employees. Congress has provided that the exclusive remedy for
common law torts committed by employees of the U.S. Government, acting within the scope of their
employment, is an action against the United States under the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2671-2680. Neither Party has any rights under this Agreement to be indemnified
by the other Party or any of its agents or employees in connection with any Claim.
3.14. In any Claim that may arise from the performance of this Agreement, each Party shall seek its
own legal representation and bear the costs associated with such representation, including attorney
fees. Should the County be sued for any acts or omissions arising directly from this Agreement,
it will provide a copy of the Summons and Complaint to an attorney of the FEMA Office of
Chief Counsel within (7) working days. FEMA will, at the earliest date practicable after receipt
of such Summons and Complaint, provide the same to the U.S. Attorney in the district in which
the suit is filed, along with its recommendations as to whether the U.S. Attorney should (a) file a
notice removing the suit to U.S. District Court pursuant to 28 U.S.C. § 1441, (b) assert any
appropriate defenses, subject to the Justice Department's authority per 28 U.S.C. §§ 516 and
517, (c) file a certification in accordance with 28 U.S.C. § 2679, or (d) consider an offer in
compromise to any party to resolve the litigation.
3.15. In no event shall the County be liable for any special, indirect, or consequential damages or any
damages whatsoever resulting from loss of use, data or profits arising out of or in connections with
the use or performance of County GIS Data or Access Oakland Products provided to FEMA under
this Agreement. This provision shall not be interpreted as conflicting with paragraph 3.13 of this
Agreement.
3.16. No Third Party Beneficiaries. Except as provided for the benefit of the Parties, this
Agreement does not and is not intended to create any obligation, duty, promise, contractual right or
benefit, right to indemnification, right to subrogation or any other right in favor of any other person
or entity.
3.17. Reservation of Rights. This Agreement does not, and is not intended to impair, divest,
delegate, or contravene any constitutional, statutory, or other legal right, privilege, power, or
immunity of the Parties. Nothing in this Agreement is a waiver of governmental immunity by either
Party.
3.18. Unless this Agreement expressly states otherwise, it does not, and is not intended to, transfer,
delegate, or assign to the other Party any civil or legal responsibility, duty, obligation, duty of care,
cost, legal obligation or liability associated with any governmental function delegated or entrusted to
either Party under any existing law or regulation.
3.19. Agreement Modifications or Amendments. Any modifications, amendments, recessions,
waivers, or releases to this Agreement must be in writing and agreed to by both Parties.
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Intergovernmental Agreement between County of Oakland and DHS/FEMA
Re: Data Sharing
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3.20. Entire Agreement. This Agreement represents the entire Agreement between the Parties and
supersedes all other Agreements between the Parties governing the matters described. The language
of this Agreement will be construed as a whole according to its fair meaning, and not construed
strictly for or against any Party.
3.21. The Parties have taken all actions and secured all approvals necessary to authorize and
complete this Agreement. The persons signing this Agreement on behalf of each Party have legal
authority to sign this Agreement and bind the Parties to the terms and conditions.
4. Points of Contact.
4.1 The FEMA Point of Contact is as follows:
Erin Maloney
Civil Engineer
FEMA Region V
536 S. Clark Street, Suite 600
Chicago, Illinois 60605
312-408-5435
Erin.Maloney@fema.dhs.gov
4.2 The County of Oakland's Point of Contact is as follows:
Anita Campbell, IT Supervisor
Land Management Technologies
County of Oakland
1200 N. Telegraph Road
Pontiac, Michigan, 48341
(248) 858-2388
5. Non-Fund Obligating Agreement. Nothing in this Agreement shall authorize either Party to
obligate or transfer any funds. Any specific work or activity that involves the transfer of funds,
services, or property among the Parties will require execution of a separate agreement, and will
be contingent upon the availability of appropriated funds. Such activities must be independently
authorized by appropriate statutory authority. This Agreement does not provide such authority.
6. Savings Clause. In the event any provision of this Agreement shall be deemed contrary to or
in violation of any applicable existing law or regulation in the State of Michigan or the United
States of America, only the conflicting provision(s) shall be deemed null and void, and the
remaining provisions of the Agreement shall remain in effect.
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Intergovernmental Agreement between County of Oakland and DHS/FEMA
Re: Data Sharing
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Signature Page
For the Federal Emergency Management Agency:
Christine Stack, Director
Mitigation Division
Date:
For Oakland County:
Michael J. Gingell, Chairperson
Oakland County Board of Commissioners
Date:
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I HEREBY APPROV - "ESOLUTION
CHIEF DEPUTY COUNTY EXECUTIVE
ACTING PURSUANT TO NICL 45,559A (7)
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Resolution #13030 March 6, 2013
Moved by Bosnic supported by Quarles the resolutions (with fiscal notes attached) on the Consent
Agenda be adopted (with accompanying reports being accepted).
AYES: Dwyer, Gershenson, Gosselin, Hatchett, Hoffman, Jackson, Long, Matis, McGillivray,
Middleton, Quarles, Scott, Spisz, Weipert, Woodward, Zack. (18)
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, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and
accurate copy of a resolution adopted by the Oakland County Board of Commissioners on March 6, 2013,
with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at
Pontiac, Michigan this 6th day of March, 2013.
Xigeft/
Lisa Brown, Oakland County