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HomeMy WebLinkAboutResolutions - 2015.01.29 - 21658MISCELLANEOUS RESOLUTION #15003 January 29, 2015 BY: Finance Committee, Tom Middleton, Chairperson RE: INFORMATION TECHNOLOGY - INTERGOVERNMENTAL AGREEMENT TO TRANSFER GIS AND RELATED DATA TO THE STATE OF MICHIGAN To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS the State of Michigan has requested certain geographic information systems (GIS) and related land data for use in its 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 the State of Michigan; and WHEREAS an intergovernmental agreement has been drafted (as attached) by the County's Corporation Counsel; and WHEREAS the agreement has been presented to and approved by the Michigan Department of Attorney General; 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 is a benefit to 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 Oakland County, and hereby accepts and binds Oakland County 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 VOTE: Motion carried unanimously on a roll call vote with Woodward and Quarles absent. Intergovernmental Agreement Between Oakland County and the State of Michigan For Access to Geographic Information System Data This Intergovernmental Agreement (Agreement) is between the County of Oakland, a Constitutional and Municipal Corporation, 1200 N. Telegraph Road, Pontiac, Michigan, 48341 (County) and the Michigan Department of Technology, Management and Budget, through its Center for Shared Solutions, P.O. Box 30026 Lansing, Michigan, 48909 (DTMB). In this Agreement, the County and State 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 Pursuant to the Enhanced Access to Public Records Act, 1996 PA 462, MCL 15.441 et seq., and the authority granted to the Director of DTMB pursuant to Executive Reorganization Order No. 2009-39, Section V(E), MCL 18.441, the County and State enter into this Agreement for the purpose of making data owned and maintained by the County on or in relation to its Geographic Information System (GIS) available to State without fee or cost for the purposes and uses described in this Agreement. 1.2. The public purpose of this Agreement is to assist the State, through DTMB's Center for Shared Solutions (CSS), in performing statutory and governmental duties and activities that benefit the State or the County, including improving the accuracy of the Michigan Geographic Framework (a base map). 2. Definitions 2.1. "Oakland County" means the County of Oakland and its departments, divisions, commissioners, elected and appointed officials, directors, board members, council members, authorities, officers, committees, employees, agents, subcontractors, volunteers, and their successors. 2.2. "State of Michigan" means the State of Michigan and its departments, commissions, boards, institutions, arms, agencies, and instrumentalities, and their present and future directors, officers, 1 employees, attorneys, agents, representatives, consultants, contractors, subcontractors, and volunteers. 2.3. "Geographic Information System Data" or "GIS Data" means the output from a Geographic Information System as defined by MCL 15.442(b) or the saved output (data file) provided by the County to the State pursuant to MCL 15.441, et seq. For purposes of this Agreement, GIS Data does not include derivative works developed by the State or data produced by the State from GIS Data or GIS Data that has been incorporated into an existing State database as an update or correction. 2.4. "Access Oakland Product" means any specially packaged public record, information or product, except GIS Data, developed, pursuant to MCL 15.441, et seq., for the purpose of making public records immediately available for public inspection or for purchase or copying by digital means, and available via the County's website. 2.5. "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, or any other amount for which either Party becomes legally 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. 2.6. "Consultants, Contractors or Subcontractors" mean non-State entities under contract to the State who use GIS Data in or for performance of services pursuant to their contract with the State. 2.7. "Third Party" means a person who requests GIS Data from the State and is not a State entity or a Consultant, Contractor, or Subcontractor performing services for the State. 3. Terms 3.1. The County agrees to provide the State, without fee or cost, GIS Data and Access Oakland Products, in retrievable form, which will allow the State, through CSS, to perform statutory and governmental duties and activities that benefit the State or County such as improving the 2 accuracy of the Michigan Geographic Framework. 3.2. Ownership and Proprietary Rights. All of the Access Oakland Products and 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, trademark, and other intellectual property law, The State 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 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. The State agrees that all of its use of the GIS Data and Access Oakland Products is at the State's own risk. The County will not be liable for any errors or omissions in the GIS Data, Access Oakland Products, or the County's services in making the GIS Data and Access Oakland Products available to the State. 3.4. 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 GIS Data and Access Oakland Products. The County does not represent or warrant that access to 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 GIS Data or Access Oakland Products must be made on behalf of the State by the State representative who shall be identified with specificity to the Oakland County One Stop Shop and Access Oakland staff. Either Party may designate a successor to make or receive such requests by providing prior written notice to the other Party. 3.6. Requests for GIS Data will be submitted to the Oakland County One 3 Stop Shop, and requests for Access Oakland Products will be submitted to the Access Oakland website. 3.7. The State will only use GIS Data and Access Oakland Products provided by the County under this Agreement in the performance of State of Michigan's authorized and permitted duties. The CSS shall instruct State employees authorized to use such data regarding the terms and conditions of this Agreement, including without limitation, their obligations to monitor access by Consultants, Contractors, or Subcontractors, as set forth in section 3.8, and all other limitations or requirements related to use of the data, including, by way of example and not limitation, provisions that address providing third parties access to the data and sale or resale of the data. The CSS shall promptly terminate a State Department's use of GIS Data or Access Oakland products if the Department or its employees fail to abide by the terms of this Agreement or who fail to enforce the provisions of this agreement that apply to Consultants, Contractors and Subcontractors. 3.8. The State will require any and all of its Consultants, Contractors, or Subcontractors who, on behalf of the State, require access to GIS Data and Access Oakland Products described in this Agreement, to execute a written agreement (similar to that provided at Exhibit 1) by which the State's Consultants, Contractors, or Subcontractors agree: 3.8.1 To be bound by the terms and conditions of this Agreement; 3.8.2 To refrain from using the GIS Data and Access Oakland Products for any purpose except those authorized by the State in relation to the performance of its official duties; and, 3.8.3 To the extent permitted by law, to destroy or delete all copies of GIS Data and Access Oakland Products, regardless of their form or method of storage, upon the completion or termination of its consulting, contracting, or subcontracting relationship with the State, the completion of its assigned tasks or duties, or termination of this Agreement. Upon the County's request, Consultants, Contractors, or Subcontractors will certify, in writing, compliance with this section, and provide such written certification to the County and State. 3.9. Unless otherwise required by law, the State is prohibited from providing a Third Party with access to the County's GIS Data unless it charges the Third Party a fee which equals both; (1) an amount that enables the County to recover over time its operating expenses directly related to providing access to GIS Data to a Third Party; and (2) an 4 amount that enables the State to recover over time its operating expenses directly related to providing GIS Data to a Third Party. Additionally, the State may, at its discretion, suggest that the Third Party obtain GIS Data or Access Oakland Products directly from Oakland County. 3.10. The State will remit to the County the portion of each fee collected from a Third Party under Paragraph 3.9, which equals the amount directly attributable to the operating expenses of the County in furnishing the GIS Data to the Third Party. In accordance with its policy, DTMB will pass on any applicable fees pursuant to the County's local Enhanced Access to Public Records policy within 45 days of providing the data to the Third Party. 3.11. Duration. This Agreement and any amendments will expire three (3) years from the date it is executed by the County or State, whichever is later. 3.12. Termination. Either Party may terminate this Agreement for any reason on seven (7) days written notice to the other Party. 3.13. To the extent permitted by law and upon termination or expiration of this Agreement, the State shall remove and delete all GIS Data and Access Oakland Products provided under this Agreement 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 GIS Data and Access Oakland Products have been completely removed. 3.14. Upon termination or expiration of this Agreement, Oakland County will remove any usernames and passwords assigned to the State for Access Oakland Products. 3.15. Provisions regarding the return of GIS Data and Access Oakland Products survive termination or expiration of this Agreement and apply to copies of GIS Data and Access Oakland Products located or identified as in the possession of the State or its Consultants, Contractors or Subcontractors after the date of termination or expiration. 3.16. Independent Contractor Relationship. Nothing in this Agreement creates an employer-employee relationship between the County 5 (including any of its employees) and State (including any of its employees.) 3.17. No Indemnification. Each Party will be responsible for any Claim made against it and for the acts or omissions of its agents and employees. 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. 3.18. 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. 3.19. In no event shall either Party be liable to the other for any special, indirect, or consequential damages, or any damages whatsoever resulting from loss of use, data, or profits arising out of or in connection with the use or performance of GIS Data or Access Oakland Products. 3.20. 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. 3.21. 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. 3.22. 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. 3.23. Agreement Modifications or Amendments. Any modifications, amendments, recessions, waivers, or releases to this Agreement must be in writing and agreed to by both Parties. 3.24. Entire Agreement. This Agreement represents the entire Agreement 6 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. 3.25. 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. This Agreement may be signed in counterparts, each of which has the force of an original, and all of which constitute one document. The undersigned execute this Intergovernmental Agreement on behalf of the Parties and by doing so, obligate and bind the State and the County to the stated terms and conditions. For the State of Michigan: Date: , 2015 Eric Swanson, Director Center for Shared Solutions (CSS) Department of Technology, Management & Budget For Oakland County: Date: , 2015 Michael J. Gingell, Chairperson Oakland County Board of Commissioners 7 Exhibit 1 to Intergovernmental Agreement Between Oakland County and the State of Michigan Regarding Access to Geographic Information System Data 1 [Consultant, Contractor, or Subcontractor] Agreement I hereby swear or affirm that I, , as an authorized representative of , have read and am familiar with the terms and conditions set forth in the Intergovernmental Agreement between Oakland County and the State of Michigan related to GIS Data and Access Oakland Products (Agreement). To the extent permitted by law, I agree to be bound by the Agreement; to refrain from using GIS Data and Access Oakland Products for any purpose except those authorized by the State in relation to the performance of official duties; and to destroy or delete all copies of GIS Data and Access Oakland Products, regardless of form or method of storage, upon the completion or termination of the consulting, contracting, or subcontracting relationship with the State, the completion of assigned tasks or duties, or termination of the Agreement. At the State or County's request, I will provide written certification of destruction or deletion of GIS Data and Access Oakland Products in compliance with § 3.8.3 of the Agreement. By Signature [Typed Name] [Business Name] [Business Address] [Telephone Number] [Email Address] Agency [Consultant, Contractor, or Subcontractors] Works For: Dated 1 To be modified as necessary depending on whether an individual or business entity. (Form of) Certification of Destruction or Deletion 2 I hereby swear or affirm that I, , as an authorized representative of (Name of Consultant, Contractor, or Subcontractor), and pursuant to the Intergovernmental Agreement between Oakland County and the State of Michigan (Agreement) have destroyed or deleted all GIS Data and Access Oakland Product subject to the Agreement. By: Signature [Typed Name] [Business Name] [Business Address] [Telephone Number] [Email Address] Subscribed and sworn before me on , 20 Dated 2 To be modified as necessary depending on whether an individual or business entity. Resolution #15003 January 29, 2015 Moved by Fleming supported by Quarles the resolutions (with fiscal notes attached) on the Consent Agenda be adopted. AYES: Fleming, Gershenson, Gingell, Gosselin, Hoffman, Jackson, KowaII, Long, Matis, McGillivray, Middleton, Quarles, Scott, Spisz, Taub, Weipert, Woodward, Zack, Bowman, Crawford. (20) NAYS: None. (0) A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the Consent Agenda were adopted. /- 30 -1.43 4-- I HEREBY APPROVE THIS RESOLUTION CHIEF DEPUTY COUNT,/ EXECLInvE ACTING PURSUANT TO MCL 45.559A (7) STATE OF MICHIGAN) COUNTY OF OAKLAND) I, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on January 29, 2015, 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 29th day of January, 2015.